Category Archives: Property

Building energy empires on (legal) foundations of sand, or, can I have my cake and eat it too?

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Case commented on: Remington Development Corporation v Enmax Power Corporation, 2011 ABQB 694, aff’d 2012 ABCA 196.

Most people would think that if Utility Co (U Co) needs access to cross Y’s land in order to construct a major capital investment in the form of a utility right of way, U Co will secure any necessary access rights (easement or utility right of way) either: (1) by way of an agreement, or (2) by way of expropriation if Y tries to extract hold-out rents.  In either case, U Co will want the expropriation or agreement to bind the land: i.e. to run with the land no matter what Y does with it (sell it, assign it into bankruptcy etc.).  And in either case one would think that U Co (and its lawyers) would want to make sure that the agreement bound the land for so long as U Co needed the right of way – or at least for a reasonable amortization period for the investment that U Co is about to make, so as to ensure that it does not have stranded assets on its hands, or worse still, a gap in its transmission system.

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Gardening on Vacant Land –Verdant History, Volatile Endeavor

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Comment: Gardening on vacant land in Calgary – Part I

On the Victoria Day long-weekend in 2012, Donna Clarke and some volunteers planted potatoes on a vacant lot next door to her home in Scarboro on 17th Avenue S.W.  The fence was painted in bright colours and painted tires were used as planters.  The lots were owned by Scarboro Projects Ltd., an affiliate of Vancouver mortgage firm who had foreclosed on a number of adjacent properties in 2009.  Three of the buildings had been ordered demolished by the City of Calgary in 2011 as part of a crackdown on derelict properties.

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

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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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Alberta Court of Appeal Addresses Constitutionality of Personal Information Protection Act

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Decision considered: Union Food and Commercial Workers, Local 401 v Alberta, 2012 ABCA 130

This is an appeal of a privacy case that was the subject of an earlier blog: See here. The employees of Palace Casino in West Edmonton Mall were on strike and both the United Food and Commercial Workers, Local 401 (“Union”), and the employer photographed and videotaped the picket line. People who crossed the picket line and those who walked in and out of the casino were also photographed or taped. The Union posted a sign stating: “by crossing the picket line you are providing your consent for your image to be posted at www.CasinoScabs.ca.” The employer’s Vice-President complained to the Privacy Commissioner that his photo was displayed on a poster at the picket site. Two other complainants who crossed the picket line said that they had been photographed or videotaped, although they never saw any images. The Office of the Privacy Commissioner’s (“OIPC”) Adjudicator accepted that it was a long-standing historical practice for Unions and employers to photograph and videotape at picket line sites.

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The Unusual Appointment of an Investigator under the Condominium Property Act

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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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