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ADMS 2610 NOTES Real Property Law

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Administrative Studies
ADMS 2610
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Real Property Law Lease Leasehold interests apply to real property (ie, land, buildings, farms). • Tenancy: a relationship between parties governed by a lease A lease is a transfer of possession of land or property (real property) from the owners to the tenant for a period of time with the expectation of the property being returned. • A lease that is more than a year should be written, with the exception of leases residential under leases residency tenancy legislation can be oral, but by law they have to be in writing so that there’s no conflict with the Statute of Frauds • A lease can be an express term or term servient • For ex. A in lease with B, a tenant, the landlord, for term of 5 years, this is a lease for a specific term (fixed term – 5 years), so long as A meets the obligations under the lease, then A will have the leased property for 5 years until the contract comes to an end, unless the parties agree otherwise • Period of time lease – maybe a day, week, month, then it renews itself unless terminated • Tenancy at will lease – happens when A enters into formal leases with landlord for office, today. But office won’t be ready for 3 months, but B says I have vacant offices in my building for the mean time. That is tenancy at will. It can be terminated by the landlord at any time. Read in text • The owner of the property who is going to give the lease is referred to as Landlord or lessor. The person who takes the lease is the tenant or lessee. o A the landlord, leases property to B the tenant, and then B leases the property to C (the sub tenant or sub-lessee). Lease between landlord and B (headlease), so A becomes the head-lessor. Then B becomes the tenant. The lease between B and C (sublease): B becomes the sub-landlord, and C is the sub-tenant. A sublease can only occur with a lease in existence. A - headlandlord. B - Sublandlord, C - subtenant o Where you have the sublease, C the subtenant will pay the rent to B. B still has the obligation to pay the rent to the landlord o Any other obligations between the landlord and B and passed on to B and C, C still has those obligations to fulfill to B. And same with B – has to fulfill obligation to pay A.  An assignment will help to solve this: in assignment, we can get rid of B in entirety and create a lease directly between the landlord and the subtenant. To do this, notice must be given, etc.  Assignment to C: landlord gave a lease to tenant…the tenant will make the assignment. Assignment will be from tenant to sub tenant with landlord’s consent. Tenant will step out of the picture and sub tenant will become the tenant and will carry out the obligations the original tenant had to the landlord. Landlord has nothing to assign. The tenant had the rights to the lease. Sub tenant becomes assignee. Tenant becomes assignor.  A residential lease applies to premises that are used as a residence. Ex a house, condominium.  Commercial tenancy is a lease of commercial premises like a lease of an office of a building. Used for commercial purposes.  Difference between commercial and residential lease has to do with the number of terms. Commercial leases will be longer. For commercial leases, a net net lease: the tenant pays a base rent/initial rent based on the square foot of the premises of the place being rented. For ex, $3 per sq ft. The base rent if first paid. On top of that there is additional rent, like paying of the real estate of the taxes of the building. If lease doesn’t specify terms, the landlord is responsible…all obligations falls on the tenant and not the landlord.  Obligations of a landlord under a residential/commercial lease is to give quiet enjoyment (not interfering with the tenants use or enjoyment of the leased premises) of the that is leased is called lease premises (aka lease property). If there is a breach by the landlord of the covenant of quiet enjoyment then it is actionable by the tenant and can amount to terminate the lease. Quiet enjoyment is an important covenant  Obligations a tenant has to landlord is to pay the rent, and not damage the leased premises (keep them in good repair). Any other obligations are specifically set out in the lease…landlord and tenant have a contractual relationship. Must look at the fact situation to determine the terms of the contract (if any) when you have a leasehold question.  On default of a residential lease, landlord can sue you if default is arrears of rent. Landlord can give re-order for re-entry. Landlords can’t just re-enter premises. Landlord, for both commercial and residency lease, can also have the right of distress to collect the property of the tenant and hold on to it pending payment and then return it – if failing, landlord could sell the property and get recover his or her money…but this has been removed from legislation, and expressly is stated in the commercial lease. Right of distress continues in a commercial lease and landlord has the right to re-enter the premises, defined in the lease itself and not in Statute.  In a commercial lease, the right of re-entry by landlord terminates the lease. Landlord can sue in damages.  In a residential lease, where landlord gets an eviction order and serves it, the lease is over, but is different.  A covenant is a provision in a contract that is of extreme importance  In Commercial Lease, landlord has to consent. Shopping centre is a commercial lease Surrender of lease – a mini contract between landlord and tenant, where the tenant surrenders the remainder of the term (for ex, maybe they don’t want the premises) for ex, the remaining of 4 years left of a 5 year lease, back to the landlord, and landlord releases the tenant for good and final. o This is in favour/benefit of a tenant. Lesser Interests in Land • Full ownership interest in land is called fee simple; o A owns land in fee simple, he owns it fully, he can lease, sell, rent, transfer, etc. (all the rights of ownership) • Chattel: something you own and can move (desk, chair) • Express grant: a right to allow a second party to use the other party’s land, for repairs, etc. It deals with right of way: a right to pass over the land of another, usually to gain access to one’s property (for public purposes like hydro powerline or pipeline) and easement: a right to use the property of another, usually for a particular purpose (ex, a person may wish to place something such as a telephone line or gas pipeline on or under the lands of another for particular purposes) o Dominant tenement: a parcel of land to which a right-of-way or easement attaches for its better use o Servient tenement: a parcel of land subject to a right-of-way or easement • Restrictive covenant: a means by which an owner of property may continue to exercise some control over its use after the property has been conveyed to another Just read the section generally Registration of Property Interests/Possessory Interests in Land • Adverse possession: a possessory title to land under the Registry System acquired by continuous, open, notorious possession of land inconsistent with the title of the true owner or a period of time (usually 10 – 20 years)…occupant would be expected to use the land, pay taxes, maintain fences, etc. • Registry system: a provincial government operated system for the registration of interest in land. It is the older system, Ontario has moved to Land Title’s system • They had to do a 40 year chain of title search o A wants to buy B’s land, if it’s under the Registry system, A’s lawyer has to do search of
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