Week 10 Intellectual Property, Real Estate, Landlord and Tenant, Mortgages Ch 20,21,22,23

Case Study- Adverse possession/ prescriptive rights

"for decades" suggests this BEFORE the abolishment of prescription/adverse possession (honor grandfather principle), stating that regardless of owners rights on land, must still allow Timson to walk through gate out of habitual patterns ("rights move with land" NOT current owner of land if restricted convenience) -easement: -right of way (can be signed by grant, or a party can acquire easement by use/prescription) 4 criteria for prescription: Continues exercise of right of way for a period of 20 yrs (10 yrs for prescription) Open Without fraud/force Without permission of owner "for decades" (a decade is 10 yrs, so decade(S) plural= 20 yrs satisfied) "each winter, ski SEVERAL times a week", regularity, but does this satisfy continuous use "has openly entered lands" satisfies open condition No indication of fraud here Unilateral taking of land, but no indication of consent or permission given Some considerations:*right of way DOES not have to be just crossing through property (established/defined pathway) *recreational use (not functional utilitarian use), pathway doesn't seem clear *continuous use? Cannot determine since snow is not always present on pathway

Commercial Leases

(not residential leasing or Residential leasing Act) Term tendency (length/duration set out in leasing agreement) -Leasehold interest created when landlord (lessor) grants to a tenant (the lessee) exclusive possession for a term -Right to possession reverts back to landlord at end of term -Can be for a fixed term or a periodic tenancy (renews automatically on last day for further term for same length); ex. month-to-month tenancy renews every month -most commercial leases are for FIXED term (rental term) -some leases were EXPIRED or never established leased term, can be PERIODIC (month to month basis, with diff terms) *dif btwn FIXED term and PERIODIC TENDENCY

Fixtures

*EXCEPTION to leasehold improvements: Trade to lease improvements scale (fixtures are in the MIDDLE of spectrum) Fixtures: may not be removed by tenant (subject to terms of lease) Must look to: -whether affixed with intention of it being permanent? -DEGREE of affixation (chattels vs a fixture) -tenants can take chattels and trade fixtures (for purpose of business) with them -TRUE fixtures are LEASE improvements and belong to landlord -what is fixture's use -how secure and permanent is it? -how much damage will it cause to remove? But even if a fixture, TENANT may REMOVE if it is a TRADE fixture. TRADE fixture: -object attached to premises for purposes of CARRYING ON a trade or BUSINESS Consider PARTICULAR business being carried out by tenant Ex. Dentist installed operatory chairs, bolted chairs to floor=trade fixture, specific to the TRADE of business being a dentist) Ex. Cranes installed for construction Ex. Paint booth fixture for autobody shape -CAN be REMOVED at the end of lease by tenant, provided they provide any repairs needed by removal of those fixtures

Landlord Remedies Emcan Bakery Equipment & Supply v. DMI Property Management (2010) Case

-Damages (no duty to mitigate if landlord does not repossess the premises; if landlord terminates lease, landlord must mitigate) Mitigate: -Duty to RE LEASE premise to someone else -If re leased and new tenant makes $3 from original $5, can only sue original tenant for $2 ONLY if landlord TERMINATES lease -Sue for damages (breaching agreement, if lease is for 10 yrs and tenant leaves after 2 years, then suffering damages of 8 yrs rent, if default on rent) -Right of re-entry (eviction) -Distress - landlord's right to DISTRAIN; landlord's right to SEIZE ASSETS of tenant at premises, and sell them to apply to arrears of rent; but cannot claim any greater interest in the goods than tenant; Emcan Bakery Equipment & Supply v. DMI Property Management (2010): -bakery supplied tenant with bakery equipment (sold under conditional sales contract) -bakery RETAINED title and OWNERSHIP of bakery equip UNTIL FULLY PAID for -bc tenant did NOT pay full amnt, equip still owned by bakery -landlord was owed rent by tenant (seized all goods) -dispute btwn landlord and Emcan Bakery as to who had ownership of goods until conditional sales contract, landlord could NOT distrain goods -but landlord could NOT have any claim GREATER than the tenants for goods -Landlord cannot evict AND distrain; must choose one: -if locks and everything is changed, landlord CANNOT distrain -cannot TAKE TENANTS goods and sell to make up arrears payments AND seize the building Injunction (restraining order): -In the event that tenant is in BREACH of lease Ex. Prohibited use of land under terms of lease, In that case landlord can bring action of injunction to RESTRAIN tenant from further use of land -Bankruptcy of tenant - landlord has priority over unsecured creditors of tenant for 3 months rent arrears (est. under BIA)

Intellectual Property; -Def -Types of Intellectual Property (4)

-INTANGIBLE personal property *(not TANGIBLE PPE or TANGIBLE personal property) -Federal jurisdiction (under the division of powers) -Deals with ORIGINAL works or inventions -Each type has OWN set of rules and statutes governed by the Canadian Intellectual Property Office (CIPO) - a federal agency *Some types of intellectual property fall into MORE THAN ONE category Types of Intellectual Property: 1. Trademarks 2. Copyright 3. Patents 4. Industrial Designs

Title Insurance

-Insurance policy that COMPENSATES policy holder for defects in title -Covers title in the land, lack of access to property, defects/liens or other interests, off-title risks (zoning and work orders, survey related matters, identity theft) now can rely on electronic land title system; search no outstanding prop tax, or judgements, no building deficiencies that was ordered to be rectified), number of "off title searches" as well as "title searches" -can be very expensive from admin fees -Ex. Potential fluid areas are subject to higher fees, letter from conservation authority search is alone $200 Title insurance companies 4 in Ontario Canada: policy protects buyer from any defects of title involving zoning, conservation and defects issue that could not be discovered in normal searching -will compensate for deficiencies -COST A LOT LESS To obtain title insurance RATHER than doing entire off title searching (still required to do title search) would cost around $300 -Identify theft (REAL ESTATE FRAUD include Identify theft) is protected under title insurance too; Ex. Teenage mother and daughter of Italian descent went to Italy to visit relatives, when they returned called her husband, no answer she was forced to take home taxi, when she got home a strange man and daughter were there -turns out husband had an affair with another woman and they IMPERSONATED her and the daughter and SOLD property -*bc of TITLE INSURANCE the wife was ensured from her husbands fraud attempt

Requirements of Registration Co'nd; -Mattel, Inc. v 3894207 Canada Inc. (2006) (Barbie case)

-Intell prop is a SPECIALIZED type of law, skill involved to register trademarks & patents -Trademark agents -Registration creates PRESUMPTION of ownership; person must already own tm at TIME of REGISTRATION -automatic ownership of trademark, check patent search databases -Application, publication in Trade-Marks Journal, 2 month opposition period (trademark agent registered looks at these) *MUST BE REGISTERED TRADEMARK LAWYER (practices exclusively in intell prop) Impose on basis for name: Name not distinctive enough Trying to argue a name that does not belong to party (not entitled to, someone else has title to name) -Mattel, Inc. v 3894207 Canada Inc. (2006-2007) (Barbie case): -using name "Barbie" small chain Montreal restaurant, filed application to use name -Mattel used Barbie (1992) who manufactures Barbie doll -went to SCC "small chain of Montreal restaurants would NOT likely create confusion in mkt place with appellant's name Barbie, these p/s associated with dolls was NOT likely to be confused with restaurants p/s" , Canada Inc was allowed to use name -unlike tort of passing off, actions for infringement (under registered trademark) can be infringed by ANY use of mark (defendant doesn't have to have attempted to pass off trademark name)

Requirements of Registration

-Must NOT include NAME of living person or someone who died in last 30 years (but use own name) -Must NOT be DECEPTIVE -Must not include name of COMPONENT goods or services -Must not likely be CONFUSED with another registered trademark -Must not suggest ASSOCIATION with royalty, government etc. -Must not be OBSCENE -Must not be associated with a particular GEOGRAPHIC location (*could have EXCEPTION for; ex. Parmesan cheese, chardonnay wine, Black Forest ham); GOVMNT controls and dictates availability and use of names associated with particular geographical locations (food, wine agriculture) -Other

Copyright Protection Moreau v. St. Vincent (1950 Case)

-No copyright in just an idea or thought; must be expressed in a MATERIAL form; Moreau v. St. Vincent (1950) Case: -in 1950 Owner claimed rights over contest system gambling system -fill out questionnaire based on winter sports -picked greatest # of winners for various sporting events -employee left employer and used SAME IDEA/ 3 elements of contest, but DIFF then sports -but judge found it was just an idea/description NOT the actual material form Copyright Protection: -Copyright automatic on creation of work -Registration optional, but provides advantages (presumption of copyright and author/creator) *THE ACT IS TECHNOLOGICALLY NEUTRAL (reproduction of any form, by someone who is NOT entitled to the work whether it be In print, electronic etc. is SUBJECT TO SAME PROTECTION Ex. If you can reproduce in Newspaper, can also use in internet article etc. license applies to ANY FORM of medium -Duration of registration - during lifetime of author plus 50 years after death (but legislation prescribes different terms for different works) -If work created by employee during course of employment, copyright belongs to employer Remedies for infringement: -Damages for lost profit/income -Accounting of profits (normally alternative to damages) -Injunction Criminal offences for bootlegging/pirating (fines and imprisonment)

Under legislation; Abuse of Patent Rights

-Not meeting DEMAND for patented product -rewarded for invention, but also an OBLIGATION to help society (MUST MEET DEMAND for product/invention, or patent office can claim remedy of revoking patent right, or license at a fair mkt value, and make attempt to price fairly to meet demand of product) -cant just "sit" on patent -Refusing to grant licences: Therefore HINDERING NEW INDUSTRIES (after period of time of protection of invention/ exclusive right for 20 yrs, for benefit of society MUST MEET DEMAND of patent and REQUIRED to sell license to other parties to reproduce, will receive royalties but MUST ALLOW others to use idea) -No common law cause of action for abuse of patent rights; but the AG or other interested persons can apply to Commissioner of Patents to re-examine patent COMPULSORY licensing: -patentee must sell or licence patent; patentee may be ordered to grant licence for fair return but FORCED to do so, in order to meet demand

Registered Trademarks

-Not required, but better to register; remedies ARE NOT AS STRONG (added protection, 3rd action of INFRINGEMENT), but still ENTITLED to tort of passing off and S.7 of Trade marks Act still applicable -Registered marks may, but are not required to, use TM or R circled -Provides EXCLUSIVE right to use -Complete defence to passing off action -Applies to all of Canada (and beyond with further foreign application) *Fact that you are REGISTERED, AUTOMATICALLY gives you defense/ RIGHT to the prior name -Valid for 10 years; may be renewed

3rd Type of Intell Prop; Patents Beecham Canada Ltd. v. Proctor & Gamble Co (1982)

-Solely based on statute -Only exists after grant from government body; Distinction/diff from copyright and Trademark: patent's MUST BE REGISTERED (doesn't exist without registration or have any rights for your protection), whoever FILES patent has FIRST rights -Gives holder of patent exclusive right of using invention and selling it to others for 20 year period (creativity protection vs. benefits of society) Invention - "any new and useful art, process, machine, manufacture or composition of matter, or any new and useful improvement in any art, process, machine, manufacture or composition of matter" of the patent (*useful to society) -Competing patents - patent goes to "first -to-file" -Requires element of ingenuity (more than an obvious step) Beecham Canada Ltd. v. Proctor & Gamble Co (1982) Case: -proctor & gamble held patent for dryer sheet to stop static of clothes -Beecham created a matrix to improve fabric softening effect, improving Proctor idea -1964 "the q to be answered is whether at the date of invention of 1964, an unimaginative skilled technician in light of their general knowledge and literature and information available of the subject at the time of date would be led directly without difficulty to the invention." Did require more ingenuity to led to next step, as a result court ruled in favour of Proctor and Gamble -Patent applications usually made by patent agents, to the patent office (branch of Canadian Intellectual Property Office); Patent agents file claims ON BEHALF of patent applicants, HIGHLY SPECIALIZED (ex. If filing for BioChem idea, MUST have a background in biochem to understand terms properly) -patent application MUST CONTAIN all specializations needed for FUTURE USE (reward creator/inventor with rights for 20 years, but MUST BE OF BENEFIT for society and after 20 yrs of protection must be willing to allow others to use idea and REPRODUCED (all specializations; drawings etc. must be set out in original application, this is why patent agent must have some TECHNICAL experience with the ideas of patent) -Patent officer appointed to review application, search of existing ; patent application then published -Patent officer ensures complete disclosure of all specifications so that it can be used by others once patent expires Remedies for unauthorized use: -Damages (can be based on reasonable royalty fee) -Accounting of profits -injunction

Claims/Interests NOT registered on title; But form Exceptions to general rule (not being registered and still having rights)

-Still affect owner's title even though not registered Adverse Possession (abolished but grandfathered) - surveys reveal small encroachments -use SURVEY to prove this (up to date building survey) -Real Property Tax ARREARS: Unpaid taxes before closing, buyer ASSUMES obligations to pay property taxes of past yrs (taxes in ARREARS), lawyers must search BEFORE client buys land that there are no outstanding taxes that they would have to assume -Writs of Executions - claims of judgement creditors, spousal claims; Buyer needs to make sure when purchasing real estate that debtor has NO judgements against them, OTHERWISE buyer would assume and be liable to PAY judgement (property in subject to lien of judgement holder) -Tenant in Possession; Tenants still have interest of property, on closing buyer makes sure they have vacant possession of property Ex. Property fronts on Younge Street, fences and buildings on property lines -if one was to buy property can determine if any of neighbours property is ENCROACHING on property, need to assess any neighbouring objects on property to ensure that getting proper 1000m for example of land

Registration of Interests in Land

-all registrations involving land interests is done THROUGH REGISTRATIONS of land system/office -Land Registry Office for Province of Ontario <= ex. Of book held at Registry's office, recorded by hand with description of land, owner, interest of property Public Registration System (Provincial) *PRIORITY of Registration - TIMING of registration DET PRIORITY of interests (First in time) Registry System: -CHAIN of TITLE (series of grants over title search period leading to current owner); 40 yr search; no certification Land Titles System - land titles office certifies records as being correct Electronic Registration System *if NOT registered (timing of registration DETERMINES priority of registration), then transfer/conveyance is INVALID Ex. If party A sells to party B then date is registered and Party A CANNOT sell to Party C (invalid) Ex. In terms of Mortgage who ever is registered is FIRST, among creditors gains access to mortgage $ amnt (HAVE FIRST RIGHTS TO TAKE PROPERTY if mortgage amnt not paid) Ex. Registry system that shows: Chain of transferees historically recorded in registers books Crown grant to Party A=>Party A conveys rights to Party B.... (historically lawyers would have to sift through book and look at every deed's validity to make sure every conveyance is done properly through chain) Now switched from Registry system to Land Tittles System (automated, all computerized/electronic) can rely on what is titled on system now) -enter deed in abstract (old fashioned way) -now electronic registration system, using passwords for each lawyer and all documents to register are DONE SO ONLINE/electronically

Case Study- Breach of term of Quiet Enjoyment by Landlord

-yes remedies for cause of action/principle of non quiet enjoyment of property (nuisances and loud noises, disturbances) nor can the landlord allow OTHER tenants to infringe on quiet enjoyment -art gallery should be quiet places when exhibiting art -this is the BASIS for remedies -implied covenant of quiet enjoyment (in lease or common law implied) -remedy defined: would be seeking injunction (Turner can bring court application asking for injunction), damages (if sales have dropped, clients are complaining resulting from breach of landlord for quiet enjoyment), termination of the lease (tenant would have to argue the breach is impacting ENTIRE use of premise, NOT PART of premise) =>"music was clearly heard and interferes with normal conversation in art gallery" this is up for interpretation; since Turner is not just storing goods but running active gallery this is fundamental to business (subjective test)

Termination (Or a lease comes to an end); 5 Ways

1. Surrender; (on expiration of term) Ex. Lease for 5 years, and at the end of 5th year, then tenant gives back to landlord 2. Forfeiture: (tenant default resulting in landlord's remedy to impose forfeiture of lease) 3. By Notice To Quit: (for PERIODIC tenancies) - notice required is one clear period of tenancy (ex. month-to-month tenancy requires 1 month notice; notice must be given on or before last day of tenancy period) 4. By Notice To Quit: (for tenancies for FIXED term where tenant REMAINS in POSSESSION after expiry of term) - periodic tenancy arises on same term as original lease, but to a maximum of one year Ex. If tenant was still there after 5 yrs (lease term) then landlord can terminate tenant 5. Parties can set own notice terms in lease; If both parties agree to include term

Transferring Interests in Land (4 ways)

4 ways to transfer interests of land: 1. Sale or gift -by registering Transfer/Deed of Land 2. On death of owner (not if owned by a corporation) 3. Compulsory sale (by judgement creditor or secured creditor) 4. Adverse Possession/ Prescriptive Rights: (exclusive possession without owner's consent for at least 10 years - now abolished but grandfathered) "adverse" => CONTRARY to land owners rights -THIS HAS NOW BEEN ABOLISHED for the future, HOWEVER if adverse possession was established BEFORE LAW CHANGED ex. 25 yrs ago, continue to use from adverse possession, gotten 10 yrs out of it BEFORE law changed rely on adverse possession, but if AFTER law passed can NO longer rely on adverse claim

Actions for Infringement Eye Masters Ltd v. Ross King Holdings Ltd Case Remedies

Actions for Infringement • Unauthorized use (includes comparative advertising; Eye Masters Ltd v. Ross King Holdings Ltd (1992)): -Eye Masters and Ross King both involved in retail sale of prescription glasses and related optical eye products -Ross King advertised lens IN COMPARISON with Eye Masters products and prices (split screen ad COMPARATIVE ADVERTISING; using competitors NAME to advertise YOUR product, NO public confusion, but Eye Master's trademarked name and stopped Ross King from using their name in their advertising) Based on Passing Off Tort, S.7 of trademark act, basis of infringement; Remedies include; - damages (resulting from injury to goodwill), Injury with REPUTATION of business name (considered a company ASSET) - accounting of profits - injunction; (preventing infringing party from CONTINUING to use name, order PUBLISHED materials with name is destroyed/seized) - search and seize offending materials -Trademarks may be assigned and licensed (e.g. franchising)

Real Estate; Basic Terms

Estate means INTEREST -"Real estate": Interest in property -Life estate: Interest in life -Lease hold estate: Interest in leasing of land (tennant & landlord) 2 types of property; 1. personal property: (inclu INTANGIBLE property; intell prop) 2. real property; TANGIBLE personal property; includes land (venter of the earth owned; above surface, below and around surface subject to air pollution rights, fluid continuous ownership from below to above and anything ATTACHED to land, forming the real estate, fixtures are part of real estate, affixed in a PERMANENT fashion) Land includes surface, what is below the surface (including natural resources), and to some extent what is above -Land includes all things permanently attached to it (trees, buildings, fences - fixtures) -Law/lawyers does not distinguish b/w land and buildings (all is part of the land or "real estate"); business and accountants do distinguish *treat LAND AND BUILDING AS THE SAME (both real estate) -in acctg TREATED DIFFERENTLY a distinction of land that is NOT depreciated vs. buildings that are DEPRECIATED) Crown Grant - 1st transfer of title from the government to a private owner -Each subsequent owner owns the land minus any rights previously conveyed away Ex. If Crown granted rights for property and surface and SOLD part of rights, only entitled to rights AFTER WHAT WAS ALREADY PREV PAID -Aboriginal land claims challenge Crown's authority to grant land

Case Study -Notice landlord

Facts: -5 yr lease at monthly rent of $1200 -Lease expired -For several months after lease expiry tenant continues to rent and pay rent, accepted by landlord -How much notice must landlord give tenant to obtain vacant possession? Analysis: -since lease expired, becomes periodic tendencies, required to give 1 months notice -Oscar is a OVER HOLDING tenant (had term lease expired, now becomes PERIODIC tenant) -month to month tenant -most leases for a term of multiple years, would state MONTHLY lease payments for each yr for amnt of yrs -the rent is described in YRLY basis before month to month (in practical terms before month to month is PREPAYMENTS) -PRIORITY of mortgage -tendency of lease

Case Study -Freelance writer case

Facts: -Freelance writer writes long article on devastating effects of a tsunami in Asia; published in Global Post newspaper pursuant to agreement -Months later same newspaper publishes extracts of article on its website without author's permission -Author complains (1) did not agree to publication on internet (different technology) and (2) edited article omitted important details and did not represent original work Analysis: *freelance writer (NOT AN EMPLOYEE of newspaper, if she was then her work would BELONG To employer, since she is being PAID/COMPENSATED already to write) -define Copyright Act -define moral rights -ref common law case of Eaton Centre -then tie laws to facts (1) THE ACT IS TECHNOLOGICALLY NEUTRAL (reproduction of any form, by someone who is NOT entitled to the work whether it be In print, electronic etc. is SUBJECT TO SAME PROTECTION ex. If you can reproduce in Newspaper, can also use in internet article etc. license applies to ANY FORM of medium (no cause of action here) (2) Cause of action under "moral rights" infringed from Copyright Act (omission of certain details of work distorted integrity of work), personal to author CANNOT be assigned *NOT every change is a distortion of the original work *similar to Snow v Eaton Centre case

Case Study-The Lexus Case

Facts: -Small Cdn co Lexus Foods Inc. applies to register name Lexus as a trademark for range of canned food products -Opposed by Lexus car manufacturer who argued risk of confusion and applicant was "trying to cash in on the name" Analysis: -this case deals with Trademarks Act:-trademarking name -certain criteria must be met before granting trademark -trademark must NOT be deceptive, not confuse public etc. -these are 2 unrelated industries, there would not be significant confusion -second reference common law: Mattel Barbie Restaurants v. Mattel (Barbie Dolls Company): look at VALID objection, court held there was NO valid objection, bc the chain of restaurants does not infringe upon barbie dolls

Case Study -Dance Studio Case

Facts: -Tenant leases premises for dance studio -Landlord approves leasehold improvements -Building vibrates caused by dance studio -Landlord stops dance classes -Tenant sues for damages (argues it was LATENT; only discovered afterwards) Who bears the loss? -tenant visited premise 4 times and satisfied herself and concluded that the premise was good enough -then dance vibrations were an issue -will her claim succeed? -Caveat Emptor rule (satisfy yourself, she looked at it) Her allegation: she argued that bc the defect in the premise was latent -facts don't support there was a defect in the premise -if there was, then she could rely on it being a latent defect (NOT detectable by a normal inspection) -patent defect is detected by inspection -she fails since WAS no defect -or else landlord had a duty to do maintenance etc. -Legal term: "Waste" are damages to the premise that REDUCES its value (tenant cannot commit "waste"), this would be defined in lease agreement -landlord argues that tenant committed waste, could cause serious damage to people (tenant is BREACHING agreement and this is cause of termination)

Case Study -Bull in China Shop Case

Facts: -Year to year commercial tenancy -Tenant built display cases with glass doors to hold china, secured to wall with 3 cm nails -Tenant also installed heavy duty a/c equipment connected to water supply and bolted to floor -Tenant becomes bankrupt; tenant owes landlord 3 months rent -Trustee claims display cases and a/c for benefit of general creditors -Who is entitled to them? Analysis: -fixture assets (TIED to nature of business), similar to EMC bakery vs. Landlord case tenant installed display cases, tacked nails to wall, connected equip with water line -but tenant has GONE INTO BANKRUPCTY -For the Bank Trustee bankruptcy to be successful, they have to argue that the goods BELONG to tenant (as trade fixtures), if they are leasehold improvements then belongs to landlord and Trustee CANNOT seize goods -display cases are trade fixtures so the trustee can seize goods -but air conditioning is an ASSET than can be seized by landlord *2nd argument: -Chattels: look at DEGREE of affixation (was the intention to be attached PERMANENTLY, how are they attached) ex. 3 cm nails is NOT enough/ sufficient enough to be turned into a fixture and nails are still chattels (argument of if its SO specific enough that it is a trade fixture) -establish legal principles: define chattel, trade fixture, fixture -apply case law -tie facts to case (what is considered a chattel, trade fixture, fixture etc.)

Types of Real Estate Interests; -Fee Simple -Life Estate -Leasehold Estate -Easements (Adverse possession/prescrip right) -Restrictive Covenants -Mineral Rights, Surface Rights Leases (for access) -Shared Title: Co-Ownership -Rights in Matrimonial Home

Fee Simple: -closest thing to complete ownership; what we typically mean when we say someone "OWNS" a property (purchased) Life Estate: -an interest in land that lasts for the LIFE of one person *-right to use as own property, but USE OF ENJOYMENT LIMITED to their lifetime, given back to holder after passing Leasehold Estate: -an exclusive interest in land for a DEFINITE period of time Easements: -right of one party (3rd party) to ENJOY USE of ANOTHER owner's lands for a SPECIFIC purpose (ex. rights-of-way, shared driveways, utility servicing); may be created by agreement or prescription Ex. Allow construction workers to use 10 meters of land to install hydro line, ALLOWING THEM to use property for a SPECIFIC purpose, but still OWN the land (prepare, maintain, install hydro lines), municipality to repair (cannot argue trespassing for maintenance of utilities, safety of all) Ex. Specific TYPE of easement: Right of way, allowing neighbours to use for a specific use such as a walk way Ex. Adverse possession /prescriptive right: ACQUIRED RIGHT OVER TIME WITHOUT permission of owner allowed to continue a specific behaviour if it is a PATTERN of the past (based on long term use of property) Restrictive Covenants: -require the owner to REFRAIN from certain conduct or uses of the land (ex. vendor restrictions, developer/builder restrictions); *RUN WITH the LAND "run with the land" -once land is registered, who ever inherits/buys property Is ALWAYS subject to these restrictions, bc these restrictions RUN with the property -restrictions tied to LAND NOT OWNER Registered on title of developer -make sure home owners do not have UNSIGHTLY premises to protect reputation of developer and allow them to continue to sell homes -regulate type of fence, landscape, un abandonment of vehicles etc. Mineral Rights, Surface Rights Leases (for access) Shared Title: Co-Ownership: -Tenancy in common vs. Joint Tenancy Tenancy in common: the property transfers to BENEFICIARY stated in WILL (does NOT revert to survivors, but whoever is stated in will) VS. Joint Tenancy; If one partner passes away, the PROPERTY AUTOMATICALLY transfers to SURVIVOR (regardless of what is stipulated in will) Rights in Matrimonial Home: - spousal consent required for any disposition of land (sales and mortgage -If 2 ppl are married, the 2 spouses HAVE AN EQUAL INTEREST OF HOME (even if they are not registered on property), a signature is NOT enough of one spouse, since the other has a matrimonial right if they live there -FAMILY law right

2nd Type of Intell Prop; Copyright Moral Rights (4) Snow v Eaton Cenrre Ltd (1982) "Geese Case"

Governed by Copyright Act (federal legislation) -COLLECTION of rights set out in statute (NO COMMON LAW action for infringement like there is for trademarks); all through legislation associated w/ copyright -Exclusive right to produce, reproduce, publish or perform an original literary, artistic, dramatic or musical work -Protection of writings, drawings, paintings, movies, musical scores, radio and TV broadcasts, computer software, digital copying, internet -Gives power to owner to prevent others from using their works -Must be "original" - independently created, and must display MINIMUM DEGREE of SKILL and judgement (in order to be protected) Copyright arises automatically WITHOUT REGISTRATION -Copyright may be ASSIGNED -someone can SELL copyrights (authors SELL rights of book to a publisher), CAN transfer right to REPRODUCE work, BUT NOT TRANSFER "MORAL RIGHTS" of copyright -Other rights, Moral Rights, are personal to the author/creator and cannot be assigned (but may be waived); Moral Rights include: 1. right to INTEGRITY of the work Ex. If painting is reproduced/ mass produced for prints, art work CANNOT be changed (must print exactly how it appears) 2. right to PREVENT DISTORTION or mutilation 3. right to prevent it from being USED WITH some product, service, cause, or institution 4. right to be ASSOCIATED with work (Publisher CANNOT hide/ not disclose authors name) or to remain anonymous Snow v Eaton Cenrre Ltd (1982) "Geese Case": -artwork of Geese in Eaton Centre -case from moral rights of geese -Micheal Snow was commissioned to do sculpture of Geese, during Christmas red ribbons were placed on the Geese -Snow brought an action saying his work was distorted and judge agreed "his work was distorted, mutilated and the integrity of the work was infringed upon under Copyrights Act", ordered them to take down ribbons -protection of MORAL RIGHTS (integrity of work was distorted)

Remedies of Tenant (3)

If Landlord breaches lease (does not do required repairs, improperly charges expenses unreasonable costs for net lease): 1. Damages; Ex. out of pocket expenses suffered 2. Injunction; Ex. If Landlord breaches covenant for quiet enjoyment (suffering nuisances, smells), tenant can bring injunction to enforce quiet enjoyment covenant (get rid of nuisances) 3. Termination - if entire premises unfit for use: (ONLY IF ENTIRE premise is UNFIT for use, tenant as RIGHT to terminate) -if only PART of premise is unfit, a small thing then tenant must continue to use and sue for damages (CANNOT terminate lease)

Industrial Designs; -Industrial Design Act -Overlap in types of IP -Protecting IP- Good or Bad?

Industrial Design Act; -Applies to designs placed on an article (e.g. decorative design on wall paper or dinner plates, crest on a shirt) -Must be PURELY ORNAMENTAL, not utilitarian or functional -Requires some degree of originality -Registration for 10 years -Protection SOLELY DEPENDENT on REGISTRATION (unlike copyright) -Application must be made within 1 yr of first use -Protection requires NOTICE - each article must contain "Registered" or "Rd", year of registration, and owner name -May be assigned but ASSIGNMENT must be RECORDED Overlap in types of IP: -LOGO can be both a trademark and an industrial design -Ornamental shape of a container or wrapper may be both an industrial design and a distinguishing guise Can register under both Protecting IP - Good or Bad? -Encouraging creativity, rewarding ingenuity (creator rights) vs. higher prices/ monopoly (user rights=PATENT ABUSE) -Ethical issue - reasonable access to medicine (e.g. 5M Africans with AIDS; fewer than 100K receiving treatment; patented drugs cost b/w $8K- $15K per person; generic drugs could cost only few hundred dollars) *KEY REASON they are NOT receiving treatment is SOLELY on price set by creator/patent holders -protection for patent holders are contributing to the DETRIMENT of the public

Chapter 21 Interests in Land and Their Transfer Defs

Land: comprises the surface, all that is under the surface, including the minerals and oil, and most everything above and attached to the surface, including buildings and trees Fixtures: all things permanently attached to land are deemed part of the land Property: (1) everything that is the subject of ownership or (2) the legal interest in a thing Title: holding ownership of a thing real action: an action to repossess an interest in land that had been interfered with estates in time: the right to exclusive possession of the land for a period of time Treaties: sacred agreements between the Crown and Indigenous peoples with a solemn, special, public nature that rank above personal contracts but below international treaties Crown grant: the first transfer of an estate in time from the government to a new owner interests less than estates: interests in land that do not give the right to exclusive possession sui generis: a unique collective right stemming from Indigenous peoples' prior occupation and connection with the land specific land claims: claims involving treaty or reserve lands comprehensive land claims: claims involving land not covered by treaty nor part of a reserve freehold estate: an interest in land that is indeterminate in time fee simple: the interest in land closest to complete ownership life estate: an estate in land that lasts for the life of one person life tenant: a holder of a life estate Reversion: the balance of a fee simple reserved to the grantor and her heirs at the end of a life estate Remainder: the balance of a fee simple that goes to a third person at the end of a life estate Remainderman: a person who holds the reversion or remainder in a fee simple Leasehold: an interest in land for a definite period of time tenants in common: concurrent holders of equal undivided shares in an estate joint tenants: concurrent holders, each of whom has a right of survivorship right of survivorship: the right of a surviving tenant to the interest of a deceased joint tenant Probate: the process of administering and settling the estate of a deceased person Severance: a procedure that turns a joint tenancy into a tenancy in common Easement: a right enjoyed by one landowner over the land of another for a special purpose but not for occupation of the land right-of-way: an easement that gives the holder a right to pass back and forth over the land of another in order to get to and from her own land dominant tenement: the piece of land that benefits from an easement servient tenement: the land subject to the easement Licence: a right to use another's land for the benefit of a person Dower: a widow's right to a life interest in one-third of the real property held by her husband in fee simple before his death condominium unit: a unit in a multiple-unit development that is owned in fee simple without surface land common elements: structures and areas external to a condominium unit, including communal facilities condominium corporation: a corporation—whose members are the condominium owners—that is responsible for managing the property as a whole common area expense: unit owner's proportionate share of the costs of operating the corporation and maintaining the common elements reserve fund: money set aside for future major projects and emergencies deed of conveyance: a document under seal that transfers an interest in land from the owner to another party Transfer: under the land titles system, the equivalent of a grant; not required to be made under seal intestate succession: government rules that determine who gets the property of someone who dies without a will Expropriation: a private owner is forced by stature to transfer its land to a government body that needs it extinguish the title: end the title of the owner and the owner's right to regain possession adverse possession/prescriptive rights: the exclusive possession of land by someone who openly uses it like an owner and ignores the claims of other persons, including the owner limitation period: the time period within which a right of action must be pursued or it is lost forever priority of registration: priority of interests in real property is determined based on the order of registration in the public system chain of title: the series of grants over the title search period that can be traced to the current owner (vendor) land titles system: a system of land registration where the land titles office records outstanding interests in the land and certifies them as being correct certificate of title: summary of registered interests in a property, showing the owner and any mortgages, easements, or other interests held by others, which may be relied upon by the public title fraud: fraudulent transfer or mortgaging of land by a non-owner Survey: detailed drawing or map of the real property showing all the boundaries of the land and the location of all fixtures, encroachments, or overhangs title insurance: a policy of insurance that compensates the policy holder for defects in a title

Other Mortgage Concepts

Mortgage commitment Term vs. amortization Assumption of mortgage; remaining liable on the covenant *Open mortgage vs. closed mortgage: Open mortgage: open for PREPAYMENTS and lumpsum amnts (COSTS associated, HIGHER int rates) Closed mortgage: can only pay PRESPECIFIED amnts at CERTAIN TIMES (cannot PREPAY, will suffer significant penalties) The penalty for prepaying ("breaking") a closed mortgage Secured creditor: -priority over general/unsecured creditors - but subject to property tax arrears, prior executions Second and subsequent mortgages: *PRIORITY OF MORTGAGES: Who ever registers mortgage 1st is has 1st rights, then 2nd mortgage 2nd -sales proceeds, if default then 1st mortgage paid first, then 2nd mortgage would suffer Discharge of mortgage (partial discharges) Mortgage Fraud

Mortgages; Mortgage Registration

Mortgage: -a LOAN CONTRACT that gives the LENDER (MORTGAGEE) an INTEREST in the BORROWER'S (MORTGAGER'S) land as SECURITY for a debt -Mortgage document includes SECURITY (retro interest to secure mortgage registered against title of property) + debt Registration: -at the land registry office; public notice -priority determined by order of registration -failure to register results in no security -order of priority: entitled to FIRST registered (1st mortgage has 1st right to property) Ex. Registered on jan and on june, 1st mortgagee is entitled -2nd mortgagee may only be entitled to % (NOT full mortgage amnt) bc of order of priority

Chapter 23 Mortgages of Land and Real Estate Transactions Defs

Mortgage: a loan contract that gives the lender an interest in the borrower's land as security for a debt Mortgagor: a borrower who gives his lender an interest in his land as security for repayment of a debt Mortgagee: a lender who accepts an interest in land as security for a loan maturity date: the end of the term when debt must be repaid calculation period: stages at which accrued interest is added to principal amortization period: length of time it should take to repay an entire debt with the specified payment schedule Term: the time period during which an interest rate is fixed and principal lent mortgage commitment: document in which parties to a mortgage initially agree to borrow and lend acceleration clause: upon default in a payment the entire principal sum accrued interest comes due immediately legal title: an interest in land recognized by the common law Foreclosure: an order by a court ending the mortgagor's right to redeem within a fixed time Charge: a lien or encumbrance on land Chargor: mortgagor Chargee: mortgagee power of sale: a right upon default to sell mortgaged land assumption of the mortgage: a subsequent purchaser takes over the responsibility of paying off the vendor's existing mortgage closed mortgage: a mortgage that does not permit early repayment of the debt without a substantial penalty assumption agreement: a contract between the mortgagee and the new purchaser in which the new purchaser agrees to comply with all the requirements in the original mortgage general creditor: a creditor that has no security other than the debtor's promise to pay secured creditor: a creditor that has collateral security in the form of a recognized claim against specified assets of the debtor open mortgage: a mortgage permitting repayment of the debt at any time without notice or bonus discharge statement: mortgagee's calculation payment necessary to obtain a discharge of the mortgage partial discharge: a discharge of a definite portion of the mortgaged lands reverse mortgage: a form of mortgage under which no repayment is due until the mortgagor sells or dies listing agreement: contract between the vendor and his real estate agent creating the obligation to pay commission Requisitions: questions concerning claims against a seller's title to property caveat emptor: let the buyer beware property condition disclosure statement: written statement of vendor's current actual knowledge of the property's condition latent defect: defect not readily apparent to an ordinary purchaser during an ordinary inspection patent defect: a defect discoverable by a purchaser during an ordinary inspection statement of adjustments: a document setting out all the items—both credits and debits—that must be adjusted between the parties to arrive at the correct amount to be paid on closing

Government Regulation (agencies) of Land

Provincial policy statements: -general principles municipalities must follow "regulate land" for use; -can be used for industrial, restaurant, retail purpose -zoning bylaws regulate SPECIFIC use EACH property, location, size, grading of property -regulates # of parking spaces avail -part of DUE DILLIGENCE is to review permitted uses with lawyer and ensure that your use is allowed under the use of the land laid out in regulations Municipal zoning by-laws, official plans: -use, location and types of buildings Planning Act : -regulates land development Other: -local conservation authorities, Ministry of Environmental Protection Act, Ministry of Natural Resources, CN Railway, heritage designation etc. Condominiums: -Unit in a multi-unit development owned in fee simple without surface land -Ex. Prior use of farm land to developed for subdivision, found finding of Beryllium and uranium in area was EXCEEDING limits avail on agriculture land, this was caused from GLACIERS deposits millions of yrs ago -at the time of the application of land use, stds had increased (lowered acceptable limits at the time of purchase) -Client was able to show that these would not endanger ppl in the future -but potential buyers of land need to be aware of all these environmental concerns -Perm/test of how railway sounds are affecting nearby houses -protect endangered species, make an effort to PROTECT them *a business must make BEST effort to research land before buying/use to ensure they know of their responsibilities of owning land and that their business activities COMPLY with the uses of the land

Rights of Mortgagee (Lender) on Default; -Power of Sale vs Foreclosure

Sue on debt owing Take possession (or put in tenant) - usually not until foreclosure -Sell land under "Power of Sale" or court ordered sale vs. Foreclosure Power sale: mortgagor is in default, send them notice of sale bc of default, give them 35 days to borrow the money/come up with money to pay off mortgage, get 2 or 3 appraisals then sell property and keep only as much proceeds to pay off debt (if any shortfall, can still sue tenant) -dealing with not terribly solvent tenant Foreclosure: remedy where mortgagee can take/seize property from mortgagor, CANNOT sue for deficiency taking property and accepting property in FULL SATISFACTION of debt (take property in ENTIRETY) Remedies of Mortgagor (after it defaults): -Repay loan, interest and mortgagee's expenses -Require an accountant -Challenge sale price/expenses re Power of Sale proceedings -Seek relief from "acceleration clause", by bringing mortgage into good standing -Try to convert foreclosure action into a sale; Power of sale: mortgagee (mortgage holder) sells property owed by debtor, any insufficient proceeds, Mortgagee can still sue debtor for bal owing (any defences owing that is not collected from further sale , mortgagee is STILL ENTITLED to get remaining proceeds from debtor) VS. Foreclosure (has accepted this property under their OWN name, can NO longer try to get discrepancies from debtor -may want to do foreclose if getting more, FAR EXCEEDS than from amnt gained under power of sale suing debtor for deficiencies (choose strategy), Unfair if mortgage holder is getting MUCH more under foreclosure vs power of sale

Typical Lease Terms

Term: -Length of lease (1 yr, 2 yr etc. provides for duration) Renewal options: -Tenants have right to RENEW lease (landlord not required, RIGHT of tenant in first renewal, many prefer shorter leases for the right to UNILATERALLY chose to renew or not if business is not doing well Rent (*net lease vs. gross lease, rent adjustment based on area): Net lease: (PURE PROFIT for landlord) NP=Sales-COGS-expenses: tenant is paying $10 + all utilities (repairs, etc.), operating expenses, property taxes Gross lease: (landlord still has to pay expenses) GP=sales-cogs: tenant paying $ INCLUDING all utilities Additional rent (TMI; method of calculation): TMI: Taxes, Maintenance, Insurance (True net profit) -landlord ONLY pays income tax received BUT NO other expenses (tenant pays the rest) Restrictions on Assignment/ Subletting: -Lease can ONLY be assigned/ subleased if landlord approves, makes sure buyer has collateral, can afford payments -sublease: landlord leases to tenant, tenant SUBLEASES to a 3rd party (tenant is STILL BOUND by premises of original contract) Permitted Uses, Exclusive use, Prohibited use Responsibility for repairs *Quiet enjoyment: Landlord MUST give quiet enjoyment to tenant (without any nuisances, smells etc.), ALLOCATION of liability btwn landlord and tenant (landlord must properly clean sidewalks, tenant still responsible under negligence) Allocation of liability Insurance responsibilities: -Insurance requirements: what insurance does tenant have to maintain vs insurance responsibilities of landlord Use and access to common areas: Landlord restricts certain areas (designated parking area for landlord) Leasehold improvements: -(any improvements made by tenant to unit/premise, must be APPROVED by landlord with drawings and remains AFFIXED and belongs to landlord= GENERAL RULE but exception of FIXTURE) Ownership of leasehold improvements and trade fixtures Parking Signage Option on adjoining space: -Tenants wants FIRST rights to adjoining spaces that may open up after Right to relocate/terminate: Ex. Smaller retail tenants in Shopping malls, if a larger retailer wants to rent space, landlord wants to be able to move smaller retailer to gain space for large retailer -this clause by landlord MUST be negotiated so tenants can be compensated for leasehold improvements, down time and other costs etc. (but for smart centres or Catalic Fairview take it or leave it type deal, usually non negotiable) -tenants want to add clause to TERMINATE lease earlier in beginning negotiations

Chapter 22 Landlord and Tenant Defs

Term: an interest in land for a definite period of time residential tenancies: a lease of premises used as living accommodation commercial tenancies: a lease of premises used for a business or non-residential purpose term certain: a tenancy that expires on a specific day overholding tenant: a tenant who remains on the premises without a new agreement with the landlord after the term of the lease expires periodic tenancy: a leasehold interest that renews itself automatically on the last day of the term for a further term of the same duration month-to-month tenancy: a periodic tenancy that renews itself monthly Trespasser: one who enters without consent or lawful right on the lands of another or who, having entered lawfully, refuses to leave when ordered to do so by the owner Covenant: a term, clause, or promise contained in a contract or lease exclusive use clause: a landlord's promise not to rent adjoining premises to any other entity in the same or competing business as the tenant Waste: damage to the premises that reduces its value covenant of quiet enjoyment: a landlord's promise that nothing will interfere or disturb the tenant's possession and use of the premises additional rent: a tenant's proportionate share of maintenance costs, utilities, and taxes Surrender: abandonment of the premises by the tenant during the term of the lease right of re-entry: a landlord's remedy of evicting the tenant for failure to pay rent or breach of another major covenant Forfeiture: to lose or give back to the landlord the balance of the term of a lease Distress: the right of the landlord to seize assets of the tenant found on the premises and sell them to realize arrears of rent notice to quit: notice of an intention to bring the tenancy to an end trade fixture: an object attached to the premises for the purpose of carrying on a trade or business tenant's fixtures: trade fixtures or any other fixtures attached for the convenience of the tenant or for the better enjoyment of the object privity of estate: the relationship between tenant and landlord created by their respective interests in the land that passes to a transferee of the interest Leaseback: a financial arrangement enabling a business to buy a building and sell it to a financial institution that, in turn, gives a long-term lease of the property back to the business

Protection of Trademarks; -Tort of Passing Off (4 elements) -Section 7 Trademarks Act

Tort of Passing Off: 4 Elements: 1. plaintiff's goods, services or business must have a REPUTATION WORTH PROTECTING (ex. goodwill - positive association that attracts customers) 2. defendant must have MISREPRESENTED its goods, services or business for those of plaintiff *Guilty of TORT "passing off g/s" (mis rep of good, confuse consumers, knock off, reputation infringed on) Ex. Victor's secret instead of Victoria Secret 3. confusion in public's mind 4. plaintiff must SUFFER, or be LIKELY to suffer, damages as a result -May be unintentional *(even if unintentional, but IN FACT still confuses public, still liable under Tort of Passing off) In addition to Passing Off Tort, can also rely on S.7 of Trade-marks Act (second remedy to protect names, can be registered OR NOT) Section 7 Trade-marks Act: -provides additional causes of action; -Prohibits false or misleading statements intended to discredit goods or business of a competitor Action for Infringement: -only applies to registered trademarks (trademarks may be registered or unregistered)

Trademarks; 1. Identifiable Feature 2. Certification Mark 3. Distinguishing Guise 4. Business Names 5. 2019 Amendments

Trade-Marks Act: -All trade marks governed by Trade Marks Act gov legislation Trademark : 1. An identifiable feature or combination of features used for the purpose of DISTINGUISHING their goods or services from OThERS -FEATURE/SYMBOL ITSELF that is KEY (not the words as much) 2. A certification mark: - used to identify goods or services that CONFORM to a PARTICULAR STD, character, or quality (ex. "TRUSTe" mark for internet security) Ex. The word "Realtor" (associated w/ real estate agent, signifies quality/ std) 3. A distinguishing guise: -distinguishing SHAPE of goods or their containers, or distinctive packing Ex. Shape of Coca Cola bottle 4. Business Names: -trademark can be part of the name, but not entire name (e.g. "Ford") -NAME of business is an ASSET (forms goodwill of company), only UNIQUE part of name can be trademarked -generic words cannot be trademarked ("Ford" but not "Motor Company") -slogans can be trademarked (ex. "Harvey's Makes Your Hamburger A Beautiful Thing") -*always check availability of proposed name before using it; (make sure purposed name is NOT already taken, thorough search MUST be taken, check trade office, private searches etc.) -if you select name that is taken or very similar, can be LIABLE for INFRINGEMENT 5. 2019 Amendments: -include protection of smells, holographs, tastes, textures; (more than just printed material should be trademarked)

Chapter 20 -Intellectual Property Defs

Trademark: an identifiable feature or combination of features that is used by a person for the purpose of distinguishing his goods or services from those of others certification mark: a special type of trademark used to identify goods or services that conform to a particular standard distinguishing guise: the configuration of goods or their containers, or a distinctive mode of wrapping or packaging Generic: word or feature that is commonly used and not distinguishing Goodwill: positive association that attracts customers toward the owner's wares or services rather than those of its competitor protected geographical indications: word or feature that connects a wine, spirit, or food product to a geographic location grey marketing: acquiring authentic goods through legal channels, then importing or exporting them for sale in another country without the trademark owner's permission World Intellectual Property Organization: a specialized agency of the United Nations dedicated to harmonizing intellectual property laws and regimes worldwide digital rights management technology (DRMT): a system collecting data about the licensing, payment, use, and authenticity of a work format shifting: transferring purchased material, such as music, from one of the owner's devices to another royalty payments: fees paid for permission to use another person's copyrighted material moral rights: the non-transferable rights of an author or creator to prevent a work from being distorted or misused Fixed: stored in a permanent or lasting form collective rights society: a society to which authors of musical and dramatic works assign performing and communication rights and that grants licenses and collects fees statutory damages: damages a plaintiff may request instead of proving actual loss patent agent: a registered agent who pursues applications for patents on behalf of individual inventors Specification: the description of the invention, its use, operation, or manufacture Claim: a statement of the features claimed to be new and in respect of which the applicant claims an exclusive right action for impeachment: an action challenging the validity of a patent compulsory license: a license granted to a person to work a patent without the consent of the owner of the patent

A Typical Real Estate Transaction

•Preparing property for sale (no concealment) •Listing Agreement (list price, exclusive right to market, commission) •Inspections - duty to disclose latent defects (not patent defects) •Offer to Purchase •Negotiations on terms •Accepted offer to purchase •Satisfying and waiving any conditions •Requisition Date •Buyer's lawyer conducts title and off-title searches; and submits requisitions before requisition date •Document preparation; including statement of adjustments •Meeting with lawyer prior to closing to sign closing documents (and if buyer, deliver closing funds to lawyer) •*Closing •Release of funds to seller, keys and possession to buyer Note - concern re selling and buying same day