Untitled

• Real property includes land, items attached to land like fences and buildings, and fixtures attached to them.

Extent of Real Property Rights

• The traditional view of real property rights is a giant carrot theory, extending from the earth's center to the heavens.
• The modern view is reasonable use, from a reasonable depth to a reasonable height.

Interests in Land

• Enforceable rights related to a piece of land include contract rights and property rights.
• An estate interest provides an exclusive right to possess real property for a period of time.
• There are three varieties of estate interest: fee simple estate, life estate, and leasehold estate.

Estates: Fee Simple

• Fee simple provides the largest bundle of rights one can own, including choosing who gets it after death.
• Limitations exist on ownership rights, like tort obligations, government regulation, and forced sale to the government for public purpose (expropriation).

Estates: Life Estate

• Life estate grants the right to exclusive possession during someone's life; the relevant life is usually that of the interest holder.
• The interest automatically terminates upon death, reverting to a party with fee simple or remaining to a person selected by the party with fee simple.
• A life estate holder is liable for waste, which are acts that significantly affect the value of land
• Life estates are generally inappropriate in business due to it being impossible to predict one's lives.

Estates: Leasehold

• Leasehold is a right to exclusively possess for a specified period and the period must be stated with certainty at outset.
• Leasehold differs from life estate, which has an uncertain duration of life.

Shared Ownership

• Individual ownership occurs when different parties own different pieces of land and can exclude other parties.
• Shared ownership is when several parties own a single piece of land
• Each party has an undivided interest, and no party can exclude others from the property.
• Each party is entitled to share in general profits.

Forms of Shared Ownership

• Two important types of shared ownership include joint ownership and co-ownerships.
• Joint ownership (joint tenancy) gives exactly the same interest as a property and has a right of survivorship.
• Co-ownership involves two or more parties sharing an undivided interest in a property
  • Unlike joint ownerships, co-ownership have different interest and no survivorship.

Joint Ownership Explained

• Definition: Two or more parties have identical interests.
  • For example, two joint tenants have necessarily have 1/2 interest each & four joint tenants: necessarily 1/4 interest each
• General profits split equally.
• Right of survivorship: There is no right to dispose of interest on death, interest automatically passes to remaining tenants, and the ultimate survivor acquires entire property

Co-Ownership Explained

• Definition: 2 parties have undivided interests
• Unlike Joint Ownerships parties need not have identical shares
• If 3 co-tenants: 1/2, 1/4, 1/4 interests possible
• General profits split proportionately
• With No right of survivorship: there is a general right to dispose of interest on death
  • Often preferred in business to allow the family to receive business property on death.

Severance and Partition

• Procedures exist for termination of shared ownership.
• Severance of joint ownership happens when a joint tenant does any act inconsistent with identical interests, like selling an interest to an outsider.
• Partition involves division of property or its sale proceeds, is often applicable to joint tenancy or co-tenancy, and occurs via agreement between parties or court order if parties cannot amicably settle.

Condominiums

• Condominium is for joint control
• It involves having a combination of individual and shared ownership.
  • Individual ownership of single unit (e.g. apartment)
  • Co-ownership of common areas (e.g. pool, gym)
• Condominiums are managed by a condominium corporation, financed by condominium fees.

Non-Possessory Interests

• Definition: interests in real property that do not include right to possession.
• Types: easements, restrictive covenants, and mineral leases

Easements

• Definition: the right to use a neighbor's land.
  • An easement can either be positive, allowing one party to do something or negative, prohibiting one party from doing something.
• Involves the use of neighbours, but not necessarily next-door neighbours.
• Easement can run with the land if there is a Dominant tenement (property that enjoys benefit) and Servient tenement (property that bears burden).
• Can be created in several ways like express, agreement between parties (E.g., pre-condition / getting water in the well.) and Implied

Creation of Easement

• Express: agreement between parties as a precondition to getting water in the well.
• Implied: necessary for practical convenience, like a road right of way.
• Prescription: use of land for long-term without permission, like no complaints about dumping garbage for decades.
• Statutory: public utilities, like a telephone wire through your property.
• License: When acting in a way that would not otherwise be allowed,

Restrictive Covenant

• Definition: promise limiting use of land.
  • Requires dominant and servient tenements.
• Differs from easement: restrictive covenants can only arise from an agreement and never allow a property owner to use a neighbor's land.
• Enforcement occurs of restrictive covenant by successor of dominant (Positive) like a promise to repaint the building on my part of the land every two years.
  • There is limited enforcement against successor of servient (Negative) like a promise that I will not use my premises as and auto body shop"

Mineral Lease

• Definition: right to extract and retain minerals.
  • Minerals are virtually any substance in the ground, but no ownership of minerals until actually extracted.
• Mineral lease generally acquired from government since the 1880s land grants generally exclude minerals
• Profit à prendre: is similar to mineral lease : Includes the right to extract something of value from land & can cover minerals or other natural things

Surface Area & Mineral Lease

• Common law: entails possession of a small area of land
• Statute law: require a mining company to obtain a separate surface lease in addition to the government mineral lease.

Leases

• A lease (or tenancy) is an estate in land for a specific time created by contract.
  • It is usually unenforceable unless evidenced in writing(except for a short-term lease for 3 years or less).
• The parties include the landlord and the tenant
• Lease must be for a definite, determinable amount of time

Leases: Duration

• Fixed term tenancy: Specified period plus perhaps automatic termination.
• Periodic tenancy: Specific period with automatic renewal unless notice to quit.
• Tenancy at will: No specified period with right to quit at any time
• Tenancy at sufferance: Occupation without permission

Terminating Liability for Lease

• If you no longer want to occupy premises for the full length of a lease, you may terminate the lease early (with consent of landlord, which follows general contract law), assign the lease, or sublease to a third party.

Leases: Assignments

• Contractual rights are generally assignable.
• Rules regarding assignment of lease (contract) / limitations:
  • Lease may prohibit assignment or require consent.
  • Assignment of real (but not personal) covenants that are promised to be directly related to the property.
  • Assignor remains liable if assignee defaults.
  • Assignment must cover entire duration of lease, sublease necessary for a shorter period

Leases: Subleases

• Definition: lease by tenant to third party.
  • Tenant remains liable as tenant under head lease, tenant becomes landlord under sublease and the head lease may prohibit sublease or require consent.

Commercial Leases: Covenants

Commercial lease: lease for business purpose with Freedom of contract generally allowing any terms.

Standard terms often include:

• Rent: obligation owed by tenant including the gross lease and the net lease

• Rent review: contract allows for periodic review

• Independent obligation where the tenant will honour the rental payment irrespective of the landlord fulfilling its promise

Commercial Leases: Covenants

• Quiet possession: obligation owed by landlord.
• Prohibits landlord from interfering with tenant's enjoyment.
• Repair and maintenance: Renovation maybe restricted
• Landlord takes care of building and common areas, while tenant is responsible the leased premises
• Taxes: obligation on landlord while insurance is good risk management for both parties.

Commercial Leases: Remedies

• General contractual remedies: Compensatory damages, discharge for breach of condition, injunction, and/or specific performance which may be a reduced duty on landlord to mitigate in some jurisdictions
• Special statutory remedies for leases: where there is Eviction: repossession of premises by landlord and distress: the sale of tenant's belongings to pay rent

Residential Leases

Residential leases: are lease premises for a place to live

• These generally require that residential tenants may have less resources or be less sophisticated than commercial tenants
• In most residential leases there is unequal status and potential for exploitation
• Law controls residential leases more than commercial andextensive legislation regulating leases

Indigenous Interests in Land

• Recognizes the idigenous people of Canada including First Nations, Inuit, and Métis Peoples

• Acknowledges the Aboriginal title & The Aboriginal rights of historical practices.

  • Aboriginal rights are provided for under a treaty with the Crown

• Impact-benefit agreement occurs between Indigenous communities and businesses proposing projects that could affect Indigenous rights.

• Reserve lands* are also defined and include the land that has permanently been removed from a First Nations Reserve & Designation.