Real Property; Personal Property - mod 10

Question 1

Property

Answer 1

• property is best described as a relationship between people with respect to things
• property is either real property or personal property
• not absolute

Question 2

Real property - simple definition

Answer 2

• Real property is land and anything permanently attached to the land (including buildings, and anything attached to the buildings)
• ex. Toilet
• Real property is fixed and not moveable

Question 3

Personal property

Answer 3

• personal property is property that is not real property
• personal property is either tangible (it can be touched and seen, such as cars or furniture) or it is intangible (it cannot be touched or seen, such as accounts receivable and intellectual property)

Question 4

Fixtures

Answer 4

• goods that are attached to real property
• begin as personal property but when attached to real property they become real property
• ask two questions: was the attachment intended to be permanent or temporary? And how much damage would be caused if it was removed?

Question 5

Three types of possessors interests in land (they confer the right to posses the land)

Answer 5

• fee simple
• life estate
• leasehold estate

Question 5

Two rights in real property

Answer 5

1. Possessory interests in land

2. Non-possessory interests in land

Question 6

a) fee simple (possessory interest)

Answer 6

• the greatest private interest that a person can have in real property (not paramount)
• may be defeated by easements, rights of way, adverse possession or government expropriation
• commonly referred to as “ownership” of real property
• if a person owns a house, they enjoy fee simple in that property

Question 7

b) life estate (possessory interest)

Answer 7

• a rarely used interest in land which allows a person to live on the land for their lifetime only (after the person dies, the land is transferred to another person)
• used primarily in estate planning where a testator (person making a will) wants to ensure that a person will have the benefit of living on the land for their entire lifetime

Question 8

c) leasehold estate (possessory interest)

Answer 8

• interests in real property that are limited to a specific period of time, after which possession of the land reverts back to the owner
• may be residential (e.g. apartments) or commercial (e.g. office space)
• creates by a lease agreement, a contract pursuant to which possession of real property is given in exchange for the payment of money

Question 9

Non-possessory interests in land

Answer 9

• easements, rights of way, licenses, restrictive covenants, mortgages

Question 10

Easement (non-possessory interest)

Answer 10

• an easement gives a person the right to use a portion of another person’s land, usually for a particular purpose (e.g. the right of Canada post to enter onto property for the purpose of delivering mail or union gas for pipeline)

Question 10

Right of way (non-possessory interest)

Answer 10

• a right of way allows a person to cross another person’s land usually to get their own land or to reach another location, such as a beach or body of water (e.g. a shared driveway)

Question 11

Licenses (non-possessory interest)

Answer 11

• a license allows a person to use another person’s land for profit (e.g. the right to operate a golf course on municipally owned land)

Question 12

Mortgage (non-possessory interest)

Answer 12

• gives the holder (the mortgagee) the right to take possession of and sell the real property, if the debtor (the mortgagor) defaults
• mortgagor = borrower
• mortgagee = the bank

Question 13

Joint tenancy and tenants in common

Answer 13

• when two or more people own one parcel of real property, they are either joint tenants or tenants in common

Question 14

Joint tenants

Answer 14

• have an equal share in the real property, and when one joint tenant dies, the other inherits the decreased person’s interest (e.g. Married couple)

Question 15

Tenants in common

Answer 15

• do not have an equal share in the real property, and there is no right of survivorship - if one tenant in common dies, their interest goes to their heirs, not the surviving joint tenant (e.g. when people own a property for business purposes, such as an income property)

Question 16

Transfer of interests in land

Answer 16

• agreements of purchase and sale (contracts)
• land registry system
• land titles system
• title insurance

Question 17

Condominiums

Answer 17

• a combination of: fee simple (apartment or unit) and co-ownership (common areas)

Question 18

Co-operative housing

Answer 18

• not for profit
• members do not own their units
• members pay enough to cover actual costs and repairs
• members have a right to vote on how the co-op is run

Question 19

Landlord and tenant

Answer 19

• contractual and property rights
• run with the land
• must be for definite term

Question 20

Residential tenancies

Answer 20

Restrictions on:

• discrimination
• dispute resolution
• deposits
• rent increases
• termination and eviction
• landlord’s right of distress

Question 21

Commercial tenancies

Answer 21

• basic rent and additional rent
• gross vs. net leases
• permitted use of premises
• rights of renewal
• assignment and sublease
• term and termination
• remedies for breach

Question 22

Finders-keepers

Answer 22

• a person who finds personal property has a right to claim it against anyone but the true owner
• not absolute (ex. Private property)

Question 23

Bailment

Answer 23

- a bailment is when one person (the bailee) is in possession of the goods that belong to another person (the bailor) - examples: renting a car or bike, lending a computer to a friend, storing goods in a warehouse, sending goods by fedex

Question 24

Bailment - standard of care

Answer 24

- the standard of care will depend on: the value and nature of the goods, who the bailment benefits and the terms of the contract

Question 25

Bailment - higher standard of care when:

Answer 25

- goods are valuable or fragile - bailor informs bailee of value/sensitivity - bailee is an expert - bailment is for the benefit of the bailee

Question 26

Intellectual property

Answer 26

- protects the creation of the mind, but not ideas

Question 27

Trademarks

Answer 27

- words, logos, or symbols that distinguish goods or services - can be registered or unregistered (arises automatically, limited geographically)

Question 28

Registered trademarks

Answer 28

Provide - rights of use across Canada - protection against a challenge based on prior use after 5 years - 15 years of protection (renewable)

Question 29

Trademark infringement (both torts):

Answer 29

Either - passing off - trademark dilution

Question 30

Passing off

Answer 30

Passing off requires: - goodwill or reputation in the mark - misrepresentation of the public - damages - is there a likelihood of confusion?

Question 31

Trademark dilution

Answer 31

- involves using a mark in a non-confusing manner that tarnishes or diminishes its value

Question 32

Remedies for trademark infringement:

Answer 32

- damages - injunctions - accounting of profits - delivering up

Question 33

Copyright

Answer 33

- protects ordinary literary, artistic, musical and dramatic works - protects against unauthorized copying

Question 34

Criteria for valid copyright:

Answer 34

- original (skill and judgement) - fixed medium (storage) - connected to Canada - lasts for life of author plus 50 years

Question 35

Copyright - fair dealing

Answer 35

Fair dealing is an exception to copyright protection - review (short snippets of movies) - criticism - news reporting - private study (make copy of article for private use) - parody or satire

Question 36

Copyright- moral rights

Answer 36

- moral rights are the rights of the author or artist to be associated with the work and not to have the work disparaged or humiliated - moral rights cannot be transferred (but can be waived by the artist)

Question 37

Monkey picture

Answer 37

- took his own picture - wiki posted it - owner of camera said no

Question 38

Patents

Answer 38

- protect inventions - provide exclusive rights to “practice” an invention - to practice is to make, use or sell - inventions are: products, compositions, process, improvements on any of these

Question 39

To be patented an invention must be:

Answer 39

- new - useful - not obvious

Question 40

Remedies for patent infringement:

Answer 40

- damages - injunctions - accounting for profits - delivering up

Question 41

Myriad - breast cancer test

Answer 41

- used to test for breast cancer before you get it (if two genes present and family history, then certain to get breast cancer) - very expensive $4000 test - other companies used this method but cheaper cost - myriad sued - however, naturally occurring genes cannot be patented, only artificially created genes can be

Question 42

Industrial designs

Answer 42

- protect the visual appearance of the product (e.g shape or pattern) - protect against manufacture, sale, rent or importation - they must be registered for protection within 1 year of initial use, lasts for 10 years (cannot be renewed) - industrial designs do not extend to functional components or composition, only design or appearance