Schneider Attorneys/Avocats

11/02/2019

FREEDOM TO TESTATE

In the recent case of Spence, a Superior court judge, ruled that a pastor of black origins could not disinherit his daughter on the sole grounds that she had given birth to a mulatto child since his choice violated public orders and the Charter of Rights and Freedoms.

The decision rendered was vary audacious on behalf of the presiding judge since the last will of the pastor mentioned that he disinherits his daughter since he had lost contact with her for many years. There was absolutely no mention of the mulatto child.

Back in 2002, the pastor had cut his contact with his daughter mentioning to her that no child of a white man would ever enter his house. The judge decided that the reason given by the pastor to disinherit his daughter was based on the pretext to cover up his racist motives.

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In the recent case of Spence, a Superior court judge, ruled that a pastor of black origins could not disinherit his daughter on the sole grounds that she had given birth to a mulatto child since his choice violated public orders and the Charter of Rights and Freedoms.

10/28/2019

THE AIRBNB PHENOMENA

The Airbnb phenomena, subleasing and Bill n°67: An Act mainly to improve the regulation of tourist accommodation and to define a new system of governance as regards international promotion

A. Introduction

Airbnb is an online platform to rent dwellings which has been in operation since 2008. Given its immense popularity, nowadays Airbnb is an enterprise aspiring to reach revenue projections nearing twenty billion dollars. As a novel service that offers an intriguing alternative to conventional services provided by the hotel industry, it goes without saying that this platform’s popularity among tourists has raised a slew of questions and concerns thus justifying the establishment of a regulatory framework.

In order to address this problem, National Assembly of Québec drafted Bill n°67: An Act mainly to improve the regulation of tourist accommodation and to define a new system of governance as regards international promotion (hereinafter the “Airbnb Act”) which came into effect on April 15th, 2016. As evidenced by its name, this act aimed to modify two (2) existing acts:

1) The Act respecting tourist accommodation establishments (chapter E-14.2) (hereinafter designated as the “Act”); and

2) The Act respecting the Ministère du tourisme (chapter M-31.2).

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Airbnb is an online platform to rent dwellings which has been in operation since 2008. Given its immense popularity, nowadays Airbnb is an enterprise aspiring to reach revenue projections nearing twenty billion dollars.

10/24/2019

MY LEASE, MY MONEY!

Consider the following: you are the owner of a building and are ecstatic to have a steady revenue source without hassle. After all, what can be simpler than managing a building? Hold that thought until you read the following:

Two individuals, Bill and Tom, approach you to rent a unit in your building in hopes of setting up their future company. However, since they have yet to incorporate their business, you draft the lease directly under their name.

They promptly pay the deposit, settle in, and commence their business operations. Everything is moving along smoothly until you realize that a year has passed and you haven’t received a single rental payment from Bill and Tom.

In fact, your lessees never intended to pay any rent since their business plan fell through and they no longer need the commercial space. Having always acted in good faith, you proceed to contact these individuals in hopes of receiving your due, but are swiftly turned aside at every occasion.

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Consider the following: you are the owner of a building and are ecstatic to have a steady revenue source without hassle. After all, what can be simpler than managing a building? Hold that thought until you read the following...

10/23/2019

THINK TWICE BEFORE DEFRAUDING AN ESTATE!

In a Human Rights Tribunal decision titled Commission des droits de la personne et des droits de la jeunesse (Albany Duhaime) vs. Satgé, the Honorable Justice Yvan Nolet condemned a couple who took advantage of a distraught widow by funneling her assets to their own accounts.

While the Late Albany Duhaime (hereinafter the “Deceased”) entrusted Mr. and Mrs. Satgé, his presumed friends, with the administration of his finances given his declining health (he was suffering from Alzheimer’s disease), the couple acted in bad faith and ultimately stripped the Deceased of over a million dollar in assets.

Justice Nolet deemed that the couple exploited the Deceased’s vulnerability, the whole in violation of article 48 of Quebec’s Charter of Human Rights and Freedom which reads as follows:

“Every aged person and every handicapped person has a right to protection against any form of exploitation.

Such a person also has a right to the protection and security that must be provided to him by his family or the persons acting in their stead.”

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In a Human Rights Tribunal decision titled Commission des droits de la personne et des droits de la jeunesse (Albany Duhaime) vs. Satgé, the Honorable Justice Yvan Nolet condemned a couple who took advantage of a distraught widow by funneling her assets to their own accounts.

10/18/2019

SETTLING AN ESTATE

Settling an estate is not without its challenges as a liquidator must abide by his legal duties to avoid triggering his personal liability for the debts of the deceased. Thus, a liquidator must show great patience and diligence in his administration of the estate.

The liquidator is usually appointed by a testamentary disposition. However, in the absence of a will, the office of liquidator devolves of right to the heirs. In turn, pursuant to article 785 of the Civil Code of Québec (hereinafter the “C.c.Q.”), the heirs may designate a liquidator by way of majority vote.

The following is a succinct rundown of a liquidator’s responsibilities regarding the settlement of the estate entrusted to him.

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Settling an estate is not without its challenges as a liquidator must abide by his legal duties to avoid triggering his personal liability for the debts of the deceased. Thus, a liquidator must show great patience and diligence in his administration of the estate.

10/17/2019

ACTION IN PASSING OF TITLE

What does it mean an action in passing of title?

When a buyer pays for the immovable property, the seller transfers the ownership of the property to the buyer and thus there is a “passing of title”. However, what if the buyer decides not to buy the property or the seller refuses to transfer the title to the buyer?

With the sale of a property, it is not infrequent that a dispute will emerge between the parties.

The action in passing of title is available to anyone who is prejudiced whether it is the buyer or seller that, following the promise to purchase or signed agreement, refuses to conclude the transaction. Therefore, as soon as the conditions of an accepted promise to purchase are satisfied in valid form, the parties contractually bind themselves to sign the deed of sale and transfer the ownership of the property.

A real estate broker can also be impacted by his real estate commission in the event the transfer of title does not occur.

Knowing that a promise to purchase generates contractual obligations, the failure to respect these obligations, without a valid cause, corresponds to a refusal to execute the agreement.

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When a buyer pays for the immovable property, the seller transfers the ownership of the property to the buyer and thus there is a “passing of title”. However, what if the buyer decides not to buy the property or the seller refuses to transfer the title to the buyer?

10/14/2019

ESTATE PLANNING 101

Death is the only guarantee in life and the final resting place for an individual. However, life continues for the family, friends, and other dependents of a deceased. Therefore, preparations are necessary to avoid complications, stress and undue hardship to the loved ones around you. Here are some recommendations which may help your succession overcome these difficult times.

1) Make sure your will is current, complete, unambiguous and equitable

Make sure your will is current, complete, unambiguous and equitable to truly represent your last wishes. It is recommended to review your will with a notary, preferably in the province of Québec, as notaries are trained to foresee issues and are in a position to recommend adjustments tailored to your situation. This is even more important in cases of blended families, or when you expect that one of your heir will disagree with your wishes.

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Death is the only guarantee in life and the final resting place for an individual. However, life continues for the family, friends, and other dependents of a deceased.

10/10/2019

HOW TO PREPARE FOR AN APPOINTMENT WITH YOUR LAWYER

Clear picture of the lawyer’s role and your expectations

In order to optimize the services he will be asked to render, the lawyer likes to know exactly what is expected of him.
Prepare clear instructions for your lawyer.
Questions

Prepare a list of questions you want to ask your lawyer so that you can share your concerns.
Chronology of events

Have a detailed list of all the events related to your case, in chronological order.
Make sure this list is as accurate as possible so that your lawyer can understand all the details of your case.
Proof of identity

Bring with you at least one proof of identity, from you or from the person (legal or natural) for whom you are acting.
The Barreau du Québec requires lawyers to identify the client as follows:
in the case of a natural person:
name;
personal or business address, if applicable;
personal or business telephone number, if applicable;
occupation;
in the case of a legal person:
name;
address;
telephone number;
certificate of incorporation or identification number and the place of its issuance, if applicable, and the general nature of its activities....

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In order to optimize the services he will be asked to render, the lawyer likes to know exactly what is expected of him. Please read the following article to prepare for your appointment with your lawyer.

10/07/2019

WHAT IS COMPELLING POSSESSION THROUGH ACQUISITIVE PRESCRIPTION?

Generally speaking, “property, whether corporeal or incorporeal, is divided into immovables and movables” (C.c.Q., art. 899). An essential principle which derives from property law is the prescription of immovables and movables. This concept branches out in 2 subcategories: acquisitive and extinctive prescription.

‘’Extinctive prescription is a means of extinguishing a right owing to its non-use or of pleading a peremptory exception to an action,’’ it mainly targets personal rights and right of action (C.c.Q., art. 2921). As an example, it would mean that a person would lose his or her right to should they exceed the delay allowed by the law to take legal action.

An essential principle which derives from property law is the prescription of immovables and movables. This concept branches out in 2 subcategories: acquisitive and extinctive prescription.

10/05/2019

SHOW ME THE MONEY!… WHEN CAN I RECEIVE MY INHERITANCE?

Show me the money!… When can I receive my inheritance?

Are you a Liquidator?
I want to accept my role as Liquidator-What do I do?
How do I make an inventory and render an accounting of the assets, debts and expenses?
I want to renounce my role as Liquidator-What do I do?
How do I know if the Estate is Solvent?
Are you an heir?
Can I receive a partial or advance payment from the Estate?
Payment of debts and particular legatees
What do I do if the Estate is insolvent?

Duties of Liquidator of an insolvent estate
Payment of debts towards creditors of an insolvent estate
Picture the following scenario: The last will and testament of the deceased has been read and you have received a copy of the will searches from both the Chambre des notaires and the Barreau du Québec. You learn that the deceased has appointed you as an heir to his estate.

When there is insolvency with respect to legatees, it means that the deceased's assets are sufficient to pay debts, but not sufficient to satisfy all legatees.

10/05/2019

5 THINGS TO KNOW ABOUT YOUR ENTITLEMENT TO YOUR SHARE OF THE ESTATE: DEBTS, CREDITOR SUPPORT, AND ADVANCE PAYMENTS

Settling an estate is not without its challenges as a liquidator must abide by his legal duties to avoid triggering his personal liability for the debts of the deceased. The most important debts, creditor support, and advance payments to acquit are as follows:

Debts and legatees:
If the property of the estate is sufficient to pay all the creditors and all the legatees by particular title and if provision is made to pay the claims that are the subject of proceedings, the liquidator pays the known creditors and known legatees by particular title as and when they present themselves.
Examples include loans, income tax, rent, etc.

The liquidator pays the ordinary public utility bills and pays the outstanding debts as and when they become due or according to the agreed terms and conditions.
Examples include service providers such as: telephone, internet, electricity, credit cards, etc.

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The word "codicil" is an expression from notarial practice, referring to provisions amending an earlier will or containing clarifications or new provisions that were not in the original deed.

09/28/2019

The 21 suggestions for success sits on the wall in my house .

Although it is not always easy to follow, I truly believe that the 21 suggestions for success speak the truth.

Let this post be an inspiration to us all to be better people to ourselves and to others.