Category: Property Page 11 of 34

Reasons, Respect and Reconciliation

On March 3, 2017

In Aboriginal, Administrative Law, Property

By: Nigel Bankes

PDF Version: Reasons, Respect and Reconciliation

Case Commented On: Kainaiwa/Blood Tribe v Alberta (Energy), 2017 ABQB 107 (CanLII)

Reconciliation between Canada’s settler society and First Nations and other indigenous communities certainly requires mutual respect but it should also require reasons in appropriate cases according to Justice Paul Jeffrey, at least where the Crown dismisses an application for the exercise of a statutory discretion which is closely linked to efforts to right an historic grievance. This is an important decision which should be required reading for every Minister of the Crown with a responsibility for the relationship between Her Majesty and Canada’s first peoples, and for all senior civil servants responsible for advising those Ministers.

Residential Tenancy Agreements, Options to Purchase, In Terrorem Clauses, and Relief from Forfeiture

By Jonnette Watson Hamilton

On February 16, 2017

In Contracts, Property, Provincial Court

By: Jonnette Watson Hamilton

PDF Version: Residential Tenancy Agreements, Options to Purchase, In Terrorem Clauses, and Relief from Forfeiture

Case Commented On: Dreamworks Ventures Ltd v Dye, 2017 ABPC 20 (CanLII)

This residential tenancy case, arising in the context of a rent-to-own arrangement, is light on the law. The dispute was primarily about the tenants’ responsibility for cleaning and painting after they left the house and this decision assesses the damages. Nevertheless, the case raised one interesting legal point. Judge Allan H. Lefever mentioned an in terrorem clause in connection with the Option to Purchase that had been granted to the tenants in return for a non-refundable $5,000 deposit that was part of the rent-to-own arrangements. While he mentions the clause, he did not discuss it because it was not relevant to the dispute. The in terrorem clause tried to scare the tenants to stop them from filing a caveat to protect their interest under the Option to Purchase. Can this in terrorem clause possibly be valid? This, it seems, is a difficult question to answer.

Co-Owners and Adverse Possession – The Uniqueness of Alberta?

By Nickie Nikolaou

On January 24, 2017

In Limitations, Property

By: Nickie Nikolaou

PDF Version: Co-Owners and Adverse Possession – The Uniqueness of Alberta?

Case Commented On: Verhulst Estate v Denesik, 2016 ABQB 668 (CanLII)

In an earlier post, I concluded that Master Schlosser was correct in finding that a co-owner will typically not be able to claim their co-owner’s interest in the property through the doctrine of adverse possession. In this appeal upholding that decision, Justice D.L. Shelley queries whether a co-owner in Alberta can ever make a claim for adverse possession against a co-owner. This leads her on an interesting journey across Canada which suggests, but does not conclude, that Alberta might be unique in its treatment of co-owners and adverse possession.

Street v Mountford Applied to Decide: A Residential Tenancy Agreement or a Licence?

By Jonnette Watson Hamilton

On January 13, 2017

In Landlord/Tenant, Property, Provincial Court, Statutory Interpretation

By: Jonnette Watson Hamilton

PDF Version: Street v Mountford Applied to Decide: A Residential Tenancy Agreement or a Licence?

Case Commented On: Singh v RJB Developments Inc., 2016 ABPC 305 (CanLII)

This Provincial Court decision by Judge Jerry LeGrandeur, Associate Chief Judge, is of interest primarily because he used the common law in order to determine whether the Residential Tenancies Act, SA 2004, c R-17.1 (RTA) applied to Jaspreet Singh’s occupation of a portion of a building owned by RJB Developments Inc (RJB). While this resort to the common law in this context is rarely seen, we can expect to encounter it more often, given the increasing variety in short- and long-term residential accommodations. The courts usually do rely on the common law in those few borderline cases, such as this one, where the question is whether the RTA applies, even though the statute appears to answer all questions about its scope. However, when resorting to the common law, the courts — including Judge LeGrandeur in this case — do not always indicate why they believe it is both necessary and possible to do so. This is unfortunate because the RTA is usually used by non-lawyers who often rely on explanations of the statute that are provided by Service Alberta (e.g., RTA Handbook and Quick Reference Guide) or non-profit organizations such as the Centre for Public Legal Education Alberta (e.g., Renting 101: A Guide to Renting in Alberta). None of those explanations indicate that landlords and tenants need to look outside the RTA to find out if it applies; they all simply paraphrase the statute.

Board Cannot Ignore Injurious Affection Losses

By Nigel Bankes

On January 9, 2017

In Administrative Law, Energy, Property, Utility Regulation

By: Nigel Bankes

PDF Version: Board Cannot Ignore Injurious Affection Losses

Case Commented On: Koch v Altalink Management Ltd, 2016 ABQB 678 (CanLII)

This case involves WATL (the Western Alberta Transmission Line) and parcels of land owned by the Kochs that will be bisected by the line. The principal point of law involved relates to the injurious affection suffered by the lands retained by the Kochs (i.e. these are Koch lands which lie outside the area of the right of way acquired by Altalink). It is a standard principle of compensation law that such losses should be recoverable. However, in this case, Altalink, in an argument accepted by the majority of the Surface Rights Board panel hearing the case, took the position that the Kochs had bought the lands at a price that was already discounted from its original market value by the prospect of WATL being constructed. Accordingly, the Kochs had suffered no injurious affection losses and were therefore not entitled to any compensation under this head of damages. On this theory the party that had suffered the loss was the vendor to the Kochs and to compensate the Kochs for injurious affection would to award them a windfall. The minority would have awarded injurious affection damages of $125,780. The Kochs appealed.