NCA Property Law 2 — Questions and Answers
Question 1: What is the fundamental distinguishing feature between joint tenancy and tenancy in common?
- Joint tenancy allows unequal shares; tenancy in common requires equal shares
- Joint tenancy includes the right of survivorship; tenancy in common does not (Correct answer)
- Joint tenancy can only be created between spouses; tenancy in common is available to all
- Joint tenancy requires court approval; tenancy in common arises automatically
Correct answer: Joint tenancy includes the right of survivorship; tenancy in common does not
The defining feature of joint tenancy is the right of survivorship, whereby a deceased joint tenant's interest passes automatically to the surviving joint tenants rather than through the deceased's estate.
Question 2: What are the four unities required to create a valid joint tenancy at common law?
- Title, time, interest, and intention
- Possession, interest, title, and time (Correct answer)
- Capacity, intention, writing, and registration
- Possession, purpose, title, and terms
Correct answer: Possession, interest, title, and time
Joint tenancy requires unity of possession, interest, title, and time — all co-owners must hold identical interests, acquired simultaneously under the same instrument.
Question 3: How may a joint tenant unilaterally sever a joint tenancy under Canadian common law?
- By making a will leaving their share to a third party
- By transferring their interest to a third party or, in some provinces, to themselves (Correct answer)
- By giving written notice of severance to all co-tenants
- Only by obtaining a court order for partition
Correct answer: By transferring their interest to a third party or, in some provinces, to themselves
A joint tenancy is severed when one joint tenant alienates their interest to a third party (or in some jurisdictions to themselves), destroying the unity of title and converting that share into a tenancy in common.
Question 4: What is a 'restrictive covenant' in Canadian property law?
- A personal contractual promise not to compete in business
- A promise restricting land use that binds successors in title when properly constituted (Correct answer)
- A lender's covenant in a mortgage requiring timely payments
- A municipal bylaw restricting residential development
Correct answer: A promise restricting land use that binds successors in title when properly constituted
A restrictive covenant is a promise by a landowner to restrict the use of their land that, if properly created at equity, runs with the land and binds future owners of the burdened parcel.
Question 5: Under the equitable rules derived from Tulk v Moxhay, which of the following is NOT a requirement for a restrictive covenant to run with the burdened land?
- The covenant must be negative (restrictive) in nature
- The covenant must touch and concern the burdened land
- The covenantee must retain land that is benefited by the covenant
- The covenant must be registered in the local land titles office (Correct answer)
Correct answer: The covenant must be registered in the local land titles office
Registration is a requirement under provincial land titles statutes to bind subsequent purchasers for value, but it is not one of the four Tulk v Moxhay equitable requirements for the covenant to run with the land.
Question 6: What is a 'profit à prendre' in Canadian property law?
- A right to share in the profits of a commercial enterprise on neighbouring land
- The right to enter another's land and extract a natural resource such as timber, minerals, or game (Correct answer)
- A mortgagee's right to take possession of property upon default
- A co-owner's right to receive rental income from jointly held property
Correct answer: The right to enter another's land and extract a natural resource such as timber, minerals, or game
A profit à prendre is a proprietary right to enter the servient land and sever and take some natural product from it, such as timber, fish, peat, or minerals.
Question 7: Under the Torrens indefeasibility principle, which statement best describes the protection afforded to a registered owner?
- It bars the Crown from expropriating registered land without consent
- It protects a bona fide purchaser's registered title against most prior unregistered interests (Correct answer)
- It makes all land sales final and immune from rescission for any reason
- It completely eliminates adverse possession claims against registered land
Correct answer: It protects a bona fide purchaser's registered title against most prior unregistered interests
Indefeasibility means that a bona fide purchaser who registers their interest takes title free from most prior competing unregistered interests, subject to statutory exceptions such as fraud and overriding interests.
NCA Property Law 2
What is the fundamental distinguishing feature between joint tenancy and tenancy in common?