Category Archives: Property

Constraining a Landlord’s Ability to Terminate a Residential Tenancy by Raising the Rent

By: Jonnette Watson Hamilton

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Case commented on: Milner’s Aloha Mobile Home Park (1998) Ltd v Jenkins, 2014 ABQB 229 (CanLII)

This is an important decision for residential tenants, with potentially far-reaching impact. If a residential tenant is not in breach of his or her tenancy agreement, a landlord is unable to evict them except for a small number of reasons prescribed by the applicable legislation, either the Residential Tenancies Act, SA 2004, c R-17.1 or the Mobile Home Sites Tenancies Act, RSA 2000, c M-20. But because Alberta has no law limiting the amount by which landlords can increase rent, everyone knows that landlords can force tenants out by raising their rent beyond what they can afford or are willing to pay. This decision by Master Andrew Robertson calls into question that received wisdom. Indeed, by finding that the increase in rent in Milner’s Aloha Mobile Home Park (1998) Ltd v Jenkins was really a notice to terminate a periodic tenancy and of no effect as either a notice to terminate or a notice of a rent increase, Master Robertson’s decision potentially signals a significant shift in the power balance between landlords and residential tenants in Alberta. Continue reading →

The Abatement of Rent Remedy under Alberta’s Residential Tenancies Act

By: Jonnette Watson Hamilton

PDF Version: The Abatement of Rent Remedy under Alberta’s Residential Tenancies Act

Case Commented On: Perpelitz v Manor Management Ltd., 2014 ABPC 63

There are few enough written decisions considering the landlord’s duties under Alberta’s 10-year-old Residential Tenancies Act, SA 2004, c R-17.1, that almost any decision considering the statute is worth bringing to the notice of the province’s landlords and tenants. But this decision by Judge Gordon Yake is interesting on its own merits for a few reasons.

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What is the Legal Effect of an Unenforceable Agreement in an Unjust Enrichment Claim?

By: Jonnette Watson Hamilton

PDF Version: What is the Legal Effect of an Unenforceable Agreement in an Unjust Enrichment Claim?

Case commented on: Lemoine v Griffith, 2014 ABCA 46

The recent decision of the Alberta Court of Appeal in Lemoine v Griffith is interesting for what it tells us, in the context of a claim of unjust enrichment, about the legal effects of a prenuptial agreement that was both found and admitted to be unenforceable because of undue influence and a lack of independent legal advice. According to the majority, Justices Ronald Berger and Clifton O’Brien, once the trial judge found the agreement unenforceable for those reasons — and the appellant abandoned his challenge to that finding — the prenuptial agreement was not a factor in either supplying a juristic reason for any enrichment or evidence of the parties’ intentions. However, despite the fact that the unenforceability of the prenuptial agreement was not an issue, in his dissent Justice Frans Slatter would have overturned the finding of undue influence, holding (at para 103) that the “trial judgment cannot stand.”  While that is not the only point of disagreement between the majority and the dissent, it is the point that I will focus on in this comment.

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The Difference Between a Duplex and a Semi-Detached House

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Case commented on: Deagle v 1678452 Alberta Ltd., 2013 ABQB 708

Does permission to construct a semi-detached dwelling allow the building of a secondary suite? That was the essence of the controversy in Deagle v 1678452 Alberta Ltd., which involved the interpretation of a 1911 restrictive covenant registered against the title to homes in the Glenora community in Edmonton. In deciding the matter, Justice Donald Lee reviewed a large number of cases concerning restrictive covenants that, in one way or another, limited construction to one dwelling house per lot. While each of those many cases ultimately depended on the exact wording in each restrictive covenant, the distinction that Justice Lee made between a “duplex” and a “semi-detached” house goes beyond the particularities of each case in the absence of evidence as to what the parties to any one restrictive covenant intended by their use of those terms at the time the covenant was entered into. 

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A Case for Reform: The Law of Fraudulent Preferences and Conveyances

PDF Version: A Case for Reform: The Law of Fraudulent Preferences and Conveyances

Case Commented On: 1007374 Alberta Ltd v Ruggieri, 2013 ABQB 420

The case of 1007374 Alberta Ltd v Ruggieri, 2013 ABQB 420, is not significant in and of itself, but rather because it highlights some (but not all) of the shortcomings of the current state of the law regarding fraudulent preferences and conveyances. This is an area of law that has been described as “notoriously antiquated and long overdue for reform” (see Tamara M. Buckwold’s article: “Reforming the Law of Fraudulent Conveyances and Fraudulent Preferences” (2012) 52 Canadian Business Law Journal 333, at 333).

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