Law Study Notes:
Chapter 1 – History and Concepts of Property Ownership
The method of “holding” land rather than “owning” it was called a system of tenure.
Alienability: refers to the power to transfer tenure to another during one’s lifetime or at the time of death.
Common Law: is the part of the law that is formulated, developed and administered by the common law courts, mostly underwritten and founded originally by common customs.
Types of Estates:
Estates – describes an interest in land or more specifically the degree, quantity, nature, and extent of interest that a person has in real property.
Estates can be classified under several general headings: 1. Estate to use: ownership obtained by deed, will or possession. Ownership was often held for a future buyer and was often used to avoid a dower right. 2. Fee Simple: highest estate or absolute right in real property – essentially absolute ownership. Can be created where it terminates under certain conditions. For example: Fee Tail – a historical fee that restricts the inheritability of land to a limited class of heirs, such as the eldest male. 3. Future Estate: typically a component of a life estate 4. Leasehold Estate: Interest in land for a defined period of time 5. Life Estate: granting an interest in a piece of land to someone for a lifetime period.
Bundle of Rights: The rights that are guaranteed by law in relation to property. These include: the right to use property, sell it, lease it, enter it, give it away, and finally the right to refuse to exercise any of these rights.
Government Limitations: 1. Police Power: Right to regulate property for the protection of people 2. Power of Expropriation: The right to take private property for public use. 3. Power of Taxation: Right to generate revenue through the taxation of land 4. Escheat: Right to have the ownership of property return to the state in the event owner dies and has no known or ascertainable heirs.
Concurrent Ownership:
Falls into two primary categories: joint tenancy & tenants in common.
Joint Tenancy: ownership of land by two or more persons whereby, on the death of one, the surviving tenant acquires the whole interest in the property. The owners have the same size of interest, the same procession and the same title to the land. A presumption exists that unless specifically specified as a joint tenancy, the grant of land to two or more people will become tenants in common.
Four unities to Joint Tenancy: 1. Title – All joint tenants must derive their title from the same instrument (deed or will) 2. Time – Interest must begin at the same time 3. Possession – Each tenant is entitled to undivided possession of the whole of the property and none can hold any part separately. 4. Interest – Interest of each tenant must be identical in nature
Additional Considerations:
Survivorship – the right of survivorship is an important consideration. If one tenant dies, their interest automatically transfers to the surviving tenant.
Spousal Interest – The Joint Tenancy is severed in the event that one tenant dies and owns the interest in the property with someone other than their spouse.
Termination – Automatically become tenants in common. Other tenants can remain joint tenants.
The Family Law Act - The Matrimonial Home
Designation of a matrimonial home essentially means that the property is deemed to be the family residence at the time of registration
Any property in which a person has an interest and that is or has been occupied by the person and their spouse as the family residence; matrimonial homes include condominiums, co-operatives, and leasehold interests.
Chapter 2 – Leaseholds and Property Interests Other Than Ownership
Exemptions provided under the residential tenancies act:
- Travelling and vacation properties
- Living arrangements that are conditional upon continued employment
- Living accommodations provided by