Real estate law part 1 Module 1,2,3,4 Flashcards

Question

Person of full age needs an advisor when:

Answer 1

Only to assist in the administration He is empowered with: No powers towards administration He may have to intervene in respect of the acts for which he is supposed to assist the person of full age

Answer 2

It is a consequence emanating from mariage

Answer 3

Sale can be canceled Claim damages Lease Therefore both spouses must sign the brokerage contract, the promise to purchase and act of sale when a declaration of family residence has been published Court can grant authorization if owners spouse refuses without reasonable motive

Answer 4

1st regime - community as to property -prior to July 1970 Common property is acquired by a spouse during the mariage - need consent of spouse to sell- 2 signatures Reserved property - immovable acquired by the wife with her own salary during the marriage - need consent of spouse to sell- 2 signatures Private property of the husband - bought before the mariage or inherited before or during the mariage - no consent needed- 1 signature Private property of the wife - bought before the mariage or inherited prior or during - no consent -1 signature 2nd regime -separation as to property- conventional and established by mariage - prenup -each spouse is the sole owner of properties - no consent -1signature

Answer 5

Mandate or power of attorney: - Useful when owner can’t be there - Mandator will authorize another person, the mandatory to sign relèvent documents while he is away - Make sure he has power to sign and it has not been revoked - Private act and it can be done by notarial deed or one that has been attested by a jurist or yourself Mandate given in anticipation of mandators incapacity This allows a person full of age to choose who will take care of him or will administer his property if he becomes incapable to do so later on; By notarial act ´en minuté or in présence by a witness You need a copy of the mandate and judgement Only the mandatory will sign the documents

Answer 6

No will Nothing to that effect in the mariage contract Succession goes to the legal heirs according to the civil code Quebec The notary will identify the legal heirs in a declaration of transition made by the notarial act ´en minute ´ that is published at the relevant registers office All legal heirs have to sign a brokerage act promise to purchase and act of sale Declaration of transmission (it’s content): Name, occupation,domicile of the deceased Matrimonial régime of the deceased Stipulation that the deceased died without a will Name of the legal heirs List of the immovables Liquidator Legal heirs may designate a liquidator (should be done in writing by notarial act or by doc attested by jurists ``` Liquidators tasks; taking inventory Collect debts owned to deceased Paying depots of the deceased Liquidators acts in respect of the property of the succession as an administrator -simple administration ``` So once a liquidator is picked, he becomes the seisin of the heirs ; the person that will administer the property in between The liquidators right to sell an immovable which is part of the succession: he may sell only with the unanimous consent of the heirs: without it they need the courts authorization ``` End of the liquidation: Discharged of his administration duties and delivers property to the heirs ( this is called delivery of legacies) Ones delivered (debts payed) and published in registers office , the heirs are now the owners- must sign the brokerage act , promise to purchase and deed of sale ``` Partition; The heirs have mie become owners and may decided to divide among themselves what they have inherited

Answer 7

Forms of wills: - holograph written entirely by the testator and signed by him - this will needs to be probated by a court of law Will made in the presence of witnesses: - Written by the testator or by third person or by mechanical process - signed by testator (or third party) in front of the latter) in the presence of two witnesses - such wills need to be probated by a court of law Notarial wills: Are signed before a notary “en minute” in the presence of a witness This form of will does not need to be probated Legatees; someone who receives a legacy Universal legatee ;ex spouse who gets everything Legatee by general title: group or collection of items Legatee by particular :particular item Liquidators: chosen and appointed by the testator in his will- you have to read the will in order to see if he is vested with simple or full administration Liquidator may sell an immovable left to as legacies by particular title only if the other property of succession is insufficient to pay of debts Declaration of transition; Name, occupation and domicile of deceased Matrimonial regime of deceased Stipulation to the effect that the deceased died with a wills Names of the legatees Name of the liquidators if any List of the immovables which are included in the succession End of liquidation: Liquidator is discharged of his administration and gives the property to the legatees. Called delivery of legacies Once the delivery of legacies is published at the registry office it means that the legacies are the owners of the immovables Legatees must sign the brokerage contract and act of sale Partition; after succession legatees can divide it amounts themselves

Answer 8

``` Have a name Have a domicile Have full enjoyment of civil rights Have patrimony We are are referring to a company which is incorporated, meaning that the liability of the shareholders is limited to there investment ``` In order to properly identify the name of the company you will need to : Copy of the certificate of constitution or any subsequent certificate issued to modify the name of the company A certificste from government that the company is still active and has been kept up to date A resolution from the company identifying the representatives duly authorize to sign on its behalf

Answer 9

Land and any construction of permanent nature located there on and forming an integral part thereof; house, in ground pool,vacant lot,trees etc Movables can become immovables; windows doors, staircase, elevator they ensure the functionality of the immovable Immovables by attachment or joinder: -Movables that are permanently physically attached or joined to an exciting immovable -Said Movables are not incorporated into the immovables -They are attached or joined for unknown time - they do not lose there individuality Ex: electrical fixtures tv atteins screwed on roof,cabanon attached to concrete base

Answer 10

Things that can be moved Furniture Dog All is usually excluded buyer might want fridge etc, u have to add it in inclusion clause in relevant promise to purchase

Answer 11

Personal ; only enforceable between individual not property - individuals demand to do something or restrain from doing something Brokerage contract , leases Real rights - exercise his rights against the property of another - when buying the buyer becomes the owner as well as all the real rights its charged with Ex right of ownership,servitudes, hypothec Need publication at registry office - registered Consequence: usual verification - certificate of location( up to date one) -Deed of acquisition by vendor (when he purchased) -tittle of ownership ( notary will check) -Landry register of registry office

Answer 12

1) Usus; the right to live in in, rent it, administer it 2) fructus; right to take and enjoy fruits snd revenues produced by the property 3)ABUSUS - right to sell, destroy charge with hypothec (refinance)

Answer 13

Usus; the right to live in in, rent it, administer it

Answer 14

fructus; right to take and enjoy fruits snd revenues produced by the property

Answer 15

ABUSUS - right to sell, destroy charge with hypothec (refinance

Answer 16

1) Ownership of the soil carries with it what is below it and above it (obvies not to infinite), can plant , use space above ground etc. He must respect the law ( state of mines, sheets of water, underground streams and areal space) 2)accession a right to what the property produced naturally(involuntary) or artificially (voluntary) from the time of union Construction on immovable(land) are presumed to have been made by him and paid by him and belong to him Therefore the designation of the lot is sufficient in the deed of sale in order to transfer the right of ownership and the land and all the construction erected without making a full description

Answer 17

A)abuse of rights and nuisances As neighbours we must respect the usual inconvenience as long as they do not exceed what is normally tolerable Abuses of rights ; a Owner at fault is he intentionally harms neighbour - malicious intent Nuisances;owner at fault if he without malicious intent harms his neighbour Lack of maintenance Excavation construction or plantation Use of work that can dry up or pollute water ``` B) Limits and boundary of land Limits; -Tittle of ownership Cadastral plan Boundary lines of the land Any other useful document -Boundary’s; Law allows you to compel neighbour to have boundary between the lands determined in order to ; Fix the boundary markers Set displaces boundary markers in place Verify old boundary markers Rectify the dividing line Can be done amicably or with court Consequences: injunctions( court order that compels a party from doing a specific act) or and damages ``` C) waters Drainage- lower land cant do work to prevent the natural flow and higher land owner can worse the condition Law-roof snow,water ice etc, needs to land on your land D) trees: If branches or roots come onto you land and seriously obstruct its use u may ask to cut it if no bring it to court Tree dangerous - ask , if no the you can ask court -Agriculture land rules: if land is used for agriculture purposes, if it suffers from serious damage to its operation, may compel neighbour to pull down his trees along and not over 5meters from diving line Exceptions -neighbour is exploiting an orchard Neighbour is exploiting a sugar bush (maple syrup) Neighbour wishes to keep trees in order to embellish the property -fruit rule ; if the fruits from a neighbour’s fall onto you land it still belongs to him E) access to and protection of the land of another -access to the land of another : shall allow if necessary to: Do/maintain construction or plantation Consequently the owner is entitled to: Compensation for any damages Restoration of his land -Minor encroachment ( going over the dividing line) Build beyond your land Owner acted in good faith Neighbour resources is to force to owner to acquire said parcel by paying its value or owner pays him co pensait on for the temporary lode by paying its value , it’s up to neighbour to decide - major encroachment If it’s it’s considerable, serious damage and made in bad faith the owner can compel to acquire the entire immovable by paying its value or remove the construction and restore the place to it ``` F)views Rule since Jan 1 1994 Rule - no one can have upon their neighbouring land direct views less than 1.5 meters from the dividing line Exceptions: Views on the public thoroughfare (street) Views on a public park Panelled doors Doors with translucent glass Fixed translucide lights ``` Prior Distance for direct view is 2.05 meters Indirect views 0.68 meters G) right of way enclosed land :surveyor determines this Rule; the owner of an enclosed land may compel his neighbour to give him right of way to use exploit land He can then build a road, maintain it, pay compensation H)common fences and work Any owner can fence his land with a wall fence or ditch , if it’s on the dividing line he can ask neighbour to spilt cost then it is common. U can see whether a fence is common in the certificate of location but it’s not always obvious Common walls: A wall supporting both sides is common Each owner may build against it Can split cost for building common wall on diving line An owner can renounce his right to use it and thereby be relieved of his obligations to pay expenses

Answer 18

Going over the dividing line (neighbour)

Answer 19

dismemberment (dividing property, cutting it into parcels) of the right of ownership The owner allows TEMPORARILY a third party to enjoy one or more advantages normally found in the advantages of ownership; Usufruct Use Servitude Emphyteusis

Answer 20

A)Nature of usufruct; It’s the right of use and enjoyment for a certain time of property owned by another as one,s own, subset to the obligation of preserving its substances Usufructuary - usus and fructus people using the home until they pass or the contract is up and then goes to example the children but without being taxed parents transfer the bare ownership to their children while retaining the usufruct for their lifetime. This provides them with the right to the income and the enjoyment of the property until their death. As the transfer of the bare ownership is less than the transfer of the full ownership, the gift tax base is reduced, thereby resulting in a lower tax at the time the plan is initiated. Bare owner: abusus; right to sell, destroy give once the term is up or the abusus dies ... B) establishment By contract, by will bylaw or by judgement C) duration Temporary With a term = no longer than 100 years Without a term= natural person is for life, legal person is for 30 years D) the right of the usufructuary - has the use and enjoyment of the property - is entitled to the fruit and revenues - keeps his right in the event of a sale of the abusus by bare owner - can sell his usufruct without the bare owners consent E)obligation of the usufructuary - takes inventory of the property - takes out insurances for property - pays the expenses regarding the maintenance of the property - pays the ordinary charges like municipal taxes F) right of the bare owner Can sell his right of the property (abusus) without the usufructuary’s consent Will get back the usus and fructus of the property at the end of the usufruct G)the obligation of the bare owner Is responsible for major repairs H) extinction By the expiry of the term Upon the death of the usufructuary or dissolution of the legal person notwithstanding the term By the reunion of the qualities of the usufructuary and bare owner in the same person By forfeiture or renunciation of the right or its conversion into annuity By none use for 10y By total loss unless insured by usufructuary

Answer 21

A) A right of use is the right to enjoy the property of another for a time and take the fruits and revenues thereof to the extent of the needs if the user and the person living with him or his dependants E.I the right of use is a usufruct t but only for personal needs of the user and his family A user who takes all the fruits and revenues of the property or who uses the property in its entirety is liable, for the whole, for the costs he incurred to produce them, for the maintenance repairs and for the payment of the charges, in the same manner as a usufructuary. Where the user takes only part of the fruits and revenues or uses only part of the property, he contributes in proportion to his use. B) establishment; By contract will or judgement C) Nature ; the right of use may not be assigned nor seized unless provided for otherwise by agreement of court of law In all other respects, the rules governing usufruct are applicable to the right of use

Answer 22

À )servitude is a charged imposed on an immovable (the servient land) in favour of another immovable ( dominant land) belonging to different owners It is a real right (In Land registry ) It extends to all that is necessary for its exercise B)Natures The owner of the servient land is required to tolerate certain acts of use by the dominant land Ex right of way Servitude view Or the owner of the servient land is required to refrain certain rights inherited to ownership Ex servitude of non construction C) establishment - By contract , by will, by destination of proprietor or by the effect of the law; - must be published at the land register of the relevant registry office to be opposable to third parties D)extinction - by the réunion of the qualities of owner of the servient land and owner dominant land in the same person - by the express renunciation (abandonment) of the dominant lands owner - by the expiry of the term for which it was established - none use for 10 years

Answer 23

The right which, for a certain time grants a person the full benefit and enjoyment of an immovable owned by another , provided he does not endanger its existence and undertakes to make construction, work or plantations there on that’s durably increases it’s value B) min 10 years max 100 C) co- emphyteusis Emphyteusis affecting both land and an existing building may be the subject of a declaration of co- emphyteusis so it’s governed by same rules as con ownership - u are not buying three unit itself just a right to liv there for the remainder of theco- ownership D) bycontact , will E)the right of the emphyteusis lessee Has the right in the immovable that are attached to the quality of owner but for the following restrictions F) obligations of the emphyteutic lessee - must make the construction work or plantation as specified in the constituting act - liable for partial loss of the immovable - Is bound to make repairs - even major ones - Must insure the immovables - Is liable for all real property charges affecting the immovable - Is liable for all real property charges affecting the I movable like taxes The right of the owner - the constituting act may grant rights or guarantees to the owner in order to protect the value of the immovable ,ensure it conservation, yield or use - owner may ask that the emphyteutic lessee be fortuites of his rights is he commits waste or fails to prevent t the deterioration of the Immovable orné d’âge the rights of the owner - owner may collect the price set in them constituting act - as a general rule upon termination that owner resumes the immovable free of all the rights and charges granted by the emphyteutic lessee H) the obligation of the owner Same obligation as the vendor: Delivery ,warranty of ownership, warranty of quality I) termination of quality - expiration of term - Total loss or expropriation of immovable - by resiliation of the constituting act (failure of payment ) - by réunion of the quality of owner and emphyteutic lessee in the same person - by non-use for 10 years - by abandonment (no money/market crash )

Answer 24

Same property ,owned jointly at the sam Time by several people. It is not accompanied with physical division of property. When; 2or more How; contract,will,law,judgment Administered between co owners or they can hire manager of there choice If no contract betweeen owners they use the Quebec civil code to govern the co-owners Rights and obligations; shares are presumed equal It’s up to co owners to determine if it’s unequal Pré emptive right - first offer his ownership shares to the others before selling the indivision agreement that stipulate pre emptive right must be published The right to hypothecate - remortgage for Reno’s Right to use and enjoy - rent bassement ans share the rent money Repairs and improvemts- vote- majority vote wins Fruits - belongs to all Right of redemption (repurchase) Don’t need consent to sell shares but any individual co owner has 60 days of learning that a person has bought the share exclude him by buying shares at sales price plus expenses ( right of 1st refusal =pre emotive right) Each co owner can hypothecate his share (mortgage) The right to use and enjoy as long as it does not effect the destination of the immovable or the right of the other co owners Rules; Any improvement benefits all All disbursements made by an undivided co owner in order to preserve the immovable shall be reimbursed to the latter For all other disbursement (made by and for the undivided co owner’s enjoyment) the undivided co owner at the partition will be entitled to compensation equal to the value increased in the immovable Each undivided co owner is liable for any value loss of the immovable he caused All fruits and revenues belong to all undivided co-owners according to there shares Administered jointly Vote; majority in numbers and shares of the undivided co owners Unanimity No one is bound to remain in indivision (joint ownership). Partition may be demanded at any time unless it has been postponed by an agreement, a testamentary provision or a judgment, or by operation of law, or unless it has become impossible because the property has been appropriated to a lasting purpose. Postponement of partition No min term Max 30 but can be renewable Subsidiary rule 3/4 (90%) can put an end to undivided co ownership If some part of property is lost you can vote to end co ownership Partition or aliénation put an end to co ownership Conventional indivision = by agrément Through contract providing rules which will govern the co owners relationships . Can be notorial or just private writing ,no need to publish unless u want too You can add more than just the ones in the Quebec civil code

Answer 25

Person has the exclusive right of ownership in a physical divided private portion of an immovable and a share of common portions A) establishments of owner ownership Upon publication of the declaration of co-ownerships The declaration must be notarized en minute The declaration of co ownership must be signed by all co owners or the sole owner and by all hypothec are creditors The company owner as a body constitute a legal person The legal person is called a syndicate Fractions of co- ownership Private portions Those portions of the building and the land that are the property of a specific co owner and that are his exclusive use Rule : when dealing with divided co ownership, be aware that there is no right of redemption and no pre emptive right in favour of the owners private portion Common portion :those portions are the land that are owned by all the co owners and serve for their common use Common portion for restricted use : those common portions that serve for the use of only one or several of the owners ext- storage space front door couloir ``` Declaration of co ownership (on final) Is constituting of three elements -Acts constituting the co ownership -By-laws -Descriptions of the fractions ``` Acts of constituting the co owners ( constituting act) : - Defines the destination (purpose) of the immovable, of the exclusive parts and of the common parts - specifies the relative value of each exclusive part, the share of expenses es Abe number of votes attached to it - specifies the power and duties of the board of directors of the syndicate and the general meeting of the co owners How can the constitutional act be modified = with a vote and notary ; 51% plus 3/4 of all relative value By laws: Establish the rules on the enjoyment, use and upkeep of both private and common portions Establish the rules on the operation and administration of the co ownership Establishes how the contribution to the common expenses are assessed and collected How can the by laws be modified : quorum (min amount of pps that must be present at meeting ) Description of the fractions: Contains the cadastral description of both the private and common portions Contains description of the real rights affecting or benefitting the immovable, other than hypothec The required form of the declaration of co ownership is; authentic act en minute - notary The declaration of co ownership must be signed by; all owners and lenders The rights and obligations of co ownership Usus fructus and abusus

Real estate law part 1 Module 1,2,3,4 Flashcards

(49 cards)