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A matrimonial home is a home where a married couple lives
It is not necessary to designate a specific property since the primary residence of the married couple is a matrimonial home
All properties acquired after marriage except those gifted or inherited are equally divided, unless a contract to the contrary is signed (often known as a pre-nuptial agreement)
Matrimonial Home
Both husband and wife automatically on the title of the property even if only one of their names is mentioned
Written consent from one’s spouse (known as Spousal Consent) is required to sell a matrimonial home
In case of a divorce, both parties will have a 50% ownership right, or a right to 50% of the sales proceeds
Matrimonial Home
If a property is gifted or inherited to one party during marriage, the other party cannot get a share after divorce
Properties purchased during marriage shall be split 50-50
Investment properties purchased besides the matrimonial home prior to marriage will be split 50-50 unless a pre-nuptial agreement is signed
Matrimonial Home
For example, consider a single man who owns two properties prior to marriage. He gets married and the newly married couple moves into one of the properties, which subsequently becomes the matrimonial home.
If the couple gets divorced, the wife can get 50% of the net value of the matrimonial home. She can also get 50% of the increase in investment property, unless they were gifted or inherited
Matrimonial Home
Partners do not own an equal share of the business; they have unequal rights
Partner with smaller share has less control and requires consent to implement decisions
Partner with higher share has more control
If there are more than 3 partners with unequal shares, highest share holder can dominate but will require consensus with other partners
Limited Partnerships
Partners have equal rights under a general partnership
All partners have an equal share in the business
In case of a two-person general partnership, the partners enjoy a 50-50 share in the business
General Partnerships
Under a limited partnership, partners are liable up to how much money they have invested. Under general partnership, all the partners are responsible for all the debt
Limited partners cannot bind other partners, whereas general partners can bind all other partners
Limited partnerships must be registered and should have one partner with a majority ownership or stake
Limited vs. General
Real Estate ◦ Tangible (can be touched physically)◦ Examples include land, buildings and structures
Real Property◦ Combination of tangible and intangible◦ Intangible elements include rights over property,
including right to use, sell, lease or occupy◦ Examples include fixtures attached to homes,
such as lights and built-in appliances, as well as personal property
Real Estate vs. Real Property
It includes chattels on a property
Includes cars, boats, and refrigerators if they are not built in, furniture, clothes and books
Chattel is typically moveable in nature and not fixated to the land or structure.
Personal property, unlike fixtures, are not included in the agreement of sale and must be explicitly included if you want to sell them
Personal Property
A salesperson shows a client a property. The client asks if the chairs and dining table are included in the sale. The salesperson says they are included, but once the transaction goes through, the seller removes them.
The seller is responsible if the furniture was built in since it is a fixture and included in the sale. The salesperson is responsible if the furniture is moveable since it was not explicitly included in the sales agreement.
Personal property vs. Fixtures
Riparian rights are rights that land owners have to use water on, under or adjacent to their land
They include right to swim, right to fish and right to drink the water
Riparian Rights
Dominant Tenement ◦ The property (tenement) or land that benefits
from an easement
Subservient Tenement ◦ The property (tenement) or land which has the
burden of an easement
Tenements
An easement is a right of way that is exercised by the dominant tenement over the subservient tenement
The person who enjoys the right is dominant while the person who serves it is subservient
Easements exist over land or property, not persons.
Easements stay with the property even when sold
Easements
Dominant and subservient tenements do not need to be adjacent to one another, but they need to be within reasonable distance for an easement to exist
Easements give parties who do not own land the right to trespass on that land
Examples include easements given to landlocked homes for access to roads
One should consider easements before buying homes that are subservient tenements
Easements
There are four ways to create easements1. Express Grant • Subservient owner decides to grant easement in
favor of dominant owner • Done through express (verbal or written) grant
2. Implication• Easement impliedly granted• If you sell a part of your home to someone else, they
will have implied easement to use your driveway• Easement implied because the buyer would not be
able to use land for intended purpose without it
Creating Easements
3. Prescription• Individual obtains easement right through adverse
possession (squatting on the land)• It is obtained by means of its continuous exercise over a
certain period of time• If you build a balcony that extends over your neighbor’s
land, over time, you may obtain an easement over that land
4. Statute• Easements are also created by a number of provincial
statutes enacted through legislation.• For instance, utility companies by law are allowed to
install and maintain electricity cables• These easements do not require a dominant tenement• Easements cannot be created by expropriation
Creating Easements
There are three ways to terminate easements1. Merge
The dominant tenement and subservient tenement merge to form a single property
This means that the buyer owns both properties2. Release
The subservient tenement is released by the dominant tenement
3. Ceasing of purpose The right of way for which the easement existed
ceases to serve its intended purpose
Terminating Easements
Restrictive covenants are restrictions placed on a property
They are “promises” preventing owners of property from doing certain things◦ For instance, owners may be restricted from
painting their property purple
If you sell a property, you may put a restrictive covenant against it◦ Business properties are often sold with restrictions
preventing new owner from setting up competing business
Restrictive Covenant
Profit A Prendre is a right granted in writing to enter a property and remove something from the property
It is often granted to extract fruits, minerals and wood from land
It is like a lease, but allows for taking of profit from the property
Profit A Prendre
A landlord and a farmer agree that the farmer will be able to grow fruits on the land and sell them in exchange for a monthly fee of $1,000. The landlord sells the land. The farmer retains his right to sell the fruit if he continues to pay $1,000 if the new buyer allows such use.
But what if the new buyer does not allow such use? If the seller gave notice of the contract and the buyer was aware of it, the use may continue.
Profit A Prendre
The use can continue if the buyer assumes the contract with the farmer from the seller.◦ This is typically required by sellers so that the new
buyer may be sued for breach by the farmer instead of the seller
Barry leases 200 acres of corn farm land to Miller. Barry does not harvest crops himself. Miller has equipment to harvest corn and so he leases property for five years. Lease provides Miller with the right to harvest corn in the current year, and grow and harvest corn for remaining four years
Profit A Prendre
Encroachment is a type of right that arises from unauthorized entry onto properties of another
This right arises unknowingly
For instance, if you plant a tree in your land and it grows into your neighbor’s home, you will have encroached their land
Encroachment
Escheat is when the government takes land until a family member claims it
For instance, when the owner of a property dies without leaving a will, the government will take possession of the property till an heir, somebody from the deceased’s family, makes a claim for the property
Escheat
Expropriation is when the government takes over private property for public use◦ Recap: Expropriation is an exception to fee simple
ownership
Government must give fair compensation to owners of expropriated private property◦ Aggrieved owners may go to the Board of
Negotiations if they think compensation is unfair◦ Board of Negotiations is empowered with
expropriating property under Expropriation Act
Expropriation
Land use restrictions do not apply to expropriated properties◦ The crown does not face any restrictions with
regards to the usage of land◦ If they choose, they can expropriate an entire
neighborhood to construct a large seaport
Expropriation
A condominium is a fee simple ownership of a defined space within a multi-occupancy building such as a multiple dwelling in which portions used jointly (common elements ) are in common ownership with other owners
Buyer of a condo gains fee simple ownership of a single unit◦ It can be tenancy in common or joint tenancy
Buyer also has common interest / co-ownership interest in common elements (gym, stairs, pool etc.)◦ Interest in common elements is only tenancy in common
and not joint tenancy
Condominium
Condo unit owners are fee simple owners of their unit and collectively own the entire building (including its debts)
Condo unit owners may sell their unit but not the common elements, which must be removed from the sale◦ You can sell your unit and tenancy in common
interest in the common elements◦ These are sold using one deed; no separate deed
required for selling the unit and common elements
Condominium
A condominium registration has two elements:1. Declaration• Declaration is the legal structure• It is often called the “condominium constitution”
2. Description• Description is a drawing (survey)
A condominium is registered when both declaration and description are registered
Condominium
A Co-Op is a kind of joint ownership whereby a property is owned by a corporation◦ Members purchase shares in the corporation◦ This gives them an interest in the property
You own a share in a unit because of which you are allowed to live in a specific unit as stated in an agreement◦ It is different to condominium because in a Co-Op,
you own a share and not an actual unit
Members granted rights because they own specific shares; they are not fee simple owners
Co-Operative
Co-Ops provide more security than rented properties in most cases◦ Sought by people avoiding uncertainties of rent
market, including expiry of lease and rent increases
◦ Residential Tenancy Act does not apply to them so they are not subject to rent increases
◦ They are a popular option with university campuses since they provide affordable housing to students
Co-Ops are frequently referred to as welfare housing
Co-Operative
Cooperatives are either:1. With share capital (equity co-operative)• If the corporation is dissolved, all liabilities including
mortgages and debts will first be paid off, after which profits from sale of land its structure(s) will be shared amongst shareholders
2. Without share capital (non-profit co-operative)• Aims to provide accommodation to members, not
provide gains for members• If the corporation is dissolved (terminated,
bankrupted, closed), it will first pay off liabilities (debts and mortgages) and then distribute leftover property
Co-Operative