Real Estate exam prep UBC

Whats is the difference between Civil/tort/private laws and Public law?

Civil/tort/private - deals with problem between individuals (breach of contract, divorce, agency or contract law)

Public - Problems between state and individuals (tax/constitutional/ criminal law )

SSBS Hiearchy

small claims

-claims of 35000 or less

- where defendent lives or where claim occured

supreme court of BC

-No territorial limitations present

- judge can order new trial

BC court of appeal

do not rehear evidence but review the legal principles

Supreme Court of Canada

the highest appeals court in Canada; also deals with constitutional questions referred to it by the federal government

- Not required to hear all appeals

- no evidence is reheard

Describe the steps of the trial process ?

1. Pleading

- civil claim presented by plaintiff

- response of civil claim by defendant (statement of denying )

2. Discovery (No judge)

- mini trial present facts before trial to often reach a settlement

- allows observation of the strength and weaknesses of the claims presented

3. Trial

- Plaintiff must prove the case

4. Judgement

court issues a dicision to resolve the issues

What are the 4 options of enforcing judgment ?

1. examination of the judgement debtor

- creditor wins

-debtors assets analyzed (cars,house)

2. Writ of execution

assets can be siezed and sold to statify the claim of sheriff

3. remidies against the land

-lien

4. Garnishing wages

- 30% only

organization hierarchy in Brokerage

1. Brokerage- office/specific location

2. Managing broker - of office

3. Associate broker - assistant manager

4. representative

the real estate foundation is responsible for ?

1. real estate Law reform

2. 5 members (minister of finance + 4 members)

3. Education + research

4. Receives all interest payable on all brokerage accounts

-Protects the public

The real estate council is responsible for ?

1. Enforcing the ACT(

2. Maintaining and advancing the knowledge of its licensees

3. 16 members (9 brokers + lay members + realtors)

4. Establishing educational requirements

5. issuing and renewing licence

5. holding disciplinary hearings

6. suspend/repremend/ cancel license

7.Inspect and copy records

8. investigate before and after you received license

9. May apply to the court in order to seize records

-No law reform

-Statutory

Real estate errors and omissions corp.

1. Levy different acessments on Licenses

2. failure to pay immediate suspension of the license

3. Up to 1 million coverage per licensee / $2000 deductible (Brokerage also pays)

- Imposes licensing requirements

real estate compensation corp

if the person suffered loss the council will refer to a refund

-establishes RE council

British columbia real estate association (BCREA) is responsible for ?

1. Public relations

2. government consultation

3. ongoing education

-11 real estate boards : runs MLS + enforces code of ethics

- reveal estate institute of BC : advanced education

Real estate development acts Imposes ___?

disclosure requirements on developers with superintended of R.E

Subdivisions - 5 or more

Strata Lots- 5 or more

Cooperactive interests - 2 or more

Purchasers are protected by requiring developers to :

1. meet requirements or approvals of the property

2. Assure purchasers title

3. file disclosure statement in the form required by superintended of R.E

How many days do you have to remind purchase , according to ____ statement ?

Disclosure statement

-7 days

describe the rules regarding commission?

1. Cannot be over and above the listed price the owner wants

2. can be any amount , no Max on Min

3. Must be disclosed

Disclosure of interest in Trade

1. disclosed that you are licensed

2.Must Be in writing

3. Made before any agreement is made

4. Must be win the form required by RE council

what must the disclosure contain ?

1. Name who you disclose to

2. legal description and address of subject real estate

3. indication the licensee is licensed

4. Signature of licensee, date + witness

acceptance of the offer requires

Delivery to every party involved

`

If a licensee makes a promise in order to induce anyone to purchase it has to be in ____ and include ____ of the other party

1/ writing

2/ signature

Common Law

1. originated from england

2. Doctrine of stare decisis

3. Uniformity

3. Precedent

Equitable Law

originally from england, non money remedy, to avoid unjust enrichment by only uses of common law, includes injunctions (court orders not to do something)

Statue Law

A law or act passed by government

-created through legislation ( ex/ land title act)

- Made to alter/change common law

rank the sources of law from strongest to least strongest in power authority?

1. statue law

2. Equitable law

3. common law

what are the remedies regarding common law?

Damages

what are the remedies regarding Equitable law?

1. Specific performance (can force you to carry out services)

2. Injuntion (restraining order)

3. Quantum Meruit ( Much as you deserve)

what are the areas/laws does the federal , Provincial and Municipal goverment control

Federal - harbours/airports/fisheries/criminal matters/ national defense

Provincial- Property+civil rights, municipal, institutions, education

Municipal - pass by laws

What are the features of the trust account?

1. vrokerage must have at least one account in bank

2. not for each client

3. can NOT that money out for business expenses

Real estate services provide

1. Assistance in sales

2. rental property assistance (collecting rents, negotiating, making payments)

3. Assisting in the sale

exception to real estate license

-for sale by owner

- collection agents

-Notaries

-accountants

- person acting on behalf of developers

Freehold and lease hold are both

crownload

freehold(Fee Simple)

1. Do as you wish

2. Lifetime ownership

3. can be inherited

-is not subject to full crown land use

Leasehold(certain period)

1. Includes First Nations Land

2.city owned and federal land

A freehold stated in will is called ? Not stated in will ?

Stated in will called: Remainderman

Not Stated in will: Reversioner (closet relatives)

Life Estate Pur Autre Vie

A life estate in one person with another person serving as the measuring life.

Life Estate

An interest in real or personal property that is limited in duration to the lifetime of its owner or some other designated person or persons.(ends at death)

what rights does the life estate holder have?

Rights: Can use and occupy

- can receive revenue

What obligations does the life estate holder have ?

1. yearly operational expenses

2. waste

3. Pay interest on the mortgage

life without impeachment for waste

When a tenant for life holds the land without impeachment of waste, he is of course dispunishable for waste whether wilful or otherwise. But still this right must not be wantonly abused so as to destroy the estate, and he will be enjoined from committing malicious waste

- Not liable for common law waste (3)

- Liable for equitable

state and describe the types of common law and statue law wastes?

1. Voluntary - cutting a tree , pulling down garage

2. Permissive - allow property to deteriorate

3. Ameliorating - improve property

Statue law

-Equitable

- destruction of building

The extent of ownership in land includes ___ and ___?

1. Fixtures

- go with the land

-belong to purchaser

-affixed to enhance the land

1.Chattels

-furniture

-remain personal property of seller

-affixed for enjoyment of the item

Ownership of land includes:

Airspace only

Subsurface and water rights do not belong to the owner

interest in land less than estates includes

1. Easement

-a right to cross or otherwise use someone else's land for a specified purpose

2. Restrictive covenants

- a covenant imposing a restriction on the use of land so that the value and enjoyment of adjoining land will be preserved.

Easement

Dominant and servant LOT

-dominant party is the one receiving benefit from easement

Accommodates the dominant tenement

- The land benefits from the easement not the owner

-Forms the subject matter of a grant (creates boundaries)

-Released only by express agreement and if dominant tenement releases

Restrictive covenants

1. Negative in nature

2. Run with the land

3. Bind on the parties

- covenantee(lender) and covenanter (borrower)

Building Schemes

a group of restrictive covenants to maintain UNIFORMITY

- Parties receive there title through same vendor and purchasers may sell to others without affecting the building scheme

- Restrictions apply equally to all lots and have to be consistent with the general building scheme of development

- The benefit of restrictions should bind each individual lot

What are the 2 types of CO-ownership of land

1. Joint tenancy

2. Tenants in Common

Joint tenancy

Has to be specified

Unity of : 1. time - interest must be received at the same time

2. Title- Must obtain their interest from the same document

3, interest - have the same interest in land

4. Possession - undivided interest of the property

Right of survivorship- cannot be put in will , but can sell it

(1 shareholder dies other receives all the property )

Tenants in common

shared ownership of a single property among two or more persons; interests need not be equal and no right of survivorship exists

- can be put in will

-owenership/ interest paid/ time does not have to be the same

- Only Unity of Possession (undivided interest of the property)

-No right to survivorship

Common law doctrine system includes

Purchaser responsible to discover all interest affecting the property

- in Ontario areas

- Land title act as abolished this system

-Conflicts with the Torrens system

- No basis with the BC Torrens system

-DEEDS

-VOID DEEDS

DEED

the official document transferring ownership from seller to buyer

void deed

A deed that is unenforceable and conveys no interest in real estate.

- has no legal affect

-cannot transfer any title in land

Deed is Void if ?

1. Its forged

2. Illegal

3. Non Est factum (not aware of contract signed)

Under common Law Land is protected for ____ years ?

20

- Can claim property back if deed is void

-Rightful owner can recover property back

Torrens System of Land Registration

- legal system used register land

- verifies ownership and encumbrances without having to search public records

- provides evidence (proof) of title

- government guarantees validity of owner

What are the 3 torrens that need to be carried out to be protected by the torrens system ?

1. Good fait purchaser (Bonafide purchaser)

2. Paid fair market value for the property

3. Registered title in land title office

Indefeasibility principle

-Guarantees a fee simple purchaser

-in Good Faith

- Not required to investigate how the owner got his title and is protected by our land title system

- Indefeasibility does not extend to charges

*Only Title is guaranteed under this Act not charges

-only exception to principle is if lease of 3 years or less where tenant is in occupation

- Registered owner might lose interest in property under this principle

Effect of registration

Title to land is not passed until its registered

-Delivery of deed only passes right to apply for registration

Abolition of notice

A purchaser only need to be concerned about interest contained on register

*Does not protect purchaser participating in Fraud

Assurance Principle is

Intended to compensate parties who :

1. Lost Interest in Land

2. As a result of principle infeasibility (if land title has not been passed )

3. cannot recover via co- action

What are the exceptions to the infeasibility principle ?

1. reservation in crown grants

2. Taxes (unpaid taxes )

3. Lease where tenant has lived 3 years or less

4. fee simple obtained by fraud

4. Public right of way in favour of BC hydro and power authority

5. Municipal charges

6. Highways and easements

7. Expropriation(action by state that takes away property of owner for public benefit )

8.Escheats (owner diving without legal heir)

9. Caveats or Builders leans

10. Incorrect Boundaries `

Caveat

Notice placed on title to freeze it

-Lapses in 2 months

- Anyone can place caveat (but must have interest in property)

- Cannot sell property under caveat

- Allows time to determine rightful owner of property or if land was illegally obtained

What are the documents required to transfer title from buyer to seller

1. Freehold Transfer

2. Property transfer tax

What are charges ?

Interests that are less then fee simple

-Mortgages

-Easements/Restrictive covenants

-Building schemes

-Caveat

-Builders lien

-Duplicate certificate of title

-Pending Litigation (court action on the property , will hinder the sale)

The form of documents

Any from sufficient enough to pass or create an estate /interest in land is registrable

Manufactured Homes

A dwelling completely assembled at a factory and transported to the site

-Proof of registration are DECALS

-2 decals issued and valid for lifetime of the home

-has NO TITLE ( no indefeasibility and assurance fund)

- Not allowed to move home unless its been registered in Manufactured home registry and transport permit has been received

-Before transport all taxed on home must be paid

Agents can be sued for _------?

Negligence

1. Duty of care (can anticipate what was gonna happen)

2. Breach the standard care (breach of duty of care)

3. Reasonable result (reasonable foreseeable damages

Negligence involves ___?

a failure by a person to exercise a duty of care in circumstances which require that person to take care in the course of business

before a person is held responsible for negligence a criteria must be met :

- don't verify listing agreement

-do not do a title search

-fails to disclose all material facts

- Don't recommend inserting clauses into an offer

Fiduciary Duty

Utmost duty of care

- Relationship is confidential

- full disclosure

- duty of utmost good faith

-Advantageous price

Negligent Misrepresentation (careless)

1. Negligently made but reasonable

2. No need for contractual relationship

3. Reasonable reliance upon advice

4. doesn't need to know that statement was false but knows advice was relied upon

5. Damage must result from the reliance

fradulent misrepresentation(Deceit, deceiving someone)

Moral fraud

Does not need to be an expert to be liable

can be used under tort and private law

Realtor must

Identify that their are a realtor

- Refuse to give advice pr cleary state " do not rely upon my advice"

Licensee must be able to ___ legally enforceable _____ with no ___?

1. Draft

2.documents

3. errors

Vicarious Liability includes

1. Employee does wrongful act at work ( can be sued by employee or eemployer

2. Employee commits wrongful act outside work cannot sue his employer

3. Employee has issue outside work due to mechanical issue

What can the RE council amnd RE board do to a licensee if negligence is found?

Re Council : can cancel license

-Discipline the licensee

RE board can :

-May expel the licensee from the board

- Make you pay for the court hearing

- Can prevent access to MLS

tresspass

1. Wrongful ENTRY - voluntary action/ enters without permission

2. Wrongful remaining - remains after right to remain ended

3. Wrongful placing - causing by object to be wrongfully placed

indirect action is not trespass

-Actionable "per se" no evidence of damages is required

Remedies to trespass include ?

1. Self-help

2. Injunction

3. Damages

Nuisance

Interferes with the use and enjoyment of the property or causes physical damages

What are the remedies to private Nusance?

1. Abatement - peaceable prevention

2. Injunction

3.Damages(receive replacement cost only )

Nuisance can be defended

Nuisance is unavoidable result

damage is trifling

Under statute law the Occupiers liability acts includes

1. Children - Highest duty of care to child , because they are unable to see danger

Invitee - Occupier has an economic interest

Licensee - No economic interest ( friends.guest)

Trespoasser - lesser duty of care but harm cannot be done

Occupiers liability act under common law

-occupier owes a reasonable standard of care

- Does not extend to risk willingly assumed by visitor at his/her own risk

Duty of care apples to : 1. condition of the premises

2. activities on the premises

3. Conduct of third parties on the premises

Lease creates

-Estate(interest) in land

-releationship between landlord and tenant

-Provides exclusive possession to tenant

license in real estate

is a contractual PRIVILEGE

-No relationship between landlord and tenant

-Cannotr rely on tenancy act

- commercial buildings

Tenancy Termination by landlord

- Non payment of rent (10 days notice )

- For cause : security deposit not given

- unreasonable authority regarding zoning

-Late rent payment

land use property : chapter 6 (refer)

Starta Plan

Designates which parts are starts lots and which are common property

Strata

Condominium

- fee simple

- disclosure statement

-easier to sell

- filed in land title office

Cooperative

owned by corporation

-No fee simple

- cannot sell their interest

-hard to obtain financing

Management contract

practice by which one company supplies another with managerial expertise for a specific period of time

- can hire for day to day responsibilities

- need 2 months notice to cancel contract

- management company only takes instructions from council

common property

common property = owners own it collectively Not owned by strata corporation

-Any property not identified as strata lot

- strata corporation can exercise exclusive control over it

Property taxes in strata ?

Each strata owner must pay there own property taxes and share of common property

strata does not have ___ RIGHTS

airspace

Strata Corporation

Collectively the group of owners as one entity , only after strata plan has been deposited at the land title office

- Fictional person/personally liable / can be sued or sue

How is strata corporation created ?

Developer registers with land title office and creates Strata corp.

Unit Entitlement

The figure used to calculate a strata lot owners contribution to the common expenses

Purchasers interests

Fee simple in strata lot and tenant in common in common property

- coowenershipo undivided

Duties od starta corporation

1. Duty to manage

2. Repair and maintain

3. Insure common assets - no set amount

4. keep record( minutes/budget/financial statements)

5. duty to establish contingency fund and operating fund

Strata can ?

1. Enforce bylaws and rules

2. register lien for unpaid strata fees (not for fines )

3. Remove owners right to use some common property

What are the 2 types of funds

1. Operating funds

- Common expenses (1 or more times per years)

-Interim Budget

2. Contingency Fund

- Less than once a year

-is the key to good management