Question

These questions of Business law

1.what steps should an employer indertake to protect confidential information?

2.what is a periodic tenancy? what special problems come into play with periodic tenancies that are not present with term leases.

3.what is meant by an easement? why is sn easement called a lesser interest in land?

Thank you

Answer 1

1.ANSWER

Though your business may not have "secret recipes" for cola drinks or fried chicken, your business undoubtedly has some process or information that it believes gives it an advantage over its competitors. This confidential information may take many forms such as a customer list that has been created through the years at considerable expense and effort; a product design that a business's competitors do not have; or a pricing formula that generates greater profits. Importantly, if a business takes certain steps to keep this information confidential, the law will help protect it from becoming public information and getting into the hands of competitors. On the other hand, if a business does not take the correct steps your competitors are free to gain access to your information and use that information to their advantage.

The steps an employer should undertake to protect confidential information are mentioned below:

The steps range from simple to more complex. However, from a legal perspective all of these steps are recognized as necessary in order to protect the confidentiality of your information.

1. Proper labelling. Under applicable laws, if a company does not take sufficient steps to treat its own confidential information as confidential, legal protection may be lost. Labelling confidential information also serves as a practical disincentive for someone to abuse confidential information. Labelling can appear on electronic and hard copy documents. A label could be: " Confidential information and property of ABC Corp. No part of these materials may be copied, used or disclosed except with written permission of ABC Corp. "

2. Insert non-disclosure provisions in employment agreements. It is a best practice that employees who have access to confidential information sign an employment contract which contains non-disclosure provisions. If a company has confidential information which is particularly sensitive, it should be clearly identified in the contract. The employee should be obligated to return confidential information when employment terminates. Although it can be very difficult to enforce non-competition provisions in an employment contract, confidentiality provisions are generally legally enforceable. Although the law imposes certain obligations of confidentiality on employees, confidentiality provisions in an employment contract make it abundantly clear that the employer is serious about confidentiality, and therefore help prevent problems from a legal and practical perspective.

3. Check out other agreements for confidentiality provisions. As a matter of day-to-day business, companies enter into contracts with service providers including consultants and suppliers of IT services (such as hosting and software implementation). Many standard form contracts which are prepared by service providers do not contain any confidentiality provisions in favour of the customer (or contain very "weak" provisions). In these circumstances, it is best to sign a separate confidentiality or non-disclosure agreement (commonly known as an "NDA") with the service provider, or "beef up" the confidentiality provisions in the service provider's contract.

4. Limit access. A company with confidential information should be careful to limit access to confidential information to only those employees who have a "need to know". By doing so, the company strengthens its legal position and also helps establish a practical "roadblock". Hard copies of documents should be kept locked, and electronic copies should be password protected. Computer access should be monitored. The monitoring of "suspicious activity" may help in a legal claim against a departing employee should the need arise.

5. Add a confidentiality policy to the employee handbook. A company's employee handbook should contain a confidentiality policy that spells out procedures for dealing with confidential information. For example, the policy should require that documents that are to be destroyed be shredded (instead of simply being put in the garbage or recycling bin). Of course, the written policy must be consistent with the confidentiality provisions in employment agreements and other legal obligations.

6. Exit interview for departing employees. During an exit interview, the employee should be reminded to return all confidential information which is in tangible form, and should be reminded of his or her future obligations regarding improper use and disclosure of confidential information to future employers and other third parties.

7. Consider notifying the new employer. If a company is particularly concerned about a departing employee working with a new employer who is a competitor, a letter may be sent to the new employer that outlines the former employee's legal obligations regarding confidential information of the former employer. The letter can often have a "legal chill effect" on any competitor who wishes to actively or implicitly induce a new employee to disclose confidential information of a former employer.

8. Review carefully NDAs from third parties. Companies are often presented with "standard form" NDAs from third parties. After a while, they can all look the same but sometimes there are important differences. For example, an NDA may require that in order for information to qualify as confidential information, it must be identified as such in writing at the time of disclosure, and if the disclosure is made orally, the confidential nature of the information must be confirmed in writing within a certain period of time after disclosure. This obligation may be quite onerous for a company that discloses confidential information, and therefore it can easily overlook the requirements of the NDA. The best approach for a company which is disclosing confidential information is that the NDA provides that all non-public information that is disclosed is confidential regardless of whether it is marked confidential and regardless of the form in which it is disclosed.

9. Watch out for the term. NDAs often contain a time period after which the confidential information is no longer subject to the restrictions in the agreement. The time period may be too short or inappropriate and a company should consider this point carefully when it signs an NDA. It may be more appropriate to make obligations regarding confidential information perpetual (if permissible under applicable laws).

10. Keep watch over your visitors. Where appropriate, visitors to a workplace should sign a confidentiality undertaking upon arrival. In addition, they should be escorted at all times and should be kept away from areas where they may be exposed to confidential information (unless they have a "need to know").

Conclusion

The steps outlined above are all fairly easy to implement. The more of these steps that a business undertakes, the more likely its employees will understand that certain information is confidential, and the more likely a court will help a business protect the confidential information.

Finally, a business should review the steps it has taken to protect its confidential information on a yearly basis. Protections that are in place during one year may need to be updated the following year due to developments in the law and changes within the business. Implementing the steps above will help a business protect its confidential information and maintain its competitive advantage.

2.ANSWER

Periodic tenacy defination

A periodic tenancy is a tenancy that continues for successive periods until the tenant gives the landlord notification that he wants to end the tenancy. This tenancy can be created expressly, or by implication, such as when a lease does not mention the duration of the tenacy, but arrangements were made for payments to be made at certain intervals. For termination of a periodic tenancy, notice must be given at least equal to the length of the period of the tenancy itself, unless the parties agree to different terms for termination.

Some of the problems come into play with periodic tenancies that are not present with term leases are mentioned below:

• As I already experienced in a harsh life lesson, putting good tenants on periodic tenancies is risky because they can unexpectedly vacate pretty quickly.
• Tenants typically only need to give one month’s notice when they’re on a periodic tenancy, which may not allow a comfortable amount of time for the landlord to find new tenants if the current tenant gives minimal notice. The issue can become extra stressful if the property requires cosmetic work in order to attract new tenants.
• Over the years, new regulations have been passed through into the BTL industry (e.g. Tenancy Deposit Scheme). These new regulations should be mentioned in the tenancy agreement as statutory clauses. Point being, if you allow a contract to continually be periodic for a long period of time, it can slowly become out of date. It’s important to keep tenancy agreements inline with the law, so the T&C’s are always clear in black and white.
• Finding new tenants can be expensive, so if you’re a landlord that prefers using 6 months fixed term agreements, and always allows the tenancy to go periodic, you’re leaving a big window of opportunity for a high tenant turnover rate. It can often be more cost-effective to fix tenants for long term. Of course, that’s largely dependent on your own judgement to decide on whether you have good tenants or not that are worth the commitment.

Conclusion

I know many landlords, including myself, favour periodic tenancies because of the flexibility. I generally like things to dangle and have wiggle room. But it’s important for landlords to remember that the flexibility also applies to tenants. Once the tenancy becomes periodic, tenants have the ability to vacate quickly, and leave the landlord with a lot of work to do in a short space of time, especially if the property needs to be repaired in order to become presentable. Finding good tenants isn’t always the easiest, cheapest or quickest of processes.

3.ANSWER

Understanding Easement

Although you might bristle at the idea of letting someone else trespass on your land, most properties have easements of some kind. They can be used for roads or given to utility companies for the right to bury cables or access utility lines. Landlocked homeowners sometimes pay for easements to cross someone else's land to reach their homes or other destinations. These payments can be made once, annually, or on an agreed-upon schedule. Easements can also expire after a certain time period.

Land containing an easement is sometimes referred to as a "servient estate." When you are looking to purchase a property, look for easements in the public records, especially if you plan to put in a swimming pool or erect an additional structure. A property owner can't build on top of an easement.

Easements can go into effect in various ways, and the exact rules vary by state and municipality. Utility easements, for instance, may be written into the property deeds. Some easements are simply implied by necessity—if your neighbor cannot access their property without passing through yours, for example. Sometimes, a person can obtain an easement by "adverse possession," simply by using another's property for a certain period of time. Others must be expressly granted in writing.

Types of Easements

The most common type of easement found in residential neighborhoods is for public utilities. You might have an easement that allows a city electrical worker to trespass on your property to reach an electrical pole if you have one in your backyard. This type of access easement would most likely not be specifically defined.

You should know where underground utilities are located, especially if you plan to excavate any portion of your land. Not every sewer line runs through the street; it's common to find a sewer line or cesspool in a backyard in older cities. You can call a city hotline in some municipalities and the utility division will send out a city worker to stake your property with flags, depicting the types of utilities that are underground.

Appurtenance Easements

Other types of easements might involve a shared driveway or path that could be the only access point from the road to a home behind your property. These types of easements are often permanent and transfer with sale of the property (they're also called appurtenance easements).

Negative Easements

A negative easement prevents something from occurring, such as planting a copse of trees that would block a homeowner's television satellite signal or even a view that contributes to the value of the property.

Easements by Prescription

Easements by prescription are acquired by "hostile, open, and notorious use." Prescriptive easements can be claimed by a person who continuously travels across a parcel of land owned by another without the owner's permission or consent. Think of it as a version of squatter's rights.

Prescriptive easements are generally found in more rural settings, not in an urban environment.

Easement called a lesser interest in land because of following facts:

In essence, an interest in land is a right (or a "bundle" of rights) that someone has in, against, under or over - or with respect to - a parcel of land. If the person holding the interest in land is the current owner of the land itself, then the "interest" means "simply" ownership of that land. There are many interests in land which do not rise to the level of "ownership", but which give meaningful - and often valuable - rights or entitlements to the holder thereof. Common examples are:

1. if I have a right to possess/occupy your land, my interest is a lease;
2. if I have a right to pass over and upon your land to have access to some portion of your land or some other land near or adjacent to your land, my interest is an easement;
3. if I have a charge on your land to secure a debt you owe me, thereby entitling me to sell (or acquire ownership of) your land if you don't repay your debt to me, my interest is a mortgage; and
4. if I have a right to enter your land and remove resources therefrom, for example, minerals, hydrocarbons, stone and gravel, soil, non-domestic wildlife (and vegetation), my interest is a profit a prendre.

What is particularly significant about these rights and interests is that, where ownership of your land changes hands, I will continue to be legally entitled to - and be able to continue to use or exploit - my interest in your land, notwithstanding that you are no longer the owner thereof. In most cases, my interest in the land will continue to exist indefinitely, notwithstanding multiple changes in the ownership thereof.

The concept of an interest in land and its being of indefinite length, notwithstanding changes of ownership of the land from which the interest is derived, was developed in the English common law system over many hundreds of years. However, an interest in land is to be contrasted with a "mere" contractual right existing between the holder of the right and the other party who grants the right in relation to the other party's land. If you grant me permission to come onto your land for a limited purpose, and in particular, expressly or impliedly, for a limited period of time, my right is not categorized as an interest in land, but rather is considered to be a "license". Or a mere contractual right which exists between me and you, but which is not capable of being enforced by me against a subsequent owner of your land. Licenses may also be held to exist - as opposed to interests in land - where there is some failure to meet all of the particular legal requirements required by law to constitute an interest - or a particular type of interest - in land. So, for example, were you purport to grant me an easement for access to or over your land, but for whatever reason, an easement is not considered to have been legally created, your grant to me may be held to be a license which binds you, but which would not bind your successors in the ownership of your land.

Under modern systems of land ownership (in Manitoba, primarily constituted under/by the Real Property Act (Manitoba)), in order to effectively bind successive owners of land burdened with an interest in land, the holder of that interest must register a notice (typically, although not always a "caveat") against the title to the burdened land. Failure to register such notice may result in the holder of the interest losing it, insofar as subsequent owners are concerned. So, for example, where you give me a land interest with respect to your land, but I fail to record notice of it against your title, I may* not be able to enforce that interest against someone to whom you sell the land and who acquires it without any knowledge (or "notice") of the existence of my easement.

Traditionally, the common law has held that:

1. rights that entitle the holder to own, possess, occupy, pass over or upon land or to take or remove something therefrom, or to restrict/prohibit the use of land, or to sell land to recoup debt claims - in other words, rights that give the holder a direct, physical "connection" to the land - are interests in land; and
2. rights which entitle the holder to ("merely") obtain value (usually monies) from the holder of an interest in land are not themselves interests in land. Examples would be an entitlement of a landlord to the payment of rent owed by a lessee of land to it and the right to payment of a royalty (or a portion thereof) which is owed by the holder of a profit a prendre who undertakes to pay monies to the royalty holder.

Thus while the holder of a right to payment of the types referred to in paragraph (ii) immediately hereinabove ("Payment Right") could enforce that right against the party that contractually granted it, it could not treat its Payment Right as a land interest, record notice of it against the title to the underlying land or enforce it against any subsequent owner. Or if it succeeded in recording notice on title, a court would in most cases, subsequently hold that the registration was void (in effect, meaningless) and the registration would not bind a successor in title to the holder of the profit a prendre itself. In so holding, the common law Courts have on occasion additionally pointed out that just because the parties to the creation of a Payment Right agreed between themselves that the Payment Right is or is to be treated as a land interest, does not make it so.