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 Vancouver is a beautiful city in the province of British Columbia . It has many parks and tree-lined streets within the downtown area. On the harbor side, there is a long sea wall, which makes a perfect trail for strolling, biking, and roller blades. The aquarium, gardens, and hiking trails are found in Stanley Park on the edge of the sea wall.
This lovely city has a number of new condominium towers being built in the downtown area. There is great demand for the view of the harbor and water locations command a higher price. The city has a diverse ethnic population and restaurants offer varieties of their cuisine.
Because of their long history together, Canada , the United States of America , and England have a similar legal system called English Common law. The French province of Quebec has also been influenced by Roman or French law.
English law evolved during the Middle Ages from the relationship between the king, nobles, and their peasants, or workers. There are similarities and differences between the English law of the United States of America and Canada , and the Roman law of Mexico , Europe, and South America .
"The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics." Oliver Wendell Holmes, Jr. 1841-1935
The concept of a deed is similar in both systems. A deed is a document used to transfer title to property from one person to another. In some jurisdictions, a deed of trust is used as an equivalent to a mortgage.
The concept of chain of title is significant in English-based real estate law. The chain of title traces the ownership of a particular property. A system evolved over time to keep this information in a registry. Title companies issue title insurance in Canada and the USA , based on the chain of title. These title companies draw upon public records as well as private title businesses.
An abstract of title is the condensed history of title to a particular parcel of real estate and consists of a summary of the original grant, all subsequent conveyances and encumbrances affecting the property, as well as a certification by the abstractor that the history is complete an accurate.
In medieval England , copyhold tenure was a term of possession of land, permitted to common folk, according to the custom/law of the manor. "Title deed" means a copy of the record of the manor court. Copyholds were gradually turned into ordinary holdings of land, either freehold or a 999-year leasehold, during the l9th century. Copyhold tenure ended through legislation in the l920's.
The original untitled English population had the use of land through copyhold tenure. Private land for the common man was not an option at this time. Their right to possess the land was proved by written transcript or record in the rolls of the manor home or castle of the aristocracy. Through wars and the evolution of federal laws, private ownership, or freehold, evolved from the copyhold. By the l920's, there was no more copyhold land. Ejido, or Indian communal land use, evolves into private land through a long process in Mexico .
A contract of sale is a legal act that involves an exchange of goods, services or property to be exchanged from the seller (vendor) to the buyer (purchaser) for an agreed upon value in money or equivalent, or the promise to pay. At a point in the selling and buying process, this agreement of sale becomes a legal contract. In English and Mexican law, there are differences in the statutes and codes, which define and regulate the contracts of sale.
Equity is "fairness' or "justness" and is the name given to the area of the legal system which deals with disputes between persons when neither of them has done anything against the law, but here is a conflict between their rights or claims. Equity is different from the "law." The "law" is body of legal principles, which evolved from English common law, or the laws enacted by the governments or the "case law" which evolves from principles set forth in courts' opinions on specific cases. English common law is based on custom, usage. It is different from statute law, which is established by a legislative body. The legislature has no requirement to follow a prior custom. The lawmakers can create a statute or rule.
"Courts of Law" were the courts through England , which enforced the king's laws in medieval times. The "chancery courts" or "courts of equity": evolved from the king's discretionary decisions based on the specific facts of a single case. If the only remedy a court of law can award is monetary, there are situations when the law is not enough. If a plaintiff wanted the return of his cow, which had wandered onto the neighbor's property, a court of equity could order the neighbor to return the cow. The king could make the decision himself as the head of the "court of equity."
In Canada and the U.S.A. today, the federal courts and most state courts have combined both functions of the two original courts of "law" and "equity". Therefore, a plaintiff or petitioner before the court can receive legal and equitable relief in one proceeding. This fusion of the law and equity occurred through legal acts in 1875*. In the USA , it is important to know that a trial by jury is guaranteed. Trials by jury are not guaranteed in a court of equity. Only a judge can dispense equity, as it is a matter of law and not subject to the intervention of the jury. In Mexico , there are no juries and the judge is the decision maker.
The distinction between "legal" and "equitable" relief is an important aspect of the American legal system. The right of a jury trial in civil cases is guaranteed by the 7 th Amendment of the Constitution, but only in cases that traditionally would have been handled by the law courts at Common Law.
The question of whether a case should be determined by a jury depends a great deal on the type of relief, which the plaintiff seeks. If the request is for the return of a specific item of property, the decision comes from common law. If the plaintiff requests an injunction, a judgment, specific performance, the modification of a contract, or any other form of non-monetary relief, his claim is one of equity.
All chancery courts in medieval England could grant relief to a petitioner with injunctions (which are court orders NOT to do something specific, such as tear down a neighbor's fence, and court orders, which can require a person to take some specific action, such as to be required to sign over the deed to a certain parcel of real estate).
The laws of a court of law were often written down by whoever made the law, but decisions based on equity, were not written down. A list of principles evolved as the Maxims of equity. One of the criticisms of equity as it developed was that it had no fixed rules of its own. Each Lord Chancellor, who traditionally administrated the courts of equity on behalf of the King, made a judgment according to his own conscience. "Equity varies with the length of the Chancellor's foot, wrote John Selden, a well-known l7th century jurist.
Other concepts, which evolved in English law, are:
1.- Adverse possession is a means of acquiring title to another's land without being compensated. Adverse possession requires the actual, visible, hostile, notorious, exclusive and continuous possession of the property under a claim of title. This means that those attempting to claim the land are occupying the land exclusively and openly, as if it were their own. Generally, they must do this continuously without a challenge from the lawful owner for a fixed period of time before those in adverse possession acquire title.
This type of possession is sometimes called "squatters' rights." If the squatter leaves the land for a period of time or the rightful owners effectively remove the squatter's access, even temporarily during this time period, the "clock'" usually begins running again. The "squatter" has to obtain adverse possession for a certain period of time again in order to acquire title. In Mexico , the law recognizes "squatters' rights."
2.- Easements are the ways in which others may acquire the right to trespass on land for the purposes of access to other land. The easement must also be done openly, but it need not be exclusive. It is common practice in some cities where builders often leave sidewalk space or plazas in front of their buildings (to meet zoning requirements), to close public areas they own periodically, in order to prevent the creation of a permanent easement and a compromise their property rights.
With the easement as the right of use over the real property of another, it was historically limited to a "right of way" or rights over flowing water. Traditionally, an easement was a right, which could be attached to an adjacent land and was for the benefit of all, not a specific person. This right to use the land of another for a special purpose is distinguished from a "license", which gives a personal privilege to do something on the land.
Easements may be considered public or private. A private easement is limited to a specific individual such as the owner of an adjoining tract of land. A public easement grants the right to a large group of individuals or to the public. A public easement is one that grants a general easement to all, such as on the public streets, or the right of all to navigate a river. Easements over public and private land are used in Mexico, as well.
Easements also include: storm drain or rainwater easements, sanitary sewer easements, electrical power easements, telephone easements, sidewalk easements, driveway easements or easement of access.
3.- A restrictive easement is a condition placed on land by its owner or by the government, which in some way limits the use. These restrictive easements may be for certain types of structures permitted to be built, or the land use of the ground itself. An example of a restrictive easement may be to not allow persons to live on a certain parcel of land. This type of restrictive easement could be in the event the government believed that there was a reason for the land to be unsafe or unhealthy for its citizens.
Restrictive easements are frequently placed on wetlands, oceanfront, or riverbanks, to prevent their being destroyed by development. In Mexico , the restrictive zones include oceanfront measured from a certain water depth or "take" line, and a restrictive easement from of certain distance in kilometers from a state border.
* In the US state of Delaware , there are still separate courts for law and equity. Its Court of Chancery is where most cases involving Delaware corporations are decided. This Delaware Court of Chancery shapes corporation law for the entire country. There are other U.S. states, which have separate divisions for legal and equitable matters in a single court.
This article is based upon
legal opinions, current practices
and my personal experiences.
I recommend that each potential
buyer or seller conduct his
own due diligence and review
.
Harriet
Cochran Murray
For
additional information on
properties, for sale or lease
within the bay please visit Harriet
Murray website, call
or e-mail me at: harriet@casasandvillas.com
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