Lesson 4 Flashcards
1
Q
What are the two main types of property ownership?
A
Joint Tenancy and Tenancy in Common.
2
Q
What is a key feature of joint tenancy regarding ownership shares?
A
There are no specific shares of ownership in joint tenancy.
3
Q
What is the “right of survivorship” in joint tenancy?
A
The right of survivorship means that upon the death of one joint tenant, their share automatically passes to the surviving joint tenants.
4
Q
What are the four unities in joint tenancy?
A
The four unities are time, title, interest, and possession.
5
Q
Why is joint tenancy popular among married couples?
A
Because of the right of survivorship, which simplifies the transfer of ownership upon death.
6
Q
When does the last surviving owner’s will take effect in joint tenancy?
A
After the death of the last surviving joint tenant.
7
Q
What happens to the right of survivorship in cases of murder between joint owners?
A
The right of survivorship does not apply.
8
Q
What event can sever a joint tenancy?
A
Bankruptcy can sever a joint tenancy, turning it into a tenancy in common.
9
Q
How are ownership shares characterized in tenancy in common?
A
Owners hold undivided shares in the property.
10
Q
What are “words of severance” in the context of tenancy in common?
A
They indicate the intention to create distinct shares in the property.
11
Q
What does “unity of possession” mean in tenancy in common?
A
All tenants in common have equal rights to possess and use the entire property.
12
Q
What makes tenancy in common appealing for investment purposes?
A
It allows flexibility in ownership shares, which can be tailored to different investment stakes.
13
Q
Can tenants in common bequeath their share through a will?
A
Yes, each owner can bequeath their share to a beneficiary through a will.
14
Q
Is there a right of survivorship in tenancy in common?
A
No, there is no right of survivorship in tenancy in common.
15
Q
What is the Unity of Possession in joint tenancy?
A
Each joint tenant is fully entitled to possession of the entire property, meaning no one can claim a specific part as their own.
16
Q
What is the Unity of Interest in joint tenancy?
A
Joint tenants are entitled to one and the same interest in the property, meaning they cannot transfer their interests without the agreement of all joint tenants.
17
Q
What does Unity of Title mean in joint tenancy?
A
Joint tenants must obtain their interests from the same legal document or transfer, ensuring a shared basis of ownership.
18
Q
What does Unity of Time refer to in joint tenancy?
A
Joint tenants must acquire their interests at the same time, meaning their rights to the property begin simultaneously.
19
Q
What is the requirement for owners to convert from Tenancy in Common to Joint Tenancy?
A
Owners must hold equal shares of the property (e.g., 50% - 50%).
20
Q
What form must be filled out to declare holding as Joint Tenants?
A
Fill out Form 15 - Instrument of Declaration to Hold as Joint Tenants.
21
Q
Where do you register the conversion to Joint Tenancy?
A
Register the conversion with the Singapore Land Authority.
22
Q
Can a joint owner unilaterally sever a joint tenancy?
A
Yes, any joint owner can unilaterally sever a joint tenancy and convert it to Tenancy in Common without the consent of other joint owners.
23
Q
What form is required to sever a joint tenancy?
A
Fill out Form 17 - Instrument of Declaration by a Joint Tenant to Sever a Joint Tenancy.
24
Q
How should Form 17 be served to other joint owners?
A
Serve a copy of Form 17 personally or by registered mail to other joint owners.
25
Where is the severance of joint tenancy registered?
Register the severance with the Singapore Land Authority.
26
How must declarations for conversion be made?
All declarations must be made in the presence of a Commissioner for Oaths.
27
What can a co-owner do if they disagree with the conversion to Tenancy in Common?
They can bring the matter to court if any co-owners disagree with the conversion.
28
What are the three main types of entities that can hold property?
Individuals, Businesses, and Institutions.
29
What is the age of majority for an individual to legally hold property?
The age of majority is 21 years old.
30
What is the minimum age at which an individual can enter into a tenancy agreement?
Individuals aged 18 years old can enter into a tenancy agreement for no more than 3 years.
31
What are the types of businesses that can hold property?
Types include sole proprietorships, partnerships, and private limited companies.
32
How can partnerships hold property?
Partnerships can hold property as tenants in common or through trustees.
33
What types of institutions can hold property?
Societies, clubs, and associations with more than 10 persons can hold property.
34
How many trustees are typically required for these institutions?
Institutions typically require 2 to 4 trustees to hold property.
35
What is a key exception to the restriction on trustees?
The restriction of 4 trustees does not apply to trusts for charitable, religious, or public purposes, according to S36 of the Trustee Act.
36
What does the Residential Property Act govern in Singapore?
The Residential Property Act regulates the purchase of residential properties by entities, particularly with respect to foreign ownership.
37
Can entities with foreign shareholders purchase restricted property in Singapore?
No, they cannot purchase restricted property without meeting specific conditions.
38
What are 2 conditions that entities with foreign shareholders must meet to purchase restricted property?
They must obtain approval from the Singapore Land Authority (SLA) and Land Dealings Approval Unit (LDAU).
39
What is a Power of Attorney (POA)?
A Power of Attorney is an instrument created by a person (the donor) who appoints another person (the donee) to act on their behalf.
40
Who is the creator of the Power of Attorney called?
The creator of the POA is called the Donor.
41
What is the minimum age requirement for the donor of a POA?
The donor must be 21 years or older.
42
Who is the person appointed to act on behalf of the donor?
The person appointed is called the Donee.
43
What authority does the donee have under a Power of Attorney?
The donee has the authority to act on behalf of the donor in all circumstances unless the POA document specifies restrictions.
44
What are some examples of actions that a donee may perform under a Power of Attorney?
Examples include: a) Accessing a bank safe deposit box b) Buying and selling property c) Filing tax returns
45
When is a Power of Attorney usually valid?
A POA is usually valid until it is revoked by the donor, upon the donor’s death, incapacity of the donor, or upon an event specified in the POA document.
46
Can a Power of Attorney be revoked?
Yes, a Power of Attorney can be revoked by the donor at any time as long as they are capable of making that decision.
47
What is a Lasting Power of Attorney (LPA)?
A Lasting Power of Attorney is a legal document that allows a donor to appoint one or more persons (donees) to make decisions and act on their behalf if the donor loses mental capacity.
48
What are the 3 eligibility requirements for a donor to create an LPA?
The donor must be: i) 21 years or older, ii) Have mental capacity, and iii) Not be an undischarged bankrupt.
49
What types of matters can donees make decisions on behalf of the donor?
Donees can make decisions on personal welfare and property & affairs matters.
50
What does "property & affairs matters" include? Give at least 3 examples.
It includes: i) Buying, selling, renting, and mortgaging property, ii) Opening and operating bank accounts, iii) Receiving income and financial entitlements, iv) Handling tax matters, v) Paying rent and household expenses, vi) Investing savings, and vii) Purchasing needed vehicles or equipment.
51
What restrictions are placed on the donee in an LPA?
A donee cannot: i) Create a will on behalf of the donor, ii) Make gifts on behalf of the donor, iii) Make decisions if the donor regains mental capacity (but the LPA remains valid).
52
Can a donor appoint more than one donee in an LPA?
Yes, a donor can appoint multiple donees and specify how they should make decisions (jointly or jointly and severally).
53
What does it mean for donees to act "jointly"?
If donees act jointly, they must make decisions together and cannot act separately.
54
What does it mean for donees to act "jointly and severally"?
Donees can either make decisions together or separately, and both types are valid.
55
What happens if the donor appoints more than one donee but does not specify how they should act?
The law assumes they are to act jointly.
56
What happens to the LPA upon the death of the donor?
The LPA is cancelled upon the death of the donor.
57
What is the primary purpose of a Will?
A Will provides for the administration and distribution of the donor's estate (all that they own) among their beneficiaries after their death.
58
What is a gift inter vivos?
A gift inter vivos is when a property owner transfers their property to another person during their lifetime without receiving any monetary consideration.
59
What is a key characteristic of a gift inter vivos?
The gift is irrevocable, meaning it cannot be taken back once made.
60
Who is the person that makes the gift in a gift inter vivos?
The person who makes the gift is called the donor.
61
Who is the person that receives the gift inter vivos?
The person who receives the gift is called the donee.
62
Is stamp duty applicable to gifts inter vivos?
Yes, stamp duty is payable on the transfer of property in the form of a gift.
63
What additional approvals are required for inter vivos gift properties?
Inter vivos gift properties are subject to mortgagee and CPF (Central Provident Fund) board’s approval.
64
What is the first step in the simple procedure for making a gift inter vivos?
Prepare a Deed of Gift.
65
What is the second step after preparing a Deed of Gift?
Pay Stamp Duty based on the market valuation of the property.
66
What is the final step after preparing a Deed of Gift?
Complete the Transfer Instrument and submit it to the Singapore Land Authority (SLA).
67
What happens when a donee receives a gift from a property owner who goes bankrupt within 5 years?
The gift shall be void unless it was transferred with consent from the Court.
68
What happens to gifts deemed as a "transaction at undervalue" if the donor becomes bankrupt?
These gifts may be set aside and become part of the estate of the creditor, causing the donee to lose rights to the property.
69
What must the donee prove to retain rights to the gifted property?
The donee must prove that at the time of the gift, the donor was in good financial condition.
70
What does the Insolvency, Restructuring and Dissolution Act 2018 address?
It deals with insolvency of companies, bankrupts, and related persons.
71
What principles from the repealed Bankruptcy Act apply under the Insolvency, Restructuring and Dissolution Act regarding transfers of property?
Similar principles apply to transfers of property made within 3 years before the donor becomes bankrupt. These transfers may be voidable if they appear to be made to hide assets from creditors.
72
What types of transactions are subject to review under the Insolvency, Restructuring and Dissolution Act?
Gifts or transactions at undervalue are subject to review by the Court.
73
Who decides the final outcome concerning property transfers under the Insolvency, Restructuring and Dissolution Act?
The Court decides on the final outcome of such property transfers.
74
What are the rules for selling an HDB flat by a bankrupt Singapore citizen?
No approval is required to sell an HDB flat.
75
What are the rules for selling private property by a bankrupt Singapore citizen?
Official Assignee approval is required to sell private property.
76
What are the rules for selling and buying HDB / private property by a bankrupt non-Singapore citizen?
Official Assignee approval is required.
77
What happens when a person dies with a will in Singapore?
When a person dies with a will (testate), the court issues a Grant of Probate and appoints the executor(s) named in the will to transfer the deceased’s property to successors according to the will.
78
What happens when a person dies without a will in Singapore?
When a person dies without a will (intestate), the court issues a Letter of Administration and appoints an administrator to distribute the property according to the Intestate Succession Act.
79
What is the role of the Probate and Administration Act?
The Probate and Administration Act is the law that sets out the rules for handling a deceased person's estate. It explains how administrators and executors are appointed. It also outlines how the estate should be distributed to the beneficiaries, whether the person had a will or not.
80
How many administrators or executors can be appointed according to the Probate and Administration Act?
A maximum of 4 administrators or executors can be appointed.
81
What is the minimum age requirement for an administrator or executor?
The administrator or executor must be at least 21 years old.
82
What happens to bankrupt assets upon the death of an individual?
Creditors get priority over bankrupt assets in the distribution of the estate.
83
What is the minimum age for a testator to create a will in Singapore?
The testator must be at least 21 years old.
84
What are the requirements for a will to be valid?
The will must be created in writing, signed by the testator, and witnessed by 2 or more witnesses.
85
Under what conditions could a will be considered void?
A will is void if: i) A beneficiary who is a witness of the will, ii) A beneficiary is the spouse of a witness, or iii) The will is revoked by marriage.
86
What happens to CPF money without proper nomination upon death?
It will be distributed according to the Intestate Succession Act.
87
What happens to the estate if the deceased is survived by a spouse and no children or parents?
The spouse gets everything.
88
How is the estate divided if there is a spouse and children (or their descendants)?
The spouse gets half, and the children share the other half in equal portions.
89
What is the distribution of the estate if there are only children (or their descendants) and no spouse?
The children get everything in equal portions. Grandchildren can claim their deceased parent's share in equal portions.
90
How is the estate distributed if there is a spouse and parents but no children?
The spouse gets half, and the parents get half in equal portions.
91
What happens to the estate if there are only parents and no spouse or children?
The parents get everything in equal portions.
92
How is the estate distributed if there are brothers and sisters (or children of deceased siblings) but no spouse, children, or parents?
Brothers and sisters get equal portions. Their children can claim their share in equal portions if they are deceased.
93
How is the estate divided if grandparents are the nearest relatives, with no spouse, children, or parents?
Grandparents take the estate in equal portions.
94
How is the estate distributed if there are only uncles and aunts, with no spouse, children, parents, or siblings?
Uncles and aunts take the estate in equal portions.
95
What happens if there are no surviving relatives or heirs?
Government takes everything.
96
What is the legal framework governing succession for Singapore Citizen Muslims?
The Administration of Muslim Law Act (AMLA) outlines how Muslim Singapore citizens can create a will and distribute their assets according to Muslim law.
97
Can Muslim women create a will under the AMLA?
Yes, the AMLA is applicable to Muslim women as well, according to Sections 118, 119, and 120.
98
What documents are required for a Muslim's estate after death?
A Grant of Probate or a Letter of Administration is required to manage the deceased's estate.
99
What role does the Syariah Court play in Muslim succession?
The Syariah Court issues an Inheritance Certificate, which is necessary for the distribution of the estate.
100
How much of the estate can a deceased Muslim will away to a non-faraid beneficiary?
A deceased Muslim can will away a maximum of one third of their estate to non-faraid beneficiaries (non-spouse and relatives).
101
What does "faraid" refer to in the context of Muslim inheritance?
Faraid refers to the Islamic law of inheritance that dictates how the deceased's estate is distributed among heirs.
102
How does faraid apply to jointly-owned property under the Land Titles Act?
For jointly-owned property registered under the Land Titles Act, the right of survivorship applies, meaning the surviving owner automatically takes over the property.
103
What happens to CPF money defined in Muslim succession laws?
CPF money can be nominated to a beneficiary, and in the absence of a nomination, it follows Muslim law distribution.
104
What happens to the estate if there is a spouse and no children (or parents) upon the death of a Muslim individual?
Spouse gets everything
105
What happens to the estate if there are children and no spouse upon the death of a Muslim individual?
If all children are the same sex, they get equal shares otherwise if mixed sex, male gets double the female
106
What happens to the estate if there are spouse and parents but no children upon the death of a Muslim individual?
Spouse gets maximum of 1/4 , and parents will get max 3/4. If both parents present then Father gets 1/2 & Mother gets 1/4
107
What happens to the estate if there are parents but no children or spouse upon the death of a Muslim individual?
Parents get everything but father gets double of mother.
108
What happens to the estate if there are brothers and sisters but no children, spouse and parents upon the death of a Muslim individual?
Brothers get double of sisters.
109
What happens to the estate if there are grandfathers but no children, spouse, siblings and parents upon the death of a Muslim individual?
Maternal grandfather not eligible, paternal grandfather gets 5/6, and grandmothers share remaining 1/6
110
What happens to the estate if there are uncles and aunts but no grandparents, children, spouse, siblings and parents upon the death of a Muslim individual?
Paternal brother ie. uncle(s) get everything
111
What is a key feature of a legal interest in land?
A legal interest is enforceable against the whole world.
112
How is an equitable interest in land enforced?
An equitable interest is enforceable against the whole world except for a bona fide purchaser for value without notice.
113
What defines a legal interest in land?
A legal interest refers to formal paper ownership of property that is registered.
114
What rights does a legal interest provide the owner?
It gives the owner the right to deal with the property at law, including selling or leasing.
115
What characterizes an equitable interest in land?
An equitable interest consists of the beneficial rights of an individual concerning the property, but it is typically unregistered.
116
What rights do equitable interests confer?
Equitable interests provide the right to live in the property and collect rent from it.
117
What is a trust in legal terms?
A trust is a legal arrangement where property is managed by one party for the benefit of another.
118
Who is the Settlor (Trustor)?
The Settlor is the original owner of the property who creates the trust arrangement.
119
What is the role of Trustees in a trust?
Trustees have the authority to manage and administer the property placed in the trust.
120
Who are the Beneficiaries in a trust arrangement?
Beneficiaries are individuals or entities who receive the economic benefits from the property held in trust.
121
How does a trust arrangement affect property ownership?
In a trust arrangement, legal ownership of the property belongs to the trustee, while the beneficiary holds the right to benefit from the property (such as using it or receiving income from it).
122
What is the first step in creating a trust?
The process starts with the Settlor working with a lawyer to draft a Trust Deed (Deed of Settlement) to grant legal power to the Trustee.
123
What is the second step after creating the Trust Deed?
The transfer of title to the property must be executed and registered with the Singapore Land Authority (SLA).
124
How many Trustees can be appointed according to the Trustee Act?
A maximum of four Trustees can be appointed to manage the trust.
125
What is the first element of a valid trust?
Certainty of Intention – The intention of the settlor to create the trust must be clear and certain.
126
What does "certainty of subject property" mean?
Certainty of Subject Property – The identity of the trust property must be clear and specific.
127
What is meant by "certainty of object" in a trust?
Certainty of Object – There must be certainty regarding which persons (or objects) are intended to benefit from the trust.
128
In a trust, who holds the legal title of the trust property?
The Trustee holds the legal title of the trust property.
129
What interest does the beneficiary have in the trust property?
The Beneficiary has an equitable interest in the trust property.
130
How do the interests in a trust work?
The Trustee owns the legal interest, while the Beneficiary receives the benefit from the equitable interest.
131
What does the Residential Property Act state regarding Singapore Citizens and foreigners in trusts?
Singapore Citizens are not allowed to hold restricted property in trust for any foreigner.
132
What is a restricted property in the context of the Residential Property Act?
Restricted property typically refers to certain types of residential properties that foreign individuals are not allowed to purchase or hold.
133
What are the 4 general purposes of trust?
1. Succession and Estate Planning
2. Wealth Protection
3. Family Wealth Planning
4. Confidentiality
134
What types of duties does a trustee have?
A trustee has fiduciary and statutory duties as outlined in the Trustee Act and common law.
135
What is the statutory duty of a trustee?
A trustee must exercise reasonable care and skill in the discharge of their powers.
136
What does it mean for a trustee to exercise discretion properly?
It means the trustee must make decisions based on the best interests of the beneficiaries and the terms of the trust.
137
What is the duty to abide by the directions of the trust deed?
Trustees must follow the instructions and terms set forth in the trust deed, which outlines how the trust should be managed.
138
What are the 3 most important duties of a trustee?
1. Duty to act impartially between the beneficiaries.
2. Duty to exercise reasonable care
3. Duty not to profit from the trust
139
What happens if a trustee fails to perform their duties?
Failure to perform a duty constitutes a breach of trust, which makes the trustee liable to compensate beneficiary or even a jail term.
140
What rights does a beneficiary have regarding a trustee’s obligations?
A beneficiary is entitled to enforce the trustee’s obligations if there is a breach of duty.
141
What are some reasons a trustee can be removed according to the Trustee Act?
A trustee can be removed if the current trustee is: i) Dead, ii) Remains out of Singapore for more than 12 months, iii) Desires to be discharged from the trusts, iv) Refuses or is unfit to act on the trusts, or v) Incapable of acting as trustee.
142
Who can apply for the removal of a trustee?
The appointer of the trustee or a beneficiary can apply for removal using the removal clause of the trust deed (express power).
143
What is an Express Trust?
An express trust is created through a clear declaration by the settlor, outlining the terms and conditions of the trust.
144
What is the significance of a settlor in an express trust?
A settlor is the individual who creates the trust while they are still alive; this type of trust is also known as an inter vivos trust.
145
What is a Testamentary Trust?
A testamentary trust is created by a will and comes into effect upon the testator's death, appointing a trustee and beneficiary.
146
What defines a Discretionary Trust?
A discretionary trust is a form of express trust where the trustee has discretion over how to distribute the trust assets among beneficiaries.
147
What are Resulting Trusts and Constructive Trusts?
Both resulting trusts and constructive trusts are known as implied trusts, which arise by operation of law rather than by explicit declaration.
148
What are the 5 kinds of trust that exist?
1. Express Trust
2. Testamentary Trust
3. Discretionary Trust
4. Resulting Trust
5. Constructive Trust
149
What is a resulting trust?
A resulting trust is an implied trust created by operation of law, typically when property is transferred to someone who pays nothing for it.
150
Who benefits from a resulting trust?
The person who actually paid for the property is implied to benefit from the resulting trust, as the property is viewed as held for their benefit.
151
What is a constructive trust?
A constructive trust is a trust imposed by the court when someone wrongfully acquires or holds the property of another person.
152
What is the purpose of a constructive trust?
The purpose of a constructive trust is to benefit a party that has been wrongfully deprived of their rights to property.
153
What is a security?
Security (interests) is any asset obtained by a creditor from the debtor to ensure repayment of a debt.
154
What is a mortgage in relation to real estate security?
A mortgage involves the mortgagor transferring the title deed of the property to the mortgagee (usually a bank) with the promise that the lender will return the title when the debt is fully paid.
155
Who are the parties involved in a mortgage?
The mortgagee is the lender (often a bank), and the mortgagor is the borrower (the owner of the property).
156
What is a charge in real estate security?
A charge is an agreement between the creditor and debtor that does not involve the possession or title passing to the charge; it typically relates to loans such as those with the CPF (Central Provident Fund).
157
How does a charge differ from a mortgage?
In a charge, the creditor does not take possession or title of the property, while in a mortgage, the title is transferred to the lender.
158
In the context of selling property, how is the selling price affected by outstanding loans?
The selling price is reduced by the outstanding loan amount and any CPF proceeds used, indicating the net cash proceeds from the sale.
159
What is a pledge in terms of security?
A pledge involves transferring possession of goods (also known as chattels) to creditors until debts are paid. This type of mortgage can be either legal or equitable.
160
How is a pledge different from a mortgage?
A pledge involves transferring possession of goods, while a mortgage involves real estate property. In both cases, the property or goods serve as collateral for the debt.
161
What are the two main categories of legal mortgages?
Common Law and Statutes.
162
What is the first step in a Common Law mortgage process?
The title deed is transferred to the bank (mortgagee).
163
What happens after the mortgage is fully paid in a Common Law mortgage?
Ownership of the property is transferred back to the mortgagor (the borrower).
164
What is "Equity of Redemption" in Common Law mortgages?
Equity of redemption is the right of the mortgagor to reclaim their property upon paying off the mortgage debt, even after default.
165
What is an example of a statute governing mortgages in Singapore?
Land Title Act.
166
What key document is created under statutory mortgages?
A Mortgage Agreement is established between the borrower and lender.
167
What is a significant difference in ownership transfer under statutory mortgages?
There is no transfer of ownership when a mortgage is created; the mortgagor retains ownership while the mortgagee holds a security interest.
168
What property type is typically involved in statutory mortgages?
Statutory mortgages usually involve completed property that is registered under the appropriate laws.
169
What is an equitable mortgage?
An equitable mortgage is a form of security interest in a property that does not require a formal transfer of title but provides the lender rights over the property.
170
What does "lodge caveat" mean in the context of equitable mortgages?
Lodge caveat refers to the action of filing a legal notice against the property to protect the lender's interest, preventing the property from being sold or mortgaged without their knowledge.
171
What is meant by "perfection" in the context of an equitable mortgage?
Perfection involves taking additional steps required to make a security interest effective against third parties, ensuring that the lender's rights are recognized legally.
172
What are examples of perfection actions?
Examples of perfection include lodging caveats and registering interests upon receiving a valid title.
173
How does an equitable mortgage relate to properties under construction?
An equitable mortgage can be applicable to properties under construction, securing the lender’s interest even before the title is formally transferred.
174
Can an equitable mortgage be created without a title deed?
Yes, equitable mortgages can exist without a title deed, relying instead on other forms of evidence of indebtedness or agreements.
175
What role does a loan play in an equitable mortgage?
A loan is typically the amount borrowed by the debtor, secured by the equitable mortgage on the property as collateral.
176
What is a deed of assignment in the context of equitable mortgages?
A deed of assignment is a legal document used to transfer certain rights or interests in the property that is being used as security for the loan. This helps the lender strengthen their claim to the property if the borrower fails to repay the loan.
177
What is the first right of a mortgagor?
The mortgagor remains the registered proprietor of the property.
178
What is the mortgagor's right to occupy the property?
The mortgagor has the right to possess and occupy the property unless there is a default in payment.
179
Can a mortgagor lease the property?
Yes, the mortgagor has the right to lease the property with the consent of the mortgagee.
180
What right does the mortgagor have concerning loan repayment?
The mortgagor has the right to repay the loan and discharge from the mortgage.
181
What is the mortgagee's right to collect owed debt?
The mortgagee has the right to sue the mortgagor for the debt.
182
What does the right of entry into possession entail for the mortgagee?
The mortgagee has the right to take possession of the property if the mortgagor defaults on the loan.
183
Can a mortgagee sell the property without a court order?
Yes, the mortgagee has the right to sell the property without needing a court order in the event of default.
184
What is the mortgagee's right to appoint a receiver?
The mortgagee can appoint a receiver to manage the property and collect income from it to cover debts.
185
What is the right of foreclosure?
The right of foreclosure allows the mortgagee to repossess the property, but they must give a three-month notice prior to doing so.
186
Can a property be mortgaged to more than one party?
Yes, a property can be mortgaged to multiple parties.
187
How is the priority of mortgagees determined?
A) Legal mortgage has priority over equitable mortgage. B) The mortgagee who registers first (based on date of registration) has priority over subsequent mortgagees.
188
What is the definition of an easement?
An easement is a right annexed to land that allows the owner to utilize another person's land in a particular manner.
189
What does an easement provide the holder?
It provides the right to use someone else’s land (property) for specific purposes.
190
What is the first characteristic of an easement?
There must be a dominant tenement (the property benefiting from the easement) and a servient tenement (the property burdened by the easement).
191
What does it mean that dominant and servient owners must be different persons?
The owners of the dominant tenement and servient tenement must be separate individuals or entities; they cannot be the same person.
192
What is a positive easement?
Allows the benefited landowner to use the burdened land in specific purposes -> ie. right of way
193
What is a negative easement?
Gives the benefited landowner a right that prevents the burdened landowner from using their own land in a particular way -> ie. right of light
194
What is the first method for creating an easement under the Land Title Act?
Registration of legal interests (S97 of the Land Title Act) through:
Instrument of grant
Instrument of transfer
Instrument of lease
195
What is the second method for creating an easement?
A court can create an easement (S97A of the Land Title Act).
196
What is an implied easement?
An implied easement is a right that is not expressly stated but is assumed based on certain circumstances or legal principles.
197
What is an example of an implied easement for utilities?
Implied easements for the passage of water, electricity, gas, or drainage necessary for the development of land.
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What is one way an easement can be extinguished through unification of ownership?
Unification of ownership (amalgamation) occurs when the dominant and servient tenements have the same owner. Indicated in the instrument and registered with SLA, the registrar will cancel the easement.
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What does an express agreement from the dominant tenement entail?
Under S101 of the Land Title Act, if a sale involving the dominant tenement that contains an easement occurs, the easement shall not pass to the next owner, releasing the easement.
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What is meant by express release under the Land Title Act?
An express release refers to the voluntary termination of an easement by executing an instrument to be submitted to the SLA (S105).
201
What power does the court have regarding easements?
The court has the power to extinguish or vary an easement upon application by the servient owner (S105A).
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How does abandonment relate to the extinguishment of easements?
An easement can be extinguished through abandonment if it is not used for a period exceeding 12 years (S106).
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What happens to an easement upon expiration?
An easement created for a set period of time ends upon expiry, especially when a special agreement states it will end after a certain period (S106).
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Who is responsible for canceling an easement based on expiration or evidence?
The registrar is responsible for cancelling the easement based on evidence provided.
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What is a covenant?
A covenant is a promise made by one party to another, typically involving the use or restriction of land.
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How is a covenant created?
A covenant is created by a legal contract made under seal.
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Who is the covenantor and who is the covenantee?
The covenantor (servient tenement) is the person making the promise, while the covenantee (dominant tenement) is the person enjoying the benefits of the promise.
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What constitutes a restrictive covenant?
A restrictive covenant is a promise made by previous or current owners that attaches to the land, binding anyone who owns it—even if the new owner did not make the original contract.
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How do covenants relate to equitable interests?
Covenants create equitable interests that attach to land, meaning they affect how the land can be used or developed.
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What are the two types of covenants?
Positive covenants and restrictive (negative) covenants.
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What is an example of a positive covenant?
An example is an owner maintaining a road shared with a neighbor or repairing a shared roof.
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What is an example of a restrictive covenant?
Not using a house for any purpose other than a private dwelling.
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What are characteristics of restrictive covenants?
- They are often not considered an interest in land.
- They do not attach to the land, meaning they may not bind future owners.
- They typically cannot be registered.
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What is the first characteristic of a promise to qualify as a restrictive covenant?
The promises must be restrictive in nature, imposing limitations on how the land can be used.
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Why is it important to identify the covenantor and covenantee?
It’s crucial to clearly identify the covenantor (the party making the promise) and the covenantee (the party benefiting from the restriction) in a restrictive covenant.
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Who benefits from a restrictive covenant?
The covenantee benefits from the promise made in the restrictive covenant.
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How is a restrictive covenant classified legally?
A restrictive covenant is considered an equitable interest.
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What is the initial lifespan of a restrictive covenant under the Land Title Act?
The initial lifespan is 20 years, after which it is not enforceable unless extended.
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How can a restrictive covenant be extended?
It can be extended for another 10 years.
220
What is a note regarding the enforcement of restrictive covenants under Common Law?
Under Common Law, restrictive covenants run with the land, meaning they are binding on future owners of the property.
221
What is one way a restrictive covenant can be extinguished?
Expiry of the covenant after a specified time period.
222
What happens when the ownership of the dominant and servient tenement becomes unified?
The covenant becomes unenforceable when both properties are owned by the same individual or entity.
223
How can a release of a restrictive covenant be executed?
The owner of the dominant tenement can execute an instrument to release the servient tenement from the burden of the restriction.
224
Is it possible for the court to remove State Covenants?
No, the court cannot remove State Covenants.
225
What is a caveat in legal terms?
A caveat is a legal document that acts as a caution or warning to anyone conducting a title search, notifying them that someone is claiming an interest in the property.
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What is the main purpose of a caveat?
It serves as a statutory injunction to forbid the Registrar from registering any transfer or disposition of interests in the property unless the caveator consents.
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Who can lodge a caveat?
A caveat can be lodged by any person who has an interest in the property in law or equity, known as the caveator.
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What type of interests can justify lodging a caveat?
Interests may include un-registrable interests or those pending registration.
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What is the property owner whose property has a caveat lodged against them called?
The property owner is known as the caveatee.
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How can a caveat be removed?
A caveat can be removed through several methods: withdrawal, expiry, cancellation, or court order.
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What does it mean to withdraw a caveat?
A caveat may be withdrawn by the caveator, for example, upon the completion of a sale or full redemption of a loan.
232
What is the expiry period for a caveat?
A caveat automatically expires after 5 years from the date of lodgement if it is not withdrawn.
233
Can a caveat be renewed?
Yes, a caveat can be renewed for an additional period of 5 years.
234
What is another method for removing a caveat?
A caveat can be removed through cancellation, which typically requires a specific action or agreement.
235
How can a caveat be removed via a court order?
A caveat can be removed on a successful application by a person claiming an interest in the property.
236
What are the two types of caveats?
A. Private Caveat B. Registrar Caveat
