Category Archives: Property

The property rights debate in Alberta

PDF version: The property rights debate in Alberta 

Document commented on: “Albertans asked for property rights input,” Government of Alberta Press Release, November 24, 2011

Premier Redford has announced the creation of a task force to ask “Albertans for their concerns regarding property rights.” According to the Press Release, Premier Redford has “heard concerns from landowners that their property rights need to be better respected,” and takes the view that “We need to move towards a more common-sense approach when it comes to property rights.”

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What is the effect of an invalid caveat? What is the effect of the lapse of an invalid caveat?

PDF version: What is the effect of an invalid caveat? What is the effect of the lapse of an invalid caveat?

Case commented on: Humford Developments Ltd. v 1026451 Alberta Ltd., 2011 ABQB 655

The decision of the Alberta Court of Appeal in Holt Renfrew & Co. v Henry Singer Ltd., (1982), 20 Alta LR (2d) 97 (CA) tells us that an old caveat protecting an old lease cannot protect a new lease, and that an invalid caveat purporting to protect an agreement for sale cannot protect the priority of that interest as against a subsequent caveat filed to protect the new lease. In this case (Humford) Justice Clackson concludes that a caveat that was invalid ab initio can protect the assignee of a lease against a new registered owner and that the lapse of such a caveat is immaterial. I think that the first part of this conclusion is mistaken.

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Section 19 of the Perpetuities Act and the oil and gas lease as a fee simple determinable estate of a profit à prendre

PDF version: Section 19 of the Perpetuities Act and the oil and gas lease as a fee simple determinable estate of a profit à prendre 

Statute commented on: Perpetuities Act, RSA 2000, c P-5.

In a couple of years we will “celebrate” the fortieth anniversary of the Perpetuities Act of 1972, SA 1972, c 121. They may not know it yet, but the wildest celebrations will be heard from those who hold oil and gas leases granted after July 1, 1973 which are still in force. Here’s why. After that date, as each and every oil and gas lease reaches its fortieth birthday, the lessor’s possibility of reverter for terminating the lease for want of production comes to an end; thenceforward the lease can only be terminated for cause (as described in the default clause of the leases) such as the non-payment of royalties, which causes can typically be cured without losing the lease. Lessees will become the effective owners of the oil and gas estate.

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Tenant Cannot Unilaterally Withhold Rent Because of Unsanitary Living Conditions

Case Considered: Herman v. Boardwalk Rental Communities, 2011 ABQB 394 

Introduction

Questions often arise about whether a tenant can refuse to pay rent because of something the landlord has or has not done, or because of the condition of the premises. The typical short answer is “no.”.” Why? Because, generally-speaking, “rent is sacrosanct.” And so it was in the recent case of Herman v. Boardwalk Rental Communities, 2011 ABQB 394 (Herman), a case considering the situation of tenants in Alberta under the Residential Tenancies Act, RSA 2000, c 17.1 (RTA). Even in the face of allegations of dog/cat urine and fecal matter leaking onto/into his apartment, the Court held the tenant could not unilaterally withhold rent. The Court also held that procedure can be sacrosanct in landlord/tenant matters. The tenant’s failure to meet the procedural requirements for bringing his appeal resulted in it being dismissed, with costs being awarded to the landlord.

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Lack v. Alberta: Court Unmuddies and Advances Accretion Law

PDF version: Lack v. Alberta: Court Unmuddies and Advances Accretion Law 

Case considered: Lack v. Alberta (Sustainable Resource Development), 2011 ABQB 379

Courts typically find the facts, ascertain the applicable law, and apply the law to the facts. When asked to apply common law of accretion to a natural world overlaid with complex situations of land ownership and statutory rules and rights under the Alberta Land Titles Act, RSA, c L-4, this straightforward approach cannot always easily be adopted. Over the last few years accretion challenges have invited creative judicial activity and problem solving in order to reconcile classic accretion at common law, the natural world, and the Alberta Torrens system as manifested in the Land Titles Act. My earlier blog Andriet v. County of Strathcona No. 20: Court of Appeal Conjures a Creative Accretion Approach discussed some of the accretion issues that lead to questions regarding what is the applicable law in Alberta. Is it the old common law concerning accretion Is it an evolving common law to account for a changing physical and social world? Is it the common law mixed or modified by the application of the Land Titles Act, and rights under that Act? Justice Yamuchi’s decision in Lack v. Alberta takes us a fair distance in clearing up some of these recently exposed murky areas.

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