Category Archives: Property

Defining Art in the Commons: The Case of Building Owners and Graffiti in Edmonton

Case Considered: O & M Investments Ltd. v. Edmonton (City), 2010 ABQB 146

PDF version:  Defining Art in the Commons: The Case of Building Owners and Graffiti in Edmonton

Graffiti, or street art, is hardly new and neither is the debate around whether it is a public nuisance or art in the commons, as was shown in O & M Investments Ltd. v. Edmonton (City). Graffiti is likely one of the world’s most contentious art forms, perhaps in part due to the subjective nature of art appreciation but also due to the renegade qualities of the installation of a piece. In O & M, a building owner contested an order issued by the City of Edmonton’s Community Standards Branch to “[r]emove all graffiti on any structures on the property that are visible to any surrounding property” (at para. 3). The order referred to graffiti that had been applied to a large wall facing a vacant lot in what can best be described as a mixed-use neighbourhood (see map here and in “street view”, move around to the west side of the building to observe the graffiti).

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The Availability of Relief from Forfeiture for Non-Payment of a Life Insurance Premium

Case considered: Community Credit Union Ltd. v. Transamerica Life Canada, 2009 ABQB 704

PDF version:   The Availability of Relief from Forfeiture for Non-Payment of a Life Insurance Premium

This is a well-researched and clearly written decision by Justice Keith Yamauchi on an unresolved issue in insurance law. The question is whether relief from forfeiture is available when a life insurance policy lapses for non-payment of premiums. Since 1994, the usual approach of the courts confronted by this question has been to merely assume relief from forfeiture was available and decide on the easier basis that, even if it was available, it was not appropriate to grant it on the facts of the case before them. In this decision, however, Justice Yamauchi decided the legal point and determined that relief from forfeiture was not available. This decision has several points of interest from a property law perspective, which is the perspective I am adopting for these comments. The aspects of this decision that interest me the most are two. The first is the perceived tension between statutorily regulated life insurance contracts and the body of law known as equity, also known as the classic tension between certainty and justice in the individual case. The second is the sharp line drawn, obliterated, and then re-drawn between property and contract.

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The Animal Keepers Act: Perennial Problems of Priority

Case considered: Rachar v. Litvak, 2009 ABQB 441

PDF version: The Animal Keepers Act: Perennial Problems of Priority

This is the first case to consider the Animal Keepers Act, S.A. 2005, c. A-40.5, a piece of legislation which came into force in November of 2005. It replaced a 101-year-old statute, the Livery Stable Keepers Act, R.S.A. 2000, c.L-14, which was originally enacted in 1884 as an ordinance of the North-West Territories and applied to the area that would become Alberta. According to the Alberta Ministry of Agriculture and Rural Development, the Animal Keepers Act “provides a person who boards or cares for an animal a means of collecting outstanding bills owed by the owner of such animals with priority over all other liens, bills of sales, etc. without the use of costly, complicated legal processes.” The new Act seems to live up to this description. While extensively used by the cattle industry and other keepers of livestock, neither this Act nor its predecessor have been the subject of much judicial consideration. Those rare disputes that have been taken to court tend to involve issues of priority among creditors, as does this case.

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Clear and Unequivocal Evidence Required to Prove a Gift of Land

Case Considered: Fleet Estate v. Davies, 2009 ABCA 376 

PDF version: Clear and Unequivocal Evidence Required to Prove a Gift of Land

Cases involving gifts of land are not frequently before the Alberta Court of Appeal. This may be because such gifts are uncommon, or it may be because such gifts are difficult to prove. In the recent case of Fleet Estate v. Davies, 2009 ABCA 376, the Court of Appeal reminds us that clear and unequivocal evidence must always be presented to make out a case for a gift of land. Having been allowed to live in the property for a number of years without paying any rent is not sufficient. Proving that a gift of land has been perfected requires more. The Court of Appeal says that evidence of delivery of a transfer of land or a duplicate certificate of title (where those are still available) will do, but it is doubtful that anything less will.

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Perhaps the Last Court of Appeal Decision on the Availability of Specific Performance for Agreements for the Sale and Purchase of Land

Case considered: Covlin v. Minhas, 2009 ABCA 404

PDF version: Perhaps the Last Court of Appeal Decision on the Availability of Specific Performance for Agreements for the Sale and Purchase of Land

If the recommendations in the October 2009 Alberta Law Reform Institute (ALRI) Final Report No. 97, entitled “Contracts for the Sale and Purchase of Land: Purchasers’ Remedies,” are implemented, cases like Covlin v. Minhas will disappear from Alberta court dockets. ALRI recommended that the law governing remedies for breaches of such contracts be restored to what it was prior to the 1996 Supreme Court of Canada decision in Semelhago v. Paramadevan, [1996] 2 S.C.R. 415. The only issue in Covlin v. Minhas was whether the plaintiff, Verna Covlin, who was the purchaser under a contract for the sale and purchase of land, was entitled to the remedy of specific performance. Prior to Semelhago, specific performance for breach of a real estate contract was granted as a matter of course. Post-Semelhago, however, Covlin had to prove the land she offered to purchase was “unique” in the sense that no substitute is available for it. ALRI’s Final Report No. 97 recommends that legislation be enacted to provide that any land which is the subject of a contract for sale and purchase is conclusively deemed to be unique at all material times.

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