Elements of Law Session 10
Real Property Law
* talking about land, building, apartment, house, farm land, etc…
Fixtures vs Chattels
Fixture – attached to land in a certain way that you would need something like a bulldozer to remove it. Ex. Shed put on concrete foundation, individually you cannot do it, you need machinery. Therefore it is a fixture.
Chattel – something that can be easily removed from land. Ex. Furnaces in house, one person can take it and carry it out the door.
Two forms of estates (interests in land).
Fee Simple – highest form of ownership of land. Government owns most and what is left over is given to you by the government. Absolute ownership of land, allowing owner to do anything he wants to do with the land.
Lesser Estates (Easements) – Walking across someone’s land open and notorious, and the other person sees you. After 10 years if they have not said anything, constitutes an easement and you own that part of land where you walk on. The land you are walking on is called the servient tenament, the land with the easement. Your land, the person who gets the easement has the dominent tenament.
Another way an easement can be created is by a contract. You can give “possession” not ownership of your land, to maybe Ontario hydro for a fee. If you don’t agree to a contract easement to let them have possession, then you move to the last type of easement. Servient Tenament is you, and dominant tenament is Toronto hydro.
The Term Paper on Mark Antony: A Study of the Person
Mark Antony is known to us through two chief mediums. The first is from the two plays of Shakespeare- ‘Julius Caesar’ and ‘Antony and Cleopatra’ where a romanticized and magnified version of his character is presented. The second comes from the historical analysis and commentaries of Plutarch who compares, contrasts and views all the actions of Mark Antony in back-drop his three contemporaries who ...
Another way to create an easement is a expropriation, where government buys you land at fair market value and gives possession to Toronto hydro.
Final case has to do with development of subdivisions. When they are being built, the builder gives an idea how the houses will be laid out. Say if one house needs to do repair and need more space than given by their property, the builder gives you access by giving you an easement to use the side of your neighbors’ property to do your repairs. A is the servient tenament and you are the dominant tenament.
Only deal with possession NOT ownership. If it is not according to contract or bought over, the time period is 10 years. Right of possession of the easement forever. If during the 10 years, the person objects, the 10 years starts all over again. Objection by the owner starts the time period all over again.
Adverse Possession
Back in the day surveys cost a lot of money and people used to ball park where the property dividing line is. They used a fence to divide the properties. But of course they are wrong, and one person is using the other’s land thinking that it is his. After 10 years of using it, common law registry system says that the person using the land now has ownership of it. So one person loses out on part of their land because their original estimations are wrong.
Under the registry system, if you are a purchaser, you have to go back 40 years to find a good route to of planning and that their was no infringement. Called a 40 year something. Adverse possession only exists under the registry system, it can give either easement or actual ownership.
The registry system is replaced with Land Titles System. Any information you pull out from that is deemed to be correct and if there is any mistake by the government there is Land Titles System Assurance Fund to reimburse you for the mistakes. Under the Land Titles System, there is no adverse possession.
Two or more individuals can own land in two ways;
Joint Tenancy – all parties own an interest in the property and it is not divided, they own an undivided interest in the property. During the lifetime of the joint tenants, neither can deal with their undivided interest of the property without the consent of the other. On the death of one of them, the property transfers to the other by right of survivorship. If you want to end joint tenancy, you can sever it, one person gives notification of it to the other. Once you sever it, it goes to tenancy in common.
The Term Paper on Land Law
SECTION A Question 1(a) A mortgage is a charge over land or other property to secure payment of a debt or ... purchase of an estate, law and equity raise certain rebuttable presumptions about the ownership. As to the legal estate, this ... reasons (economic and social), land should not become “sterile”. The system for adverse possession allowed “abandoned” land to come back into ...
Tenancy in Common – own an undivided interest in the whole of the land. One person cant point to any section of the land and say that is theirs. Even though it is undivided, during their lifetime, each tenant can deal with their undivided interest on land without the consent of the other. Meaning they can sell it, lease it, deal with it by will. Therefore there is no right to survivorship, as they can deal with the property with a will. This at times can get you into a lot of trouble. This is recommended when two families decide to buy a cottage property together, they are able to leave it to their kids so the families can continue to use it together.
Mortgages
* a debt secured by land.
* Two parties to a mortgage is the Lender (Mortgagee), and Borrower(Mortgager)
* Deal with three situation when dealing with mortgages
Long time ago, Common Law, transferred ownership from the mortgager (owner) to the mortgagee (lender).
At common law Ex. A owns a property and A gives a mortgage to B, this is a first mortgage, and transferred ownership to B. The property is worth 100,000 (equity) and the mortgage is 70000 (equity of redemption), the rest of the money, remaining equity is 30000. If A puts a second mortgage, he doesn’t have ownership of the property, so he can give a mortgage on the equity of redemption (70,000).
A mortgage of the promise to pay back the first mortgage. Under common law, A only has a right to mortgage the equity of redemption not the actual equity of the house. B is the bank, A is taking out a loan. So the second mortgage would be A taking another loan. So once you pay back the first mortgage, the ownership transfers to the second mortgage, and once you pay that then you finally get ownership back.
Now in the future, under the Registry Act or the Land Titles Act, a mortgage does not transfer ownership but remains as a debt secured on the land. On June 1 2010 A bought a property for 500000(equity) but he did not have the money so he went to the bank to borrow money. He puts a first mortgage for 200,000 (equity of redemption) and remaining equity is 300000. Now we can put a second mortgage because we have ownership unlike under common law, for 100000, and the remaining equity on property now is 200000. To distinguish between each mortgage to see which is first and second, you look at the date, time of registration of each mortgage (priority of mortgages).
The Review on When Does Title to Real Property Transfer in the State of Arkansas
The State of Arkansas was selected as the example state because of its proximity to surrounding states of Tennessee, Mississippi, Missouri, and Okalahoma and the frequency in which individuals change their residency between the surrounding States. The research examines the type of real estate transfer theory practiced in the State of Arkansas by reviewing relevant case laws, mortgage practices and ...
A mortgage is a special (formal) type of contract. Bank loans you money and you agree to pay back at a certain rate and time. Mortgager agrees to certain things such as paying the mortgage on time, and second, paying the reality costs on the property, and thirdly to insure the property against fire. Mortgager also agrees to keep it in good condition, in legal term, mortgager will not do waste to the property. Default under the mortgages, means anything that the mortgager does that is against what is outlined above. Ex. Mortgager does not insure against fire, it is a default. Under default, mortgagee has a few amount of remedies outlined in the terms of the mortgage;
1) Judgement on the convenant
2) Possession – mortagee seeks a court order to get possession of the property
3) Sale under power of sale – certain terms outlined under contract to sell under fair market value
4) Foreclosure – separate from other remedies, under act of law, mortgagee under court of law requests to cut out the ownership from mortgager and give it to mortgager.
Sale under power of sale – Mortgagee is trying to sell the property so that it can pay back the mortgagee. It will also ask for judgment on the covenant, if there is not enough equity in the property, so it can go against mortgager for deficiencies. They also want possession so that when they sell the house, the mortgager won’t be in the house. This is going to be used in good economic times so that it will actually be able to pay of the first mortgagee. In bad economic times, mortagee might not be able to recover all of its money because the equity of the house might have fallen. At this point instead of doing that, the mortgagee moves for a foreclosure so that it can hold the property and wait for a good time to actually sell the house.
The Essay on Submit Gulf Real Estate Properties
Many people dream of having a home with an ocean view from their home. Being able to walk onto your patio, sit, and admire a sunset sound like a scene in a Nicholas Sparks’ novel. So it should come to no surprise that homes with a scenic ocean view can demand a high price in the real estate market. Below you will see just how different the price from a sample of Florida condominiums sold with and ...
Example:
Original Value of Property = 600,000
1st Mortage = 550,000
First situation value remains the same, the first mortgagee will move for power of sale.
Second situation, value is at 530,000, he will still do power of sale because the value is not that much lower.
Third situation, value is at 300,000, he will use foreclosure because he will be out a significant amount of money if he goes power of sale, so he should hold the land until the price goes back up.
Fourth situation, first mortgage changes to 500000, and second is 50,000. If first mortgagee defaults, he uses power of sale, gets back its money and pays the second mortage. If second mortgage defaults, he will do power of sale and pay of the first mortagee back, 500,000 to first and 50000 to them and 50000 remaining the mortager.
Fifth situation, value is 525,000, if first mortgage defaults, he uses power of sale, gets back its 500000, gives to 25000 to second mortgager, and then second mortgagee out 25000 so they sue the mortgager for the remaining money. A second mortgage has higher risk for not being paid back, so they have higher interest rates.
Sixth situation, value is 250,000. Second mortgage defaults, it cant power of sale or foreclose because of the first mortgage. So they will walk away and sue the mortgager. The first mortgagee will now foreclose and wait for property to go back up in price.
Seventh situation, original value for 600,000, first mortgage for 400,000, and second for 150,000. The new value is 400,000. In this situation second mortgager even if it sues, it wont be able to get the money but they will just sue the mortgager and walk away.
Eighth situation, new value is 350,000, the second mortgage defaults. So the second mortgagee will go for foreclosure, and use its own money to pay off the first mortgage. And then hold the property until it can get back all its money or back to close to 550,000.
