October 26th and 28th:
LEGAL AND CONVENTIONAL HYPOTHECS
A. Nature of Hypothecs 2660 A hypothec is a real right on a movable or immovable - tŚĞŶŝƚ͛ƐƐŽůĚ͕ƚŚĞƌŝŐŚƚƐŽŶ the property made liable for the performance of an property remain the same obligation. It confers on the creditor the right to follow -The debts are carried onto that the property into whosever hands it may be, to take property when it is sold and the possession of it or to take it in payment, or to sell it or new owner must assume them. cause it to be sold and, in that case, to have a preference -Object can be repossessed and upon the proceeds of the sale ranking as determined in resold to obtain proceeds. -Other this Code. rights must be payed out according to the ranks of the inscriptions
Example: financing of a car, in exchange for giving money you have to oblige to pay them back.
o Real right ŵĞĂŶƐŝƚŝƐŵĂƚĞƌŝĂů͗ĐĂƌƐ͕ƉƌŽƉĞƌƚŝĞƐ͕ďŽŶĚƐ͕ĞƚĐ͙ o /ƚŝƐĂƐƚŚŽƵŐŚŽŶĞ͛ƐŚĂŶĚƐƚĂLJƐŽŶƚŚĞƉƌŽƉĞƌƚLJ o Creditor and debtor is necessary o One can take possession of a movable or an immovable /ŶƉĂLJŵĞŶƚŽĨŽŶĞ͛ƐĚĞďƚƚŚĞĐƌĞĚŝƚŽƌĐĂŶƚĂŬĞŽďũĞĐƚƐƚŽĐŽŵƉĞŶƐĂƚĞ Can only take what is there once Can sell it and take proceeds of the sale
2661 A hypothec is merely an accessory right, and subsists -If the debt is paid in full, then only as long as the obligation whose performance it your rights on the property no secures continues to exist longer exist - If the debt does not exist ĂŶLJŵŽƌĞƚŚĞ͚ƌŝŐŚƚ͛ŝƐĚĞĂĚ͖ŝƚŝƐ accessory to the debt
2663 The hypothecary rights conferred by a hypothec may be -Register for movables and set up against third persons only when the hypothec is register of immovables: If you published in accordance with this Book or the Book on ĚŽŶ͛ƚƌĞŐŝƐƚĞƌƚŚĞproperty, then Publication of Rights. ƚŚĞƌŝŐŚƚǁŽŶ͛ƚďĞƉƌŽƚĞĐƚĞĚ͘
Example: buy a GM car and ĨŝŶĂŶĐĞŝƚ͘/Ĩ'DĚŽĞƐŶ͛ƚƌĞŐŝƐƚĞƌ͕ then the dude who sells his car ƚŽĂĨƌŝĞŶĚ͘'DĐĂŶ͛ƚƌĞƉŽƐƐĞƐƐ the car from the new owner.
RDPRM: personal property registry in Quebec Land Registry: Shows you the history of a property; (previous owners and hypothecs) to find out who owns the property. /ƚ͛ƐŝŵƉŽƌƚĂŶƚƚŽŬŶŽǁǁŚŽƚŚĞƚƌƵĞŽǁŶĞƌŽĨƚŚĞƉƌŽƉĞƌƚLJŝƐ
B. Kinds of Hypothec 2664 Hypothecation may take place only on the conditions Conventional hypothec: you and according to the formalities authorized by law. have to draft your own contract A hypothec may be conventional or legal. Legal hypothec: provided by law
2665 A hypothec is movable or immovable depending on Examples: An elevator can be an whether the object charged is movable or immovable ŝŵŵŽǀĂďůĞŽŶĐĞŝƚ͛ƐƐŽůĚ͘tŚĞƌĞ property or a universality of movable or immovable ĚŽLJŽƵƌĞŐŝƐƚĞƌŝƚ͍/ƚ͛ƐƚŚĞƚŝŵĞ property. frame that makes it different. In the case of the elevator, it A movable hypothec may be created with or without becomes and immovable and delivery of the movable hypothecated. Where it is should be registered (ǁŚĞŶŝƚ͛Ɛ created with delivery, it may also be called a pledge. installed?)
You have movable and immovable, And movable can be with or without delivery on a universality of goods that you can register a hypothec
Universality of immovables: ŵĞĂŶƐƚŚĂƚƚŚĞďĂŶŬŚĂƐĂŚLJƉŽƚŚĞĐŽŶŽŶĞ͛ƐŝŶǀĞŶƚŽƌLJĂƚĂŶLJƚŝŵĞ
Universality of goods: all the goods at once and not an element džĂŵƉůĞ͗LJŽƵ͛ƌĞƉƌŽǀŝĚŝŶŐŝŶǀĞŶƚŽƌLJĨŽƌĂƐƚŽƌĞ;ĞdžĐůŽƚŚĞƐͿ͘zŽƵƌŚĂŶĚŝƐĂůǁĂLJƐŽŶƚŚĞƉƌŽƉĞƌƚLJ͘dŚĞ right is on all the goods. Example: shares in a company. You buy shares with a loan. Whoever loans money for the shares keeps possession of them. De-possession: taking the shares away
2671 A hypothec extends to everything united to the property Def of accession: by accession. -Increase by something added -acquisition of additional property (as by growth or increase of existing property) Conventional Hypothecs 2861 A conventional hypothec may be granted only by a Conventional hypothec: you person having the capacity to alienate the property have to draft your own contract hypothecated. It may be granted by the debtor of the obligation secured The person selling the asset has or by a third person. to own the asset. 2683 Except where he operates an enterprise and the hypothec is charged on the property of that enterprise, a natural person may grant a movable hypothec without delivery only on road vehicles or other movable property determined by regulation and subject to the conditions determined by regulation.
2687 A hypothec may be granted to secure any obligation -You can write a hypothec whatever. contract on just about anything. - A hypothec can apply on any tangible good
2693 An immovable hypothec is, on pain of absolute nullity, -To register an immovable granted by notarial act en minute. hyopthec, it has to be done by notary to be valid.
-For a movable, it needs to be put in writing.
En minute: a notary checks the owner of the house, the seller, the buyer, the bank etc. And writes it on the document. The contents of the document are the minutes of the document.
Ranking: 2941-2945: whoever got there first gets paid first
2695 Hypothecs on the present and future rents produced by -Rent is considered an an immovable and hypothecs on the indemnities paid immovable under the insurance contracts covering the rents are -It is an investment considered to be immovable hypothecs.
2696 A movable hypothec without delivery shall, on pain of absolute nullity, be granted in writing.
2702 2702: A movable hypothec with delivery is granted by 2703 physical delivery of the property or title to the creditor or, if the property is already in his hands, by his continuing to physically hold it, with the grantor's consent, to secure his claim. 2703: A movable hypothec with delivery is published by the creditor's holding the property or title, and remains so only as long as he continues to hold it.
2710 2710: A movable hypothec on a claim held by the grantor 2711 against a third person or on a universality of claims may be granted with or without delivery. 2711: A hypothec on a universality of claims, even when granted by the remittance of the title to the creditor, shall be entered in the proper register.
2724 Only the following claims may give rise to a legal hypothec: 1) Claims with the state (taxes) (1) claims of the State for sums due under fiscal laws, and certain other claims of the State or of legal persons 2) Construction hypothecs established in the public interest, under specific provision of law; 3) COOPs (syndicate of (2) claims of persons having taken part in the coowners) construction or renovation of an immovable; (3) the claim of a syndicate of co-owners for payment of the common expenses and contributions to the contingency fund; (4) claims under a judgment
2725 The legal hypothecs of the State, including those for You have to register in the right sums due under fiscal laws, and the hypothecs of legal register persons established in the public interest may be charged on movable or immovable property.
Such hypothecs take effect only from their registration in the proper register. Application for registration is made by filing a notice indicating the legislation granting the hypothec, the property of the debtor on which the creditor intends to exercise it, and stating the cause and the amount of the claim. The notice shall be served on the debtor.
2726-2728: CONSTRUCTION HYPOTHEC (exam question!!)
2726 A legal hypothec in favour of the persons having taken part in the construction or renovation of an immovable may not charge any other immovable. It exists only in favour of the architect, engineer, supplier of materials, workman and contractor or sub-contractor in proportion to the work requested by the owner of the immovable or to the materials or services supplied or prepared by them for the work. It is not necessary to publish a legal hypothec for it to exist.
o Always know who you are dealing with and when did you come into the project o There is only one end to the project o 30 days to register the hypothec on the immovable registry within the end of a project o One would denounce the contract when dealing with a promoter on a property the promoter does not own in order for the lean to be valid o Lean gives presumption of a right by registering the document o Good reflex is to place stipulation relating to interest on debt owed o If project is never completed, one can only go on the value added o Cannot place a lean on public property
Individuals in construction can get hypothecs. Architects, engineers and contractors automatically have a ƌŝŐŚƚĞǀĞŶŝĨLJŽƵĚŽŶ͛ƚƌĞŐŝƐƚĞƌ͘/ƚ͛ƐĂ͞ĐůƵď͘͟ tŚĂƚLJŽƵǁŝůůĐůĂŝŵŝƐƚŚĞĂĚĚĞĚǀĂůƵĞLJŽƵ͛ƌĞƉƵƚŝŶƚŽƚŚĂƚ property. You add value by doing your work. But only if the work has been started. /Ĩŝƚ͛ƐũƵƐƚƉůĂŶƐ ŚŽǁĞǀĞƌ͕ƚŚĞŶŝƚĚŽĞƐŶ͛ƚǁŽƌŬďĞĐĂƵƐĞǀĂůƵĞŚĂƐŶŽƚďĞĞŶĂĚĚĞĚƚŽƚŚĞƉƌŽƉĞƌƚLJLJĞƚ͘/ĨǀĂůƵĞŚĂƐŶŽƚ been added, then you have to sue them with a conventional stĂƚĞŵĞŶƚŽĨĐůĂŝŵ͘zŽƵĚŽŶ͛ƚŚĂǀĞƚŚĞƐĂŵĞ recourses and it will take a lot longer.
If general contractor puts his/her ŚĂŶĚŽŶĂƉƌŽƉĞƌƚLJ͕ĐŚĞĐŬŝĨƚŚĞLJŚĂǀĞĂůŝĐĞŶĐĞ͙ŝĨƚŚĞLJĚŽŶ͛ƚŚĂǀĞŽŶĞ ƚŚĞLJ͛ƌĞŶŽƚĂůůŽǁĞĚƚŽĚŽŝƚ͘
2727 A legal hypothec in favour of persons having taken part in the construction or renovation of an immovable subsists, even if it has not been published, for 30 days after the work has been completed. It is extinguished six months after the work is completed, unless, to preserve the hypothec, the creditor publishes an action against the owner of the immovable or registers a prior notice of the exercise of a hypothecary right.
Mechanics of the procedure:
džĂŵƉůĞ͗LJŽƵ͛ƌĞďƵŝůĚŝŶŐĂŶĂƉĂƌƚŵĞŶƚďƵŝůĚŝŶŐ͘ƚƚŚĞƐƚĂƌƚŽĨƚŚĞƉƌŽũĞĐƚ͕Ăn engineer is hired and is ĨŝŶŝƐŚĞĚďĞĨŽƌĞƚŚĞĐŽŵƉůĞƚŝŽŶ͘/ŶǀŽŝĐĞϯϬĚĂLJƐ͙ŬĞĞƉĂŶĞLJĞŽŶŝƚĂŶĚŝĨŝƚĚŽĞƐŶ͛ƚŐĞƚƉĂŝĚǁŚĂƚĚŽLJŽƵ ĚŽ͍ĨƚĞƌϯLJĞĂƌƐLJŽƵǁŽŶ͛ƚďĞĂďůĞƚŽĐŽůůĞĐƚŝƚ͙
30 days after the end is the maximum delay, you can send your stuff before the end?
STEP 1: 2727: AFTER THE END OF THE PROJECT, YOU HAVE 30 DAYS TO CLAIM YOUR LEGAL HYPOTHEC r.o.t= if the ďƵŝůĚŝŶŐŝƐďĞŝŶŐŽĐĐƵƉŝĞĚ͕ƚŚĞŶĐŽŶƐƚƌƵĐƚŝŽŶŝƐƉƌŽďĂďůLJ͞ĞŶĚĞĚ͟ Send a notice to the owner through a bailiff to secure your legal hypotheque
STEP 2: if nothing in 6 months at the end of the projectͶthen send second document to follow up (served the same way)
You can sue or you can use the hypothecary right. Hypothecary right is much simpler and more effective than a law suit. 2728 The hypothec secures the increase in value added to the immovable by the work, materials or services supplied or prepared for the work. However, where those in favour of whom it exists did not themselves enter into a contract with the owner, the hypothec is limited to the work, materials or services supplied after written declaration of the contract to the owner. A workman is not bound to declare his contract.
Example: LJŽƵ͛ƌĞŝŵƉůicated in a part of the project and LJŽƵ͛ǀĞǁŽƌŬĞĚŽŶƐŽŵĞƚŚŝŶŐ͘dŚĞůĂǁƐĂys automatically you have the right to a hypothec͘͞EdžĐůƵƐŝǀĞĐůƵď͟ĚƵƌŝŶŐƚŚĞĞŶƚŝƌĞƉƌŽũĞĐƚ͕LJŽƵ automatically have a right to get paid and the right to a hypothec. No need to resister. You have 30 days until the END OF CONSTRCTION IN GENERAL to protect the legal hypothec the law gave you. You have to send a notice if LJŽƵĚŽŶ͛ƚŐĞƚƉĂŝĚ͘
Send 2 page Notice to the OWNER. ``WĞ͛ǀĞĚŽŶĞƚŚĞǁŽƌŬŽŶyƉƌŽƉĞƌƚLJ͕ǁĞ͛ǀĞƐĞŶƚƚŚĞŝŶǀŽŝĐĞ͕LJŽƵ ŚĂǀĞŶ͛ƚƉĂŝĚ͕LJŽƵĂƌĞŝŶĚĞĨĂƵůƚ`` If you write the notice, then you dŽŶ͛ƚŚĂǀĞƚŽƉƌŽǀĞƚŚĞĐŽŶƚƌĂĐƚĂŶĚƚŚĂƚLJŽƵĚŝĚŶ͛ƚŐĞƚƉĂŝĚ͘ The property is registered on the land registry. If there are complications, then the bank is alerted and they can force the person to pay you by withholding funds. zŽƵ͛ƌĞƐĞŶĚŝŶŐĂŶŽƚŝĐĞƚŽthe person you have a contract with who you ASSUME is the owner. If the ŽǁŶĞƌŝƐEKdǁŚŽ͛ƐƉĂLJŝŶŐLJŽƵ͕ƚŚĞŶLJŽƵƐƚŝůůŶĞĞĚƚŽƐĞŶĚĂůĞƚƚĞƌƚŽŚŝŵ͘
A ŶŽƚŝĐĞŶĞĞĚƐƚŽďĞƐĞŶƚƚŽƚŚĞZ >KtE ZƚŚĂƚLJŽƵ͛ƌĞƐƚĂƌƚŝŶŐǁŽƌŬŽŶŚŝƐƉƌŽƉĞƌƚLJ͘ŽƚŚŝƐ &KZ you sƚĂƌƚ͘/Ĩŝƚ͛ƐĂĨƚĞƌ͕ƚŚĞŶLJŽƵŐĞƚŽŶůLJϱϬй͘
2952 Legal hypothecs in favour of persons having taken part (ranking) in the construction or renovation of an immovable are ranked before any other published hypothec, for the increase in value added to the immovable; such hypothecs rank concurrently among themselves, in proportion to the value of each claim.
2729 The legal hypothec of a syndicate of co-owners charges Co-op/condominium stuff: you the fraction of the co-owner who has defaulted for more have to pay your dues every than 30 days on payment of his common expenses or his month. There are rules. The dues contribution to the contingency fund, and has effect only are pooled and used to make upon registration of a notice indicating the nature of the renovations on the buildingͶ claim, the amount exigible on the day the notice is ĐŽŶƚŝŶŐĞŶĐLJĨƵŶĚ͘dŚĞƌĞ͛ƐĂŶ registered, and the expected amount of charges and equation in the contract which claims for the current financial year and the next two tĞůůƐLJŽƵŚŽǁŵƵĐŚLJŽƵ͛ůůŚĂǀĞƚŽ years. ƉĂLJĨŽƌƌĞƉĂŝƌƐ͘/ĨLJŽƵĚŽŶ͛ƚƉĂLJ͕ then the condo association can put a legal hypothec on you. If you are on default on payment for 30 days, then they can exercise the legal hypothec.
2730 Every creditor in whose favour a judgment awarding a If the court awards you (1) a sum sum of money has been rendered by a court having of money and ;ϮͿŝƚ͛ƐŝŶƋƵĞďĞĐ, jurisdiction in Québec may acquire a legal hypothec on then you can exercise a legal the movable or immovable property of his debtor. hypothec (this was a question He may acquire it by registering a notice describing the one year) property charged with the hypothec and specifying the amount of the obligation, and, in the case of an annuity or support, the amount of the instalments and, where applicable, the annual Pension Index. The notice is filed with a copy of the judgment; it must be served on the debtor.
2731 Except in the case of the legal hypothec of the State or of a legal person established in the public interest, the court, on application of the owner of the property charged with a legal hypothec, may determine which property the hypothec may charge, reduce the number of the properties or give leave to the applicant to substitute other security for the hypothec sufficient to secure payment; it may thereupon order the registration of the legal hypothec to be cancelled.
October 28th (November 16th in course outline):
INSURANCE Fundamental principles 2389 A contract of insurance is a contract whereby the -Something is described for a insurer undertakes, for a premium or assessment, to premium make a payment to the client or a third person if an -Evaluate the risk and fix the event covered by the insurance occurs. premium in relation to the risk Insurance is divided into marine insurance and non- -If the risk is greater, the marine insurance. premium will be higher -Risk is based on number of accidents and past experiences
o When insurer sets your premium he looks at the risk pertaining to what is being insured o The higher the deductible the lower the premium is o If the risk materialises then the insurer has to compensate the individual o If something is expected then it becomes un-insurable o Only unexpected accidents/events can be covered
Definition of premium: the consideration paid for a contract of insurance͘/ƚ͛ƐǁŚĂƚLJŽƵƉĂLJƚŽŬĞĞƉLJŽƵƌ ĐŽŶƚƌĂĐƚĂŶĚƚŽŵĂŬĞƐƵƌĞƚŚĂƚLJŽƵ͛ƌĞŝŶƐƵƌĞĚ͘
Deductible: The first percentage of the claim that you have to support yourself. If your deductible is 500$, then it meĂŶƐƚŚĂƚLJŽƵĐĂŶŽŶůLJŵĂŬĞĐůĂŝŵƐƚŚĂƚĂƌĞŽǀĞƌϱϬϬΨ͘>Ğƚ͛ƐƐĂLJLJŽƵŚĂǀĞϮϬϬϬΨǁŽƌƚŚ of damage, then your insurance company will only give you 1500$ (2000$ minus your deductible of 500$)
Example: car accident you have to pay 1000$ to repair the car. Garage will ask for money from the insurance. You will have to pay a portion of the repairs (deductible). If the deductible is greater than the ŵŽŶĞLJƚŚĞLJǁŝůůŐŝǀĞLJŽƵ͕ƚŚĞŶŝƚ͛ƐŶŽƚǁŽƌƚŚŵĂŬŝŶŐĂĐůĂŝŵ͘ůƐŽ͕ŝĨŝƚ͛ƐŶŽƚĞŶŽƵŐŚŵŽŶĞLJ͕ŝƚ͛ƐŶŽƚ worth claiming because your future insurance premiums will be higher.
2464 The insurer is liable to compensate for injury resulting Intention to cause from superior force or the fault of the insured, unless an damage/predjudice, is not exclusion is expressly and restrictively stipulated in the covered by insurance. policy. However, the insurer is never liable to compensate for injury resulting from the insured's intentional fault. Where there is more than one insured, the obligation of coverage remains in respect of those insured who have not committed an intentional fault. Where the insurer is liable for injury caused by a person for whose acts the insured is liable, the obligation of coverage subsists regardless of the nature or gravity of the fault committed by that person.
2414 Any clause in a non-marine insurance contract which -The insurance contract is null if grants the client, the insured, the participant, the any stipulations in the contract beneficiary or the policyholder fewer rights than are remove rights which are granted granted by the provisions of this chapter is null. from the code. Any stipulation which derogates from the rules on insurable interest or, in liability insurance, from those -Insurance companies have a protecting the rights of injured third persons is also null. duty to defend if you are sued. Any restrictions on rights are not valid.
Basic Divisions 2389- General Provisions 2414 2391: Non-marine insurance is divided into insurance of persons and damage insurance.
2392: Insurance of persons deals with the life, physical integrity or health of the insured. Insurance of persons is divided into individual insurance and group insurance. Group insurance of persons, under a master policy, covers the participants in a specified group and, in some cases, their families or dependants. o Insurance of persons
2395: Damage insurance protects the insured from the consequences of an event that may adversely affect his patrimony. o Damage insurance
2396: Damage insurance includes property insurance, the object of which is to indemnify the insured for material loss, and liability insurance, the object of which is to protect the insured against the pecuniary consequences of the liability he may incur for damage to a third person by reason of an injurious act. o Property and liability insurance
2399: If there is a difference in the proposition and the policy, the proposition prevails
2405: if the insurer wants to reduce the coverage, he has to obtain your consent in writing to do it. Where such a change is made upon renewal, the insurer shall indicate it in a separate document
ϮϰϬϴ͗ƚŚĞŝŶƐƵƌĞƌǁŝůůĂƐŬLJŽƵĂƚŽŶĂƋƵĞƐƚŝŽŶƐ͕ŝĨLJŽƵĚŽŶ͛ƚƚĞůůŚŝŵƚŚĞƚƌƵƚŚ͕ƚŚĞŶƚŚĞƌĞŝƐ a breach of 2408 and there are consequences. dž͘/ĨLJŽƵƐĂLJLJŽƵĚŽŶ͛ƚƐŵŽŬĞďƵƚŝŶĂĐƚƵĂůĨĂĐƚLJŽƵĚŽ͙ƚŚĞŝŶƐƵƌĞƌĐĂŶƌĞĨƵƐĞƚŽƉĂLJLJŽƵ (esp if you die of lung cancer). You have to obligation to let the insurer determine your appropriate risk.
ϮϰϬϵ͗ŝĨƚŚĞŝŶƐƵƌĞĚŝƐŝŶŐŽŽĚĨĂŝƚŚĂŶĚĞǀĞŶŝĨŝƚ͛ƐŶŽƚĐŽŵƉůĞƚĞůLJƚƌƵĞ͕ƚŚĞŶŝƚ͛ƐƐƚŝůů ok. If LJŽƵ͛ƌĞŚƵŶŐŽǀĞƌĂŶĚLJŽƵƐĂLJLJŽƵ͛ƌĞϮϯLJĞĂƌƐŽůĚŝŶƐƚĞĂĚŽĨϮϰ͕ƚŚĞŶŝƚ͛ƐŶŽƚĂŚƵŐĞĚĞĂů.
2410: exception of age or risk, if they discover a mistake there can be an annulation of the policy. If the risks were not disclosed, they can annul the policy. You get your money back but your claim will be invalid
2411: Unless the insurer established bad faith and he can demonstrate the risk hidden from him was important that he will not have covered it. Example: charge 50$ a month and discovers something even more risky, then they can still give you protection, but the claim made will be a proportion of what they should have charged you??? Wtf
2415- Insurance of Persons (definition 2392) 2462 Individual insurance (example life insurance) and group insurance
2413- Damage insurance: 2463 2504 Here, there is a policy limit but the insurer is only there to cover the real damages. Example: If 200000$ house insured as a million dollar house, the insurer will only give your 200000$. If you are under-insured, then you only get the policy limit (which will be less than 200000) The insurer must be advised as soon as you are aware of a claim. Within a reasonable delay or else the insurer can reduce your coverage. They need this so that they can investigate the cause of the loss.
Property insurance is included in damage insurance and insures against damages to house, car etc)
Liability insurance (protects against claims by third parties against you)
Basic characteristics 2398 A contract of insurance is formed upon acceptance by Acceptance of the application of the insurer of the application of the client. client
2400 In non-marine insurance, the insurer shall remit the policy to the client, together with a copy of any application made in writing by the client or on his behalf. In case of discrepancy between the policy and the application, the latter prevails unless the insurer has, in a separate document, indicated the particulars in respect of which there is discrepancy to the client.
2403 Subject to the special provisions on marine insurance, Written Contract needs to be the insurer may not invoke conditions or respected representations not written in the contract. 2405 In non-marine insurance, changes to the contract made by the parties are evidenced by riders attached to the policy. Any rider stipulating a reduction of the insurer's liability or an increase in the insured's obligations, other than an increased premium, has no effect unless the policyholder consents to the change in writing. Where such a change is made upon renewal of the contract, the insurer shall indicate it clearly to the insured in a separate document from the rider which stipulates it. The change is presumed to be accepted by the insured 30 days after receipt of the document. -If the insurer wants to reduce the coverage, he has to obtain your consent in writing to do it.
-Where such a change is made upon renewal, the insurer shall indicate it in a separate document -Additions or modifications -Riders modify the same policy and must be signed by both parties -Riders are there to protect the insurer
2408 Obligations of the Insured The insurer will ask you a ton a ƋƵĞƐƚŝŽŶƐ͕ŝĨLJŽƵĚŽŶ͛ƚƚĞůůŚŝŵ The client, and the insured if the insurer requires it, is the truth, then there is a breach bound to represent all the facts known to him which of 2408 and there are are likely to materially influence an insurer in the consequences. setting of the premium, the appraisal of the risk or the Ex. If you ƐĂLJLJŽƵĚŽŶ͛ƚƐŵŽŬĞ decision to cover it, but he is not bound to represent ďƵƚŝŶĂĐƚƵĂůĨĂĐƚLJŽƵĚŽ͙ƚŚĞ facts known to the insurer or which from their notoriety insurer can refuse to pay you he is presumed to know, except in answer to inquiries. (esp if you die of lung cancer). You have to obligation to let the insurer determine your appropriate risk.
2409 Limit of the obligation If the insured is in good faith and ĞǀĞŶŝĨŝƚ͛ƐŶŽƚĐŽŵƉůĞƚĞůLJƚƌƵĞ͕ The obligation respecting representations is deemed ƚŚĞŶŝƚ͛ƐƐƚŝůůŽŬ͘/ĨLJŽƵ͛ƌĞŚƵŶŐ properly met if the representations are such as a ŽǀĞƌĂŶĚLJŽƵƐĂLJLJŽƵ͛ƌĞϮϯLJĞĂƌƐ normally provident (prudent) insured would make, if ŽůĚŝŶƐƚĞĂĚŽĨϮϰ͕ƚŚĞŶŝƚ͛ƐŶŽƚĂ they were made without material concealment and if huge deal the facts are substantially as represented.
2410 Subject to the provisions on statement of age and risk, Exception of age or risk, if they any misrepresentation or concealment of relevant facts discover a mistake there can be by either the client or the insured nullifies the contract an annulation of the policy. at the instance of the insurer, even in respect of losses If the risks were not disclosed, not connected with the risks so misrepresented or they can annul the policy. You concealed. get your money back but your claim will be invalid
2411 In damage insurance, unless the bad faith of the client is Unless the insurer established established or unless it is established that the insurer bad faith and he can would not have covered the risk if he had known the demonstrate the risk hidden true facts, the insurer remains liable towards the from him was important that he insured for such proportion of the indemnity as the would not have covered it, then premium he collected bears to the premium he should he has to pay. have collected. Example, charge 50$ a month and discovers something even more risky, then they can still give you protection, but the claim made will be a proportion of what they should have charged you??? Wtf
Instead of cancelling the policy it is adjusted
Damage Insurance 2463 Limits to coverage
In damage insurance, the insurer is obliged to compensate for any injury suffered at the time of the loss but only up to the amount of the insurance. 2466 The insured shall promptly notify the insurer of any change that increases the risks stipulated in the policy and that results from events within his control if it is likely to materially influence an insurer in setting the rate of the premium, appraising the risk or deciding to continue to insure it. If the insured fails to discharge his obligation, the provisions of article 2411 apply, adapted as required.
2470 Notice of Loss Duty to report any claims as soon as possible The insured shall notify the insurer of any loss which -Must give notification as soon may give rise to an indemnity, as soon as he becomes as the individual is aware aware of it. Any interested person may give such notice. -There are some restrictions ĨƌŽŵƚŚĞŝŶƐƵƌĞƌ͛ƐƐŝĚĞ An insurer who has not been so notified may, where he -Insurers will want you to give sustains injury therefrom, set up against the insured any them notice of anticipated clause of the policy providing for forfeiture of the right claims to indemnity in such a case. 2472 Deceitful representation -Loss of coverage for risk -Moveable vs. immovable Any deceitful representation entails the loss of the right -Occupational vs. personal use of the person making it to any indemnity in respect of the risk to which the representation relates. -Very broad article which goes However, if the occurrence of the event insured against back the obligation of good faith. entails the loss of both movable and immovable If there was a false property or of both property for occupational use and representation, the insure who personal property, forfeiture is incurred only with can prove that there was false respect to the class of property to which the representation can refuse to give representation relates. money
2481 A person has an insurable interest in a property where Insurable interests. You have to the loss or deterioration of the property may cause him have an interest in the property direct and immediate damage. ŽƌƚŚĞƉĞƌƐŽŶŝŶƐƵƌĞĚ͘ŽŶ͛ƚ It is necessary that the insurable interest exist at the insure some random dude on time of the loss but not necessary that the same interest your street, not permitted by law have existed throughout the duration of the contract. ;ƚŚĞLJ͛ůůƚŚŝŶŬLJŽƵǁĂŶƚƚŽŬŝůůŚŝŵ for insurance money).
2503 Duty to defend The insurer has a duty to defend you if you get sued. The insurer is bound to take up the interest of any person entitled to the benefit of the insurance and assume his defence in any action brought against him. Costs and expenses resulting from actions against the insured, including those of the defence, and interest on the proceeds of the insurance are borne by the insurer over and above the proceeds of the insurance. Insurance of Persons x Insurable interest: o 2418: In individual insurance, a contract is null if at the time the contract is made the client has no insurable interest in the life or health of the insured, unless the insured consents in writing. Subject to the same reservation, the assignment of such a contract is null if the assignee does not have the required interest at the time of the assignment. o 2419: A person has an insurable interest in his own life and health and in the life and health of his spouse, of his descendants and the descendants of his spouse, or of persons who contribute to his support or education. He also has an interest in the life and health of his employees and staff or of persons in whose life and health he has a pecuniary or moral interest. x Application governs: o 2417: In accident and sickness insurance, the insurer may not, except in case of fraud, exclude or reduce the coverage by reason of a disease or ailment disclosed in the application except under a clause referring by name to the disease or ailment. Except in the case of fraud, an insurer may not, by a general clause, exclude or limit the coverage by reason of a disease or ailment not disclosed in the application unless the disease or ailment appears within the first two years of the insurance. x Payment of Premiums: o 2427: In life insurance, the policyholder is entitled to 30 days for the payment of each premium, except the initial premium; the insurance remains in force during the 30 days, but failure to pay the premium within that period terminates the insurance. The period runs concurrently with any other period granted by the insurer, but it may not be reduced by agreement. 30 days o 2431: The insurer is bound to reinstate individual life insurance that has been cancelled for non-payment of the premium if the policyholder applies to him therefor within two years from the date of the cancellation and establishes that the insured still meets the conditions required to be insured under the cancelled contract. The policyholder is bound in that case to pay the overdue premiums and repay the advances he has obtained on the policy, with interest at a rate not exceeding the rate fixed by the regulations made to that effect by the Government. The insurer is not bound by the first paragraph if the surrender value has been paid or if the policyholder has elected for a reduction or extension of coverage. Reinstatement o 2434: Upon the reinstatement of a contract of insurance, the two year period during which the insurer may bring an action for the annulment of the contract or reduction of coverage by reason of misrepresentation or concealment relating to the risk, or by reason of the application of a clause of exclusion of coverage in case of the suicide of the insured, runs again. x Payment: o 2435: The holder of an accident and sickness policy or the beneficiary or insured shall give written notice of loss to the insurer within 30 days of acquiring knowledge of it. He shall also, within 90 days, transmit all the information to the insurer that he may reasonably expect as to the circumstances and extent of the loss. The person entitled to the payment is not prevented from receiving it if he proves that it was impossible for him to act within the prescribed time, provided the notice is sent to the insurer within one year of the loss.
November 4th and 9th 2010: Business Association and taxation
x The various forms by which you will carry out your profession x Not based on the code. Based on what is said in class. TAKE GOOD NOTES. x Four different forms o Employment o Self-employed (sole proprietorship) o Partnership o The company, incorporation x Tax based on income o Employment o Business o Investment o Capital gains x Employee VS Independent Contractor o If you are an employee, there is an employer o You can be an employee of a sole proprietor o You can also be an employee of a partnership or an incorporation o Sole proprietor, you own the business, the business is you o If you call a plumber, is the plumber your employer while working for you? NO. The plumber may be an employee of a sole proprietor o University professor? An employee. o If you are subject of supervision and control, no loss from the business. o Employee No liability Responsible only to the employer (only within the scope of contractor) x Income Tax o Employees pay on all income, no deductions unless specifically mentioned in income tax act. o If your employer makes you buy a uniform, you can deduct that o Certain travel expenses as well o Deducted At Source (DAS) Employer is obliged to take the money right away and give it to the government o Self Employed Taxation Pay tax on all income Can deduct any expense in course of work, except if prohibited by income tax act Not deducted right away, make tax instalments x Quarterly, send in tax that you owe x 15th March, June, September, December x Can either install ¼ of your last bill OR install ¼ of what you think your income is (would only do that if you thought you were going to make less) x If you doŶ͛ƚƐĞŶĚŝŶĞŶŽƵŐŚ͕ƚŚĞLJĐŚĂƌŐĞLJŽƵŝŶƚĞƌĞƐƚ x You may pay less often, but still pay same amount o April 30th͕ĐĂŶŝŶĐƵƌĚĞďƚŝĨLJŽƵǁĞƌĞŶ͛ƚ^ o Accrual basis Engineer, finish a job, send an invoice, amount is automatically added to your income EVEN THOUGH THE >/ Ed,^E͛dW/z d 'ĞƚĂŚƌŝƐƚŵĂƐďŽŶƵƐ͕ďƵƚĚŽŶ͛ƚĐĂƐŚŝƚƵŶƚŝůĂĨƚĞƌEĞǁzĞĂƌƐ͕ŝƚƐƚŝůůĐŽƵŶƚƐĨŽƌ the previous year ŽŶ͛ƚŐŽŽŶĂďƵŝůĚŝŶŐƐƉƌĞĞŝŶĞĐĞŵďĞƌ o Tax evasion o Can impose penalties up to 200% of tax o When they catch up to you, and you can͛ƚƉĂLJŝƚ͕LJŽƵŐŽƚŽũĂŝů Imprisonment in a federal institution dŚĂƚ͛ƐŚŽǁƚŚĞLJŐŽƚůĂƉŽŶĞ o Minimize burden = tax PLANNING x Calendar year VS Fiscal Year o Fiscal year ʹ period over which you assess you income. Same length as calendar year. 2010 tax year o In corporations or parntership, you can have a non-calendar fiscal year EX. March 1, 2010 - Feb 28, 2011. [2011 Tax Year] ŽŶ͛ƚŚĂǀĞƚŽĨŝůĞƵŶƚŝůϲŵŽŶƚŚƐůĂƚĞƌ Another possibility for deferral x Registered business: because you can adopt a name. But it doeƐŶ͛ƚŵĞĂŶƚŚĂƚƚŚĞďƵƐŝŶĞƐƐŝƐĂ different entity than you. x WĂƌŶƚĞƌƐŚŝƉĚŽĞƐŶ͛ƚĞƋƵĂůũŽŝŶƚǀĞŶƚƵƌĞ x 2186 ʹ partnership ʹ a contract by which the parties, in a spirit of cooperation agree to carry on... o Share pecuniary profits o Two parties o Share losses o Presumed to share equally x Oral contract, hard to prove, WRITE IT DOWN x Litigation o Expensive, time consuming, aggravating x Partnership o 50, 30, 20 % o WRITE THAT DOWN o Can own stuff, partnership assets Partnership assets do not belong to the partners x Computers, desks, work in progress tŚĞŶLJŽƵŚĂǀĞĂĚŝƐƚŝŶĐƚĞŶƚŝƚLJ͕ŽǁŶĞƌƐĚŽŶ͛ƚŽǁŶĂƐƐĞƚƐŽĨƚŚĞĞŶƚŝƚLJ o Forms General - 2189 ʹ must file a declaration 2219 ʹ partners bind the partnership. If you sign something on behalf of the partnership, its legal. 2216 - Voting doĞƐŶŽƚŚĂǀĞƚŽĨŽůůŽǁƉĂƌƚŶĞƌƐŚĂƌĞ͕ŝĨŝƚĚŽĞƐŶ͛ƚ͕ƉƵƚŝƚŝŶƚŚĞ contract 2221 ʹ solidarily liable-- Creditor goes after partnership assets first, then personal assets of partners 2226 ʹ cease to be a partner x Die, bankrupt or want to withdraw If you are a ƉĂƌƚŶĞƌ͕LJŽƵŽǁŶ͚ƉĂƌƚŶĞƌƐŚŝƉŝŶƚĞƌĞƐƚ͛ x zŽƵĐĂŶƐĞůůƚŚĞ͚ŝŶƚĞƌĞƐƚ͕͛ďƵƚŶŽƚƚŚĞĂĐƚƵĂůƐƚƵĨĨ x Can sell it back to partners, or a third party x Have to have the consent of other parties to sell to a third party x If you want out, you can get out, it WILL happen (this is different than corporations) x When you die, interest goes to family, not actual role in partnership Limited liability partnership (LLP) x /ĨŽŶĞƉĂƌƚŶĞƌƐĐƌĞǁƐƵƉ͕LJŽƵ͛ƌĞŶŽƚƐŽůŝĚĂƌŝůLJůŝĂďůĞŝĨLJŽƵǁĞƌĞŶ͛ƚ involved Taxation x WĂƌƚŶĞƌƐŚŝƉƐĚŽŶ͛ƚƉĂLJ tax, partners do x Partner should have made instalments x Partnership year end?????????????????????????? o Partner year end April 30th o In June, partnership has year end o
Nov 9 ʹ Taxation Part II
x Progressive tax rates are attached to an individual o The more you make, pay proportional amount more o Highest rate in Quebec ʹ 48.22% (at an income around $70 000) o In Canada, get up to top marginal rates quite quickly o If you are a corporate partner, very different situation x Corporation = company o Two different types Private and public o Public ʹ corporation whose shares are traded on an exchange (TSX, NASDAQ) Anyone can become a shareholder o Private ʹ any company that is not public Shares are not traded Most companies are private Tend to be owned by small groups of people x Companies are distinct legal entities o Sole proprietorship IS you, whereas a company is distinct o Corp., Inc., Ltd. o Even if you are the sole owner of the company, and the company has money in a bank, the money is NOT yours o Companies can sue and be sued o Have limited liability Shareholders are NOT liable for the debts of the company, actions of the company x EXCEPT sometimes (rarely) a law exists that makes a shareholder liable x If the companies pays a dividend, and as a result becomes insolvent, a judge can order the shareholder to return the money so the company can pay its bills x If you guarantee the debts of the company x Income= revenue-expenses o Also called profit x A corporation is a tax payer, have special tax returns o File a T2 o ĂĐŚƉƌŽǀŝŶĐĞŚĂƐĂ͚ŽŵƉĂŶLJĐƚ͛ o CBCA ʹ federal statute to have a federally recognized company o A Quebec company VS a Federal Company EŽƚŵƵĐŚĚŝĨĨĞƌĞŶĐĞ͕ũƵƐƚĚŝĨĨĞƌĞŶƚ͚ďŝƌƚŚĐĞƌƚŝĨŝĐĂƚĞƐ͛ o Company has articles of corporation, which you file with the government, constitution of the company Name or number Corporate powers A minute book, charter of the company, bylaws of the company, charters passed by board of directors o Shares are a bundle of rights When companies are born, issue shares Write a cheque to the company, they give you shares x Capitalizing the company Types of shares x Common and preferred x Common share as no fixed value, goes up and down with the value of the company x Preferred shares have a fixed value, usually have an entitlement to receive a dividend x Voting and nonvoting shares at meetings o Cast: o Shareholders Voting, nonvoting, can buy votes Have a right to vote at the annual meeting Elect directors (and fire them) Approve financial statements Limited day to day rights, not involved in the administration ŽŶ͛ƚŽǁŶĐŽƌƉŽƌĂƚĞĂƐƐĞƐƚƐ Don͛ƚŚĂǀĞĂŶĂƵƚŽŵĂƚŝĐƌŝŐŚƚƚŽǁŝƚŚĚƌĂǁů;ƵŶůŝŬĞĂƉĂƌƚŶĞƌƐŚŝƉͿ o Charter restricts the transferability of the shares in private companies, need consent of board of directors o Directors Elected by shareholders (until next annual meeting) Given the authority to run the business The power to declare dividends Powers outlined in statutes Appoint officers Signing things Also not really in day to day stuff either o Officers Chairman, CEO (outranks president), treasurer Run the business day to day Appointed by the board of directors Employees Board can fire them x Company is set up by three people o Incorporate, come up with a name, file articles under corporation act o Go into business, need capital o Put in a limited amount of capital x Retained earnings = book value of the company x hŶůĞƐƐLJŽƵǁƌŝƚĞŝƚŝŶƚŚĞĐŽŶƚƌĂĐƚ͕LJŽƵĐĂŶ͛ƚŬŝĐŬĂƐŚĂƌĞŚŽůĚĞƌŽƵƚ o They can fire you though x HAVE A SHAREHOLDERS AGREEMENT ʹ how to get rid of shareholders o When someone dies Taxation x Private companies more complicated than public x Depends of the type of income o Not true for employees, sole proprietors x Three different income o Personal service company (beyond this course) o Investment ʹ rent , royalties, interest, capital gains o Everything else ʹ active business income x Corporations have flat tax ʹ not progressive x First $500 000 taxed at 19% x Excess is taxed 30% x Huge tax savings by having company earnings x In Ontario, its 16% x Salary drives down profit x Companies able to accumulate money much faster x /ĨLJŽƵ͛ƌĞĞĂƌŶŝŶŐŵŽƌĞƚŚĂŶLJŽƵƌďƵƌŶƌĂƚĞ͕ũƵƐƚŬĞĞƉŝƚŝŶƚŚĞ company x Majority of wealth in Canada is in companies x Very different in the states ʹ they tax accumulated surplus x Company can give out dividends to get rid of some of its income, but taxed on a personal level at a different rate x Ways to take out money: o Salary o Dividends o Embezzlement ʹ not a good idea o Borrow ʹ not a good idea ʹ they made a law against it x /ŶĐŽƌƉŽƌĂƚŝŶŐĂĐŽŵƉĂŶLJĚŽĞƐŶ͛ƚŵĂŬĞƐĞŶƐĞƵŶůĞƐƐLJŽƵŵĂŬĞŵŽƌĞƚŚĂŶLJŽƵƌďƵƌŶƌĂƚĞĂŶĚ you leave the money in the company x Capital gains ʹ the money you make when you sell a capital assest. An assest that you intend to make money off of. NOT inventory. If you buy land with the idea of subdividing and building houses, that is inventory. Taxed as an individual. If you buy land to be a landlord, that building is now a capital assest. When you sell it, it is a capital gain. Only get taxed on HALF of a capital gain. Investment income if made by a company.
November 11th 2010: Remedies and Prescription
REMEDIES AND PERSCRIPTION 2875 Prescription is a means of acquiring or of being Acquisitive prescription (not to released by the lapse of time and according to the be talked about because it conditions fixed by law: prescription is called almost never happens) acquisitive in the first case and extinctive in the Extinctive prescription second.
PrescriptionͶa right extinguishes after a certain period of time
Period of time is 10 years but there a ton of exceptions to the rule
2880 The day on which the right of action arises fixes the -Damages cause the right of beginning of the period of extinctive prescription. action to arise -In many cases the day of the ͚ĂĐĐŝĚĞŶƚ͛ŝƐƚŚĞƐĂŵĞĂƐƚŚĞ beginning of the period of extinctive prescription
Exception to the 10 years occurs 90% of the time. Most of the time it`s 3 years
When can you claim the right? The day on which you can make your claim. If you have an accident, you can claim the day of the accident. And then you would have 3 years from that date to formally file a lawsuit
2883 Prescription may not be renounced in advance, but Cannot renounce prescription in prescription which has been acquired or any benefit of advance time elapsed by which prescription has begun may be renounced.
2884 No prescriptive period other than that provided by law For a criminal offense there is no may be agreed upon. prescription
2889 Prescription may be interrupted naturally or civilly. -Interruption and suspension of prescription: ex the bank has ǁĂŝƚĞĚϮ͘ϱLJĞĂƌƐƚŽƐƵĞ͙ƚŚĞƌŝŐŚƚ has been exercised
-If you are in an impossibility to act (ex coma) then there is a suspension of prescription
2892 The filing of a judicial demand before the expiry of the -Defendant can be served within prescriptive period constitutes a civil interruption, 60 days of the expiry date of the provided the demand is served on the person to be prescriptive period prevented from prescribing not later than 60 days -The filling of the claim however following the expiry of the prescriptive period. must be made within the 3 year prescriptive period
2898 Acknowledgement of a right, as well as renunciation of -Interruptions stops prescriptions the benefit of a period of time which has elapsed, whereas suspension suspends interrupts prescription. prescription for a period time
-Stop upon date of impossibility and re-begins when impossibility is removed
2904 Prescription does not run against persons if it is impossible in fact for them to act by themselves or to be represented by others.
2906 Married or civil union spouses do not prescribe against each other during cohabitation.
2921 Extinctive prescription is a means of extinguishing a How the period of prescription is right which has not been used or of pleading the non- established admissibility of an action.
2922 The period for extinctive prescription is 10 years, except as otherwise fixed by law. 2925 An action to enforce a personal right or movable real Any claim for contractual or extra- right is prescribed by three years, if the prescriptive contractual damages (basically period is not otherwise established. suing someone) has a prescriptive period of 3 years
2926 Where the right of action arises from moral, corporal The period runs from the day the or material damage appearing progressively or tardily, damage appears for the first time. the period runs from the day the damage appears for the first time.
2929 An action for defamation is prescribed by one year from -1 year the day on which the defamed person learned of the -Must sue cities within 6 months defamation. and give them a notice within 15 days (ex: you fall because of a hole in the sidewalk)
2931 In the case of a contract of successive performance, prescription runs in respect of payments due, even though the parties continue to perform one or another of their obligations under the contract.
Class Action 999 and following Use Code of Civil Procedure
When many people have the same small claim against large legal entity than an individual, on the behalf of an entire class of individuals, can sue
o Must first file a motion of authorisation 1. Must prove that the claims from the class are similar 2. Prove that the facts one raises justify the conclusions one seeks 3. Prove it would not be practical for all the class mates to sue separately or make a suit with multiple claims ϰ͘/ŶĚŝǀŝĚƵĂůƐĞůĞĐƚĞĚŵƵƐƚďĞĂ͚ŐŽŽĚŝŶĚŝǀŝĚƵĂů͛ o Any settlement ŵƵƐƚďĞĂĐĐĞƉƚĞĚďLJĂũƵĚŐĞĂůŽŶŐǁŝƚŚƚŚĞĂƚƚŽƌŶĞLJ͛ƐĨĞĞƐ o Will be a notice before settlement or fees are finalized o Opt-out process, one can renounce their inclusion within the class but there is no need to opt-in o DŽŶĞLJĨƌŽŵƚŚŽƐĞǁŚŽĚŽŶ͛ƚĐŽůůĞĐƚŝƐŐŝǀen to the government to fund class action suits
1003 The court authorizes the bringing of the class action and A. You have to show that the C.C.P. ascribes the status of representative to the member it claims of the members are similar designates if of opinion that: B. Facts that are stated in the (a) the recourses of the members raise identical, motion need to make sense. Show similar or related questions of law or fact; that it`s not a frivolous claim
(b) the facts alleged seem to justify the conclusions C. It has to be impractical for the sought; class representative to ask people to be co-plaintiffs.. lots of people (c) the composition of the group makes the application need to be involved in the class of article 59 or 67 difficult or impracticable; and
(d) the member to whom the court intends to ascribe D. The class representative has to the status of representative is in a position to represent show interest in the class the members adequately.
Quebec is the only place in the world where ƚŚĞŐŽǀĞƌŶŵĞŶƚǁŝůůĨŝŶĂŶĐĞĐůĂƐƐĂĐƚŝŽŶƐƵŝƚƐ͘&ŽŶĚƐĚ͛ĂŝĚĞ aux recours
A settlement has to be approved by the court. They do that so that the lawyers don`t take all the money ĨƌŽŵƚŚĞƐĞƚƚůĞŵĞŶƚ;ŽƌƐŽƚŚĂƚƚŚĞůĂǁLJĞƌƐ͛ĨĞĞƐĂƌĞŶ͛ƚŐƌĞĂƚĞƌƚŚĂŶƚŚĞƐĞƚƚlement value)
Injunctions x Force someone to stop doing or start doing something x Code of Civil Procedure: 751-761 x Interlocutory injunction (2 types/stages) or permanent injunction (3 total) o Interlocutory injunction is immediate (30-40 days) o Provisional interlocutory injunction is super immediate (NOW) Is only valid for ten days o Permanent injunction does need to made immediately Not urgent will last for longer
Injunction͗LJŽƵ͛ƌĞŶŽƚĂƐŬŝŶŐĨŽƌŵŽŶĞLJ͕LJŽƵ͛ƌĞĂƐŬŝŶŐƚŚĞĐŽƵƌƚƚŽŵĂŬĞƐŽŵĞŽŶĞĚŽƐŽŵĞƚŚŝng or to stop someone from doing something
Contempt of court is the only civil action that can lead to jail. (when you ignore an injunction) Example of injunction: I live in a calm area and neighbour decides to start boat repair business which is noisy. You can get the court to order him to stop
If someone withholds records that you have a right to have access to, then you could get an injunction
3 types of injunctions Normal type is a permanent injunction that goes through the regular court process (takes a long time) Interlockatory Injunction: you can͛t afford to wait 2 years to file your injunction. The judge gets an idea from the evidence and makes a quick decision to order the injunction. The balance of hardship needs to be proven. Might not be permanent. Provisional injunctionͶwhen something is super urgent: same criteria but it`s only valid for 10 days.
Seizure
773 (CCP): The plaintiff may, with the authorization of a judge, seize before judgment the property of the defendant, when there is reason to fear that without this remedy the recovery of his debt may be put in jeopardy. o One can effect seizure before judgement if they may be attempting to render themselves judgement proof
Seizure before judgement: when there is an ongoing claim but the person is trying to get rid of his assets so that you can`t get money from him. You need to show that you have a reasonable claim, and that they are trying to make themselves un- suable
Law notes- November 16th 2010
'ĞƚĨŝƌƐƚĨĞǁŶŽƚĞƐĨƌŽŵƉĞŽƉůĞ͙
Charter of Rights and Freedom-- /ĨLJŽƵŐĞƚĂƌƌĞƐƚĞĚ͗ĚŽŶ͛ƚƐĂLJĂŶLJƚŚŝŶŐ͊
Case LawͶŝƐũƵƐƚƉƌĞĐĞĚĞŶƚƐ͘/ƚ͛ƐǁŚĂƚƚŚĞĐŽƵƌƚƐĚĞĐŝĚĞĚŝŶƉĂƐƚĐĂƐĞƐǁŚŝĐŚǁĞƌĞƐŝŵŝůĂƌ͘/ƚ͛ƐƵƉƚŽƚŚĞ lawyers and judges to interpret these cases.
Theoretical definitions need clarification through case law
Doctorine: intellectuals who analyse case law and summarize the prinicples tŚĂƚ͛ƐĂĐƌŝŵŝŶĂůŽĨĨĞŶĐĞ͍Ϯ>ĂƚŝŶǁŽƌĚƐ͗ĂĐƚƵƐƌĞƵƐнŵĞŶƐƌĞĂ
Actus Reus: act of doing (ex me punching)
Mens Rea: intentions while you were doing Actus Reus (state of mind of the person accused or even prior (when referring to conspiracy))
You need to prove: (1) the act of doing and (2) the mental state
Some offenses require a different type of mental state: general intent and specific intent
Some cases require proof of general intent, others: specific intent
General intent: intent to do the act
Specific intent: you have the intent of ACT and CONSEQUENCE of act
džĂŵƉůĞ͗ŝƐƚŝŶĐƚŝŽŶďĞƚǁĞĞŶĂƚƚĞŵƉƚĞĚŵƵƌĚĞƌĂŶĚĂŐŐƌĂǀĂƚĞĚĂƐƐĂƵůƚ;LJŽƵĚŝĚŶ͛ƚǁĂŶƚƚŽŬŝůůa person, but you wanted to hurt them)
Crimes:
Murder: one means to cause death or bodily harm that is known will cause death
1st degree: planned and deliberate
2nd degree: not planned but deliberate
Manslaughter: illegal act that is so dangerous that it is objectively known to kill. Kill someone without the intent to kill.
Criminal negligence: reckless disregard to the life and safety of others
dž͗ĂůĂĚLJůĞĨƚŚĞƌďĂďLJŽŶƚŚĞĨůŽŽƌǁŝƚŚƉŝƚďƵůůƐ͙
Criminals offences vs penal offences Speeding is a penal offence: you remove the mens reaͶyou get conviced without mens rea. But you ĚŽŶ͛ƚŐĞƚĂĐƌŝŵŝŶĂůƌĞĐŽƌĚ͘
If you are arrested by the police, what are the different scenarios in terms of procedure?
Police have 2 choices: keep you in custody OR they give you a promise to appear once they take you to the station (you may have restricted conditions that you HAVE to respect. Not respecting conditions is an offense in itself)
Person needs to appear within court in 24 hours
You may need to schedule a bail hearing. Is the arrested and accused person a danger to society? Should he/she remain in custody?
Detained or on bail
Person has a choice to the ways he can be tried: either by simply a judge or judge and jury.
Few offences can only be tried by judge and jury (murder always)
Few offences can only be tried by judge (less serious like drug possession)
Everything else can be chosen
Advantages of jury: lots more subjectivity (appeal to emotions)
Preliminary enquiry: pre-ƚƌŝĂůǁŚŝĐŚĂĐƚƐĂƐĂĨŝůƚĞƌ͙ĞƐƚĂďůŝƐŚŵŝŶŝŵĂůĞǀŝĚĞŶĐĞĂŶĚƚŚĞũƵĚŐĞĐĂŶsend the case to trial
TrialͶ3 players: judge or judge+jury, prosecution, defense or defense+council
Judge: asses the facts, the one to issue the final decision by applying the law to the facts
Judge+Jury: judge assesses the facts and gives legal guidelines to the jury, jury decides
Procecution: prove that the accused is guilty. Burden of proof: prove what an objective person would say is reasonable. PROVE BEYOND A REASONABLE DOUBT
2 types of evidence: direct and circumstantial
Direct: girl saw dude hit other person
Circumstantial: no one saw, but evidence was left behind (DNA, cell phone examination)
How does the trial work?
WƌŽƐĞĐƵƚŽƌĞdžĂŵŝŶĞƐǁŝƚŶĞƐƐĞƐ͘zŽƵĐĂŶ͛ƚĂƐŬƐƵŐŐĞƐƚŝǀĞƋƵĞƐƚŝŽŶƐ͘
Defense lawyer cross-examines.. you are allowed to be suggestive! ĐĐƵƐĞĚŝƐĞdžĂŵŝŶĞĚďLJĚĞĨĞŶƐĞ͘ĂŶ͛ƚĂƐŬƐƵŐŐĞƐƚŝǀĞƋƵĞƐƚŝŽŶƐ͘
Prosecutor examines. Can ask suggestive questions.
Pleadings: pleading to the judge either than one side or the other is wrong
In a civil case: burden of proof needs to prove BALANCE OF PROBABILITY 51%
Presumption of innocence: innocent until proven guilty
Credibility: what you say sounds more truthful than not. Judges determine the credibility of witnesses, evidence
^ŽŵĞĞǀŝĚĞŶĐĞĐĂŶ͛ƚďĞĂĚŵŝƚƚĞĚŝŶĐŽƵƌƚ͘
You can only prevent evidence that is RELEVANT to the trial. The value of the evidence has to outweigh the prejudice
Hearsay: you SEE, you HEAR
Exemption: words uttered by the accused
SECTION on FUNDAMENTAL RIGHTS
Canadian Charter sets out rights that protect against governmental/police abuse zŽƵ͛ƌĞŶŽƚĂůůŽǁĞĚƚŽďĞĂƌƌĞƐƚĞĚĨŽƌŶŽƌĞĂƐŽŶ
There must be reasonable and probably grounds to proceed to arrest.
Detention: (keeping you in place for investigative purposes) (if you FEEL detained, even psychologically) police need to have reasonable suspicion.
Police are not allowed to act on a hunch
Search and seizure: if you have been arrested they can do a security search. If you are stopped in a car because of alcohol and they smell MJ then they have the right to search the car for substances
SENTENCING: individualize process, except for certain offences which have minimums
Example: loaded firearm is minimum is 3 years\
ĞƉĞŶĚƐŽŶƚŚĞƉĞƌƐŽŶ͛ƐĂŐĞ͕ĞŵƉůŽLJŵĞŶƚ͕ŐŐƌĂǀĂƚŝŶŐĨĂĐƚŽƌƐ;ƐƚƵĨĨƚŚĂƚŵĂŬĞƐLJŽƵůŽŽŬďĂĚͿ͕ Mitigating factors (things that make you look good)
Imprisonment: incarceration or imprisonment in the community
ϯLJĞĂƌƐŽƌůĞƐƐĐĂŶŚĂǀĞŝŵƉƌŝƐŽŶŵĞŶƚĂƚŚŽŵĞ͕ŽƌĨŝƌƐƚƚŝŵĞŽĨĨĞŶĚĞƌƐ͘/Ĩŝƚ͛ƐĂƚŚŽŵĞ͕ƚŚĞƌĞ͛ƐŶŽ conditional release November 18th: Civil liability for architects and engineers
x Compare to the average engineer or architect in the same set of circumstances o The same in certain circumstances can be or not be a fault o Expert witnesses give their opinion to the court as to the conduct of the architect or engineer Each looking for an expert to validate their stance Each expert is relying on a different set of facts x Were a bridge about to collapse and an engineer is called o Then he says we must do this for it not to collapse o It is done but it collapses anyway Is he at fault x Most likely not, it would be the engineers fault who originally designed the structure x There are many rules that apply to the work of architects of engineers o Most important is to know the different rules applicable to each of the subcontractors one works with x Owners will sue everyone when a problem presents itself because they do not know whose fault it really is o Chances are many will offer settlements to simply avoid large legal fees associated court proceeding (deep pocket theory) x Fault reproached to you related to the surveillance of the work of others o Work with companies you know and trust and have references for o Community based projects where individuals are working for less are bound to be disasters o In government projects the architect/engineer must select the lowest qualifying bidder o Must have individual with proper knowledge verifying and working on each of the specific parts of the construction o Must know plans, specs and codes for the various specialities o Must work out conditions of supervision Amount of days on the construction site x Fault relating to the management of the project o Liaison between the owner and the contractors for all progress payments Usually there is a withholding of 10% till the project is complete o Assure the quality of construction by withholding and making progress payments x Architect must make sure that the sub contractors are paid so that there are no hypotheques on the building o Use of joint cheques to remove force work to be properly completed and remove hypotheques from the building x Minutes of construction meeting are key to avoiding legal action o Stating ones concern regarding a certain situation x Faulty design o Fine line between faulty design and faulty construction o Rarely should one work on a project where he will not supervise the work o Use very detailed specifications to limit ambiguities x If the plans one draws for bidders are inaccurate one risks the possibility of getting sued x Either contractual or extracontractual o Hired by a client to make plans and supervise. Something goes wrong, client sues you Contractual o You have many errors in your plans, contractor looses a lot of money because of it and sues you džƚƌĂĐŽŶƚƌĂĐƚƵĂů͕ĚŽŶ͛ƚŚĂǀĞĂĐŽŶƚƌĂĐƚǁŝƚŚƚŚĞĐŽŶƚƌĂĐƚŽƌ o Have to renew your membership even after you retire x Fault, damage and causation o What is the loss? o Causation ʹ prove the fault is what caused the damages o How do you prove an arch. Eng. Commited a fault o Obligation of means ʹ obligation to do what needs to be done in the best way possible, ƌĞƐƵůƚŝƐŶ͛ƚŐƵĂƌĂŶƚĞĞĚ͕ƐĞƌǀŝĐĞƐŝŶƚŚĞďĞƐƚǁĂLJƉŽƐƐŝďůĞ Doctor performing heart surgery, patient dies, not necessarily the fault of the doctor Compare to the conduct of a reasonable architect/eng x Reasons arch/eng can be stuck in lawsuits o Often you did nothing wrong, but someone on the project did o WůƵŵďĞƌĚŝĚŶ͛ƚŝŶƐƚĂůůƚŚŝŶŐƉƌŽƉĞƌůLJ o If there is a loss of immovable work within 5 years, solidarly liable unless you can prove otherwise x Try to work with people you know, worked well in the past, have good recommendations x Set qualifications for experience, equipment x Fault that relates to surveillance of work o Person you were supposed to be supervising makes a mistake x Plans compared to codes/bylaws x Pay only when the work is done x Faulty design of plans and specs x Delay in completion x Fault in choosing a winning bidder o Sometimes bid have to be submitted through an association, relating to plumbing, electricity, over $10,000. Ass says lowest bidder must be given the contract. o Client receives six bids, hire you to check them. Second lowest bidder says lowest bidder ĚŝĚŶ͛ƚƌĞƐƉĞĐƚƚŚĞĐŽŶĚŝƚŝŽŶƐ͕ĐĂŶƐƵĞĐůŝĞŶƚĨŽƌůŽƐƚƉƌŽĨŝƚƐ͕Đůient sues you. For public tender and BSDQ
November 23rd 2010: Charter Rights and Recourses
Charter of Rights and Recourses
x Canadian Charter of Rights and Freedoms: o Real charter enacted in 1982 and applies only between individual and state x Quebec Charter of Human Rights and Freedom: o Not a charter but a law o Can be used individual vs. individual or individual vs. state
Quebec Charter of Human of Rights and Freedom:
x 10: Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on race, colour, sex, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap.
Discrimination defined. Discrimination exists where such a distinction, exclusion or preference has the effect of nullifying or impairing such right. x 10.1: No one may harass a person on the basis of any ground mentioned in section 10. x 11: No one may distribute, publish or publicly exhibit a notice, symbol or sign involving discrimination, or authorize anyone to do so. x 16: No one may practise discrimination in respect of the hiring, apprenticeship, duration of the probationary period, vocational training, promotion, transfer, displacement, laying-off, suspension, dismissal or conditions of employment of a person or in the establishment of categories or classes of employment. Civil status is not something that is to be discussed during an interview x 18.1: No one may, in an employment application form or employment interview, require a person to give information regarding any ground mentioned in section 10 unless the information is useful for the application of section 20 or the implementation of an affirmative action program in existence at the time of the application. x 18.2: No one may dismiss, refuse to hire or otherwise penalize a person in his employment owing to the mere fact that he was convicted of a penal or criminal offence, if the offence was in no way connected with the employment or if the person has obtained a pardon for the offence. x 19: Every employer must, without discrimination, grant equal salary or wages to the members of his personnel who perform equivalent work at the same place. Difference based on experience, non-discriminatory. A difference in salary or wages based on experience, seniority, years of service, merit, productivity or overtime is not considered discriminatory if such criteria are common to all members of the personnel. Non-discrimination. Adjustments in compensation and a pay equity plan are deemed not to discriminate on the basis of gender if they are established in accordance with the Pay Equity Act (chapter E-12.001). x 20: A distinction, exclusion or preference based on the aptitudes or qualifications required for an employment, or justified by the charitable, philanthropic, religious, political or educational nature of a non-profit institution or of an institution devoted exclusively to the well-being of an ethnic group, is deemed non-discriminatory.
1: Every human being has a right to life, and to personal security, inviolability and freedom. Right to die Inviolability relates to abuse search and seizure x 2: Every human being whose life is in peril has a right to assistance. Aiding person whose life is in peril. Every person must come to the aid of anyone whose life is in peril, either personally or calling for aid, by giving him the necessary and immediate physical assistance, unless it involves danger to himself or a third person, or he has another valid reason. x 3: Every person is the possessor of the fundamental freedoms, including freedom of conscience, freedom of religion, freedom of opinion, freedom of expression, freedom of peaceful assembly and freedom of association. x 4: Every person has a right to the safeguard of his dignity, honour and reputation. x 5: Every person has a right to respect for his private life. x 6: Every person has a right to the peaceful enjoyment and free disposition of his property, except to the extent provided by law. x 7: A person's home is inviolable. x 9: Every person has a right to non-disclosure of confidential information. Disclosure of confidential information. No person bound to professional secrecy by law and no priest or other minister of religion may, even in judicial proceedings, disclose confidential information revealed to him by reason of his position or profession, unless he is authorized to do so by the person who confided such information to him or by an express provision of law.
Duty of tribunal. The tribunal must, ex officio, ensure that professional secrecy is respected. x 49: Any unlawful interference with any right or freedom recognized by this Charter entitles the victim to obtain the cessation of such interference and compensation for the moral or material prejudice resulting therefrom.
Punitive damages. (Punitive damages are for intentional and ill founded conduct) In case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to punitive damages.
Rights:
o Defence o Council o Presumed not guilty o Tried in the language of choice o Right to information of charges o Right to an interpreter x 30: Every person arrested or detained must be brought promptly before the competent tribunal or released. x 33.1: No accused person may be compelled to testify against himself at his trial. x 37: No accused person may be held guilty on account of any act or omission which, at the time when it was committed, did not constitute a violation of the law. x 37.1: No person may be tried again for an offence of which he has been acquitted or of which he has been found guilty by a judgment that has acquired status as res judicata.
Legal Rights of the Canadian Charter:
x 7: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
x Know your rights, bring out the best in individual rights x Quebec under two charters o Quebec Charter of Human Rights and Freedoms o Canadian Charter of Rights and Freedoms x Differences: o Canadian charter protects the individual against the state Discrimination based on sexual of orientation, definition of spouse in pension law, preventing an individual from benefitting from a right You contesting/invalidating a law o Quebec Charter ʹ individual VS province. AND individual VS individual Reputational, discrimination, against another individual or company x Minority language education x Right to strike x Police power x Right to life x Right to abortion x Constitutional law ʹ if it passes certain tests, it supercedes all laws o ͞^hW Z>t͟ x Quebec charter ʹ quasi-constitutional law, can freeze other laws, except if the law has notwithstanding clause o Bill 101 x Drafted in a general way so it can be interpreted by the courts x If ƚŚĞĐŽƵƌƚĚĞĞŵƐŝƚĚŽĞƐŶ͛ƚŝŶĨƌŝŶŐĞĂĐŚĂƌƚĞƌ x If it does infringe a charter right ʹ is the law a reasonably limit to be imposed in a free and democratic society o Is the law well balanced with existing social values x OAKES test o Questions to see/weigh the balance of individuals VS society x Kirpan knife thing ʹ was overthrown by Quebec charter x Freedom of press o Injuctions, remedies??? o If rights to freedom or press/freedom of information outweigh people being attacked x 2B. Freedom of thought, expression, other media of communication o Irwin toys ʹ Québec made a law to prevent publicity addressed to kids, Irwin protested right to advertize, 2B. Lost case. Deemed important to protect kids, most vulnerable o o x Can have a whole group of people, company, or individual sue government to change the law x Mobility rights ʹ Canadian citizen has the right to remain in, move around, leave x Sue ʹ Louis-ŐŚĞƌŝŐƐĚŝƐĞĂƐĞ͕ĚŽĞƐŶ͛ƚǁĂŶƚƚŽŐĞƚƉĂƌĂůLJnjĞĚĂŶĚĚŝĞ͕ǁĂŶƚƐƚŽĚŝĞĨŝƌƐƚ o Challenging 24b. Of criminal code for assisted suicide x Abortion ʹ x Theraputic abortion clinics x Robert latimer ʹ mercy killing x Section 10 ʹ your rights when you get arrested o Informed promptly of the reasons o Attain counsel x Section 11d innocent until proven guilty x Section 12 ʹ cruel and unusual punishment x Section 15 (CC) 10 (QC) READ AND COMPARE equality rights, race, colour, religion, sex.or., age x Section 20 ʹ distinction based on aptitudes o Apply to be a firefighter when you are 75, declined, sue for age desc, ACTAULLY section ϮϬ͕ĚŽŶ͛ƚŚĂǀĞƚŚĞĂƉƚŝƚƵĚĞ x Remedies o What happens if one of your rights in infringed upon under CC o Section 24 o Can freeze a law (while being looked into, fixed), blow up the law, reading down of the law (cut out a piece that causes problems), read into a law
Nov 25 ʹ Public ʹ Private Partnership
x Government enter into partnership with private partner o Company often created for that project o Special Purpose Vehicle (SPV) o Concessionaire x Partnership agreement o Maintenance, rehabilitation, construction x Private partner enters into separate contract with Design/build contractor, Operation and Maintenance contractor (after) o tĂŶƚƐƚŽŵĂŬĞƐƵƌĞŚĞĚŽĞƐŶ͛ƚŚĞŝƐŶ͛ƚŽďůŝŐĂƚĞĚ o Flow down obligations to contractors o Just provides interface, money x Lender ʹ usually banks o Can step in if private partner defaults x Independent engineer o Unusual role o Both public and private pay o Checks at milestones
Nov 30 - ?
x Punitive damages x ŽŶ͛ƚƚƌLJĂŶĚĐŚĞĂƚŝŶƐƵƌĂŶĐĞ x Construction bonds o Have to know how to council your clients o Delays cost money o Clients want risk out of the way, how to eliminate o Construction bond ʹ written agreement whereby a surety bonding company guarantees that the principle general contractor will fulfill his obligations for the obligee. o Insurance company ʹ some companies specialize in bonds/surety o Ask general contractor to go see one of these companies. Company will take care of ŐĞŶĞƌĂůĐŽŶƚƌĂĐƚŽƌ͛ƐŽďůŝŐĂƚŝŽŶƐŝĨŚĞĐĂŶ͛ƚĨŝŶŝƐŚŝƚ͘ o Performance bond is a type of construction bond. WHAT IS A PERFORMANCE COMPANY?
/ŶƐƵƌĂŶĐĞďƵƌĞĂƵŽĨĂŶĂĚĂ͕ŵĂŬĞƐƵƌĞƚŚĞLJ͛ƌĞŽŶƚŚĞ list
For a bond to be valid: The company that issues the bond gives it to the GC and the GC has to sign it. And the client has to have a copy. If the contract is not delivered to the obligee, then the bond is not valid.
ŝĨĨĞƌĞŶĐĞďĞƚǁĞĞŶŝŶƐƵƌĂŶĐĞĂŶĚďŽŶĚŝŶŐ͘/ŶƐƵƌĂŶĐĞŝƐďĂƐĞĚŽŶƌŝƐŬ͙ŝĨĂƌŝƐŬƚƵƌŶƐŝŶƚŽĂƌĞĂůŝƚLJ͕ƚŚĞ insurance pays.
Bonding: 3 people GC, client and insurance/bonding company. But with the bond, the insurance company will come back to you to reclaim the money from the GC.
o 4 TYPES OF BONDS o Bid bonds o Performance bonds o Labour and material payment bonds o Construction lien bonds o For a bond to be valid: The company that issues the bond gives it to the general contractor, has to sign ŝƚ͕ŽǁŶĞƌŚĂƐƚŽŚĂǀĞĂĐŽƉLJŽĨŝƚ͘/ĨŽǁŶĞƌĚŽĞƐŶ͛ƚŐĞƚŝƚ͕ ĐŽŶƚƌĂĐƚŝƐŶ͛ƚǀĂůŝĚ͘
Bid bonds ʹ avoid frivolous bids Selection based on price General contractors cut price, then try to raise it based on lack of clarity Sign on price, surety will pay the difference between lowest and next lowest bid o Validity of bonds usually 30-60 days Have to sign it
Performance bonds-- ĐŽŶƚƌĂĐƚǁŝƚŚĂŶŝŶƐƵƌĂŶĐĞĐŽŵƉĂŶLJ͘/ĨƚŚĞ'ĚŽĞƐŶ͛ƚƚĂŬĞĐĂƌĞŽĨŚŝƐŽďůŝŐĂƚŝŽŶƐ͕ then this company will take care of getting the job done.
-If the GC goes bankrupt, if you have a bond, then you can pull that bond. The insurance company that has that bond will pay for the completion of the work.
Wording usually very different Pull one of the bonds, always do it in writing o Labour and Materials x I will pay you when I am paid, if thats in there, cannot pull on bonds x Changing scope of project can invalidate bonds x Lien bonds ʹ hypothecs,
Labor and Mateiral Payment Bond: General contractor fails to pay suppliers. Generally public work. ŚĞĐŬĨŽƌĂƉĂŝĚǁŚĞŶƉĂŝĚĐůĂƵƐĞ͘/ĨƚŚĂƚ͛ƐƚŚĞƌĞ͕ƚŚĞŶLJŽƵĐĂŶ͛ƚƉƵůůŽŶƚŚĞďŽŶĚ͘ hƐƵĂůůLJLJŽƵŐĞƚĂĐŽŵďŝŶĂƚŝŽŶŽĨďŽŶĚƐ͗ƉĞƌĨŽƌŵĂŶĐĞнŵĂŝŶƚĞŶĂŶĐĞǁŝƚŚůĂďŽƵƌĂŶĚŵĂƚĞƌŝĂů͙
Lien Bonds: You can get liens off your property. Once the property is constructed, there are no encumbrances. The GC has an obligation to ensure that the project is free of all encumbrances and liens.
Example: Health Care facility got a lien placed on it. The lien can be taken off the property if a lien bond was signed. Free the property from liens which would otherwise compromise the property. Prevents sub-contractors and GC from holding the property hostage.
How do you get the GC to get the bonds? Put it in the tenure documents.