Author Archives: Jonnette Watson Hamilton

About Jonnette Watson Hamilton

B.A. (Alta.), LL.B. (Dal.), LL.M. (Col.). Professor Emerita. Please click here for more information.

When is a registered joint tenancy not a joint tenancy and not even co-ownership?

PDF version: When is a registered joint tenancy not a joint tenancy and not even co-ownership?

Cases Considered: Lutz v Lutz, 2012 ABQB 300; Lemoine v Smashnuk, 2008 ABQB 193

On a statutory application to terminate co-ownership under Part 3 of the Law of Property Act, RSA 2000, c L-7, can a court conclude that there was no co-ownership?

Lucas Lutz wanted to buy a house but did not qualify for a mortgage. Lucas’ brother, Eric, agreed to help. The deal was structured so that title to the house was transferred to Lucas Lutz and Eric Lutz as joint tenants. Two mortgages used in financing the purchase were granted by both Lucas and Eric; one was paid off but the other still secured an outstanding balance of approximately $90,000. Lucas made all of the subsequent mortgage payments. Lucas and Eric both lived in the house and paid utilities, but Eric moved out after 7 years, in 2006. Up until 2006, Eric also made payments to Lucas that Lucas characterized as rent and Eric characterized as contributions to the mortgage payments. There was no written agreement between Lucas and Eric.

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The Unusual Appointment of an Investigator under the Condominium Property Act

PDF Version: The Unusual Appointment of an Investigator under the Condominium Property Act

Case considered: Morris v Condominium Corporation No. 074 0215, 2012 ABQB 265

This April 23, 2012 decision by Master Lorne Smart appears to be the first to consider the appointment of an investigator under section 67(2) (a) of the Condominium Property Act, RSA 2000, c C-22. Section 67 allows a court to grant a variety of remedies if the court is satisfied that there has been “improper conduct” as defined in subsection 67(1) (a). Although many interested parties have used section 67 to seek injunctions, compensation and other remedies, the appointment of an investigator to review the improper conduct and report to the court is not a popular option. This decision is interesting for what it tells us about when it is appropriate to seek this particular remedy, when a court will exercise its discretion in favour of appointing an investigator, and what qualities make a particular person an appropriate investigator.

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Kangaroo-ism

Document considered: Wildrose Platform on Justice, Policing and Human Rights

PDF Version: Kangaroo-ism

My colleague, Jennifer Koshan, has written a serious ABlawg post on “The Alberta Election and Human Rights,” pointing out numerous problems with the Wildrose platform on Justice, Policing and Human Rights. The purpose of this post is much narrower and less serious, and that is to follow up on the “kangaroo courts” insult in the Wildrose policy statement.
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Who Bears the Loss for Converted Security Deposits?

PDF version: Who Bears the Loss for Converted Security Deposits?

Case considered: Equitable Trust Company v Lougheed Block Inc., 2012 ABCA 87

This judgment is one of several arising as a result of foreclosure proceedings taken with respect to the historic Lougheed Building at 604 – 1 Street S.W. in Calgary. In this March 2012 decision by the Court of Appeal the focus is on the security deposits that the former owner of the building had converted to its own use. Because neither the foreclosing mortgage company – Equitable Trust Company – nor the court-approved purchaser of the building – the aptly named 604 – 1 Street S.W. Inc. – received the tenants’ security deposits from the former owner/landlord, the issue was a classic in commercial law, a “battle of innocents.” Who would be out the more than $340,000 in security deposits, the mortgagee or the purchaser? The Chambers judge, R.G. Stevens, had let the loss lie where it fell, on the purchaser who would become the landlord to whom the tenants would look for their security deposits. A unanimous Court of Appeal – Madam Justice Marina Paperny, Mr. Justice J.D. Bruce McDonald and Mr. Justice Brian O’Ferrall – allowed the purchaser’s appeal and shifted the loss to the foreclosing mortgagee. While many of the grounds for allowing the appeal were based on the particular terms of the specific contract of purchase and sale between these individual parties, some of the grounds are more generalizable and therefore of broader interest.

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The Proper Person to Renew an Assigned Lease

PDF version: The Proper Person to Renew an Assigned Lease

Case considered: C & H Properties Inc. v Amos (Discount Thrift Store), 2012 ABQB 106

Carelessness with respect to assignments and subleases can easily jeopardize commercial tenants’ rights to renew their leases. Many tenants assign or sublet their rented commercial premises without seeking their landlord’s consent, which is usually required by the terms of their lease. Many commercial tenants do not seem to know the difference between assignments and subleases. Neither do they appear to realize that when they assign their lease, they lose the right to renew the lease and only their assignee has that right, whereas if they sublet then they retain the right to renew the lease. Perhaps that is why commercial lease negotiation consulting appears to be a growing business in North America. However, despite some assistance from a consultant in this case, the tenant was never able to overcome a lack of attention to details in the lease or their confusion about the difference between an assignment and a sublease.

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