Category: Property Page 10 of 34

By: Jonnette Watson Hamilton

PDF Version: When are Late Payment of Rent Charges in Residential Tenancies Unenforceable?

Case Commented On: 416566 Alberta Ltd. v Fothergill, 2017 ABPC 96 (CanLII)

This Provincial Court decision by Judge Jerry LeGrandeur, Associate Chief Judge, is of interest because he considers whether the fee a landlord charged for the late payment of rent was a valid pre-estimate of liquidated damages or an illegal penalty. If it is an estimate of damages, the tenant must pay the fee. If it is a penalty, it is unenforceable and the tenant does not have to pay the fee. Judge LeGrandeur’s decision was made under the Mobile Home Sites Tenancies Act, RSA 2000, c M-20, rather than the more often used Residential Tenancies Act, SA 2004, c R-17.1, but both statutes deal with late payment charges the same way: neither says anything at all about them. As a result, late payment fees can be included in leases and, if tenants agree to pay those fees by signing leases that include them, the tenants have to pay the late payment fees unless those fees are what the common law calls a “penalty.” Judge LeGrandeur’s decision, which is applicable to all types of residential tenancies, is welcome because there is a lack of direction in Alberta about how much can be charged for a late payment fee before it becomes an illegal penalty and unenforceable.

Alberta Amends the Residential Tenancy Dispute Resolution Service Regulation

By Amy Matychuk

On May 9, 2017

In Access to Justice, Landlord/Tenant, Property

By: Amy Matychuk and Jo-Ann Munn Gafuik

PDF Version: Alberta Amends the Residential Tenancy Dispute Resolution Service Regulation

Legislation Commented On: Residential Tenancy Dispute Resolution Service Regulation, Alta Reg 98/2006

In the Fall of 2016 the Public Interest Law Clinic at the University of Calgary recommended changes to the Residential Tenancy Dispute Resolution Service Regulation, which expired on April 30, 2017. The Residential Tenancy Dispute Resolution Service (RTDRS) is established under Part 5.1 of the Residential Tenancies Act, SA 2004, c R-17.1 as an alternative to the Provincial Court for dealing with landlord/tenant disputes under the Act. ABlawg has documented significant problems with the RTDRS and the Regulation in several posts written by Professor Jonnette Watson Hamilton here, here, here, and here. The scheduled expiry of the Regulation was an opportunity for the Alberta government to address these problems through amendments. However, the amendments enacted on April 24, 2017, while including some welcome changes, fall well short of addressing noted problems with the RTDRS.

Punitive Damages and the Residential Tenancies Act

By Jonnette Watson Hamilton

On April 18, 2017

In Property

By: Jonnette Watson Hamilton

PDF Version: Punitive Damages and the Residential Tenancies Act

Case Commented On: Wilderdijk-Streutker v Zhao, 2017 ABPC 24 (CanLII)

Punitive damages are rarely awarded in residential tenancy disputes, but Wilderdijk-Streutker v Zhao is one of those rare cases. And although an award of punitive damages is very fact-dependent, there are some principles and rules of law which residential landlords and tenants who are contemplating claiming punitive damages should be aware of. They should also be aware that there are a few unsettled issues concerning the awarding of punitive damages in this context. Those unsettled issues are the focus of this post.

When is a Lease an Improper Subdivision of Land?

By Jonnette Watson Hamilton

On April 10, 2017

In Property

By: Jonnette Watson Hamilton

PDF Version: When is a Lease an Improper Subdivision of Land?

Case Commented On: Paskal Holdings Inc v Loedeman, 2017 ABCA 29 (CanLII)

An instrument or a caveat related to an instrument “that has the effect or may have the effect of subdividing a parcel of land” cannot be registered at a Land Titles Office unless a subdivision has been approved by the appropriate planning authority, according to subsections 652(1) and (5) of the Municipal Government Act, RSA 2000, c M-26. Section 94(1) of the Land Titles Act, RSA 2000, c L-4 provides that “[n]o lots shall be sold under agreement for sale or otherwise according to any townsite or subdivision plan until a plan creating the lots has been registered.” Both of these prohibitions have much broader scope than might be apparent on first reading. Neither is restricted to sales of fee simple title. In fact, over the years the most difficult applications of this prohibition have involved leases of portions of parcels of land, such as leases of farmsteads on quarter sections, stand-alone stores in mall developments, and RV or mobile home lots. The most recent decision of the Alberta Court of Appeal in this area ? Paskal Holdings Inc v Loedeman ? might settle some issues.

The Harsh Consequences of Ignoring the Dower Act

By Jonnette Watson Hamilton

On March 14, 2017

In Family, Property

By: Jonnette Watson Hamilton

PDF Version: The Harsh Consequences of Ignoring the Dower Act

Case Commented On: Joncas v Joncas, 2017 ABCA 50 (CanLII)

If you are a married Albertan with a piece of real property registered in your name alone, and you have resided on that property since the date of your marriage, then you cannot sell, mortgage, lease for more than three years, or otherwise dispose of that property without the written and acknowledged consent of your spouse. The Dower Act, RSA 2000, c D-15, sections 1(d), 2, 4 and 5 say the property is a “homestead” and you need consent to dispose of it. The purpose of the 100-year-old Dower Act is to provide a home for a widow/er — a right to a life estate on the death of the married person who owned the homestead (Senstad v Makus, [1978] 2 SCR 44 at 51, 1977 CanLII 201 (SCC)). And there would not necessarily be a home for the widow/er if the married person could unilaterally sell or otherwise dispose of the homestead, and so they cannot. The purpose of the Dower Act and the way it achieves its purpose was commendable one hundred years ago, when married women could not acquire land by homesteading, there was no social welfare safety net, divorce was far less common, life expectancies were much shorter, and families were far less complex. Today, however, things are different and the Dower Act can come into conflict with the Matrimonial Property Act, RSA 2000, c M-8 on the breakdown of a marriage. The Matrimonial Property Act is all about the fair distribution of matrimonial property between spouses or ex-spouses, but its fairness considerations are absent from the Dower Act. The potential for financially disastrous consequences is high when a married person with a homestead, whose marriage has broken down, is unaware of the requirements of the Dower Act and the harshness of the consequences of ignoring those requirements. Joncas v Joncas is an excellent example of the conflict and a cautionary tale.