Category Archives: Property

What’s the Matter with the Dower Act? How Law Reform Can Help with Everyday Legal Problems

PDF Version: What’s the Matter with the Dower Act? How Law Reform Can Help with Everyday Legal Problems

Reports Commented On: Alberta Law Reform Institute, Dower Act: Consent to Disposition, Report for Discussion 36; Alberta Law Reform Institute, Dower Act: Life Estate, Report for Discussion 37

Sometimes, the problem with a law is easy to see. If a government proposes legislation that might be unconstitutional, events play out in the public eye. Lawyers, academics, and other experts will point out the issue (for just a few examples, see e.g. here, here, and here). A court challenge can attract a lot of attention. If a court strikes down a law, news media will report the story.

Other problems are less visible. That does not mean they are less important. Most of us encounter the law in commonplace situations, like buying or selling a home, making a will or administering an estate, entering a lease, being hired or fired from a job, or getting divorced. If these transactions are inefficient or difficult to navigate, it won’t make the news. Nonetheless, these problems are important to the people affected by them. Resolving them can take money and time. A common problem that affects a lot of people can have a big cumulative effect. Law reform often addresses these kinds of problems. The Alberta Law Reform Institute’s (ALRI) project on the Dower Act, RSA 2000, c D-15 is a good example. Continue reading →

“Nine-Tenths of the Problem”: Abolishing Adverse Possession in Alberta

By: Stella Varvis

PDF Version: “Nine-Tenths of the Problem”: Abolishing Adverse Possession in Alberta

Matter Commented On: Alberta Law Reform Institute Survey Results re: Adverse Possession

“Possession isn’t nine-tenths of the law. It’s nine-tenths of the problem.” – John Lennon

The phrase ‘adverse possession’ conjures an old-fashioned, sepia-toned image of outlaw land squatters stealing land from decent, law-abiding folks. Adverse possession has existed in Alberta since the province’s inception. However, the idea that adverse possession rewards a deliberate trespasser and penalizes a registered owner who is forced to give up some of their titled land without any compensation, continues to persist, despite the fact that successful cases are relatively rare. Continue reading →

Saskatchewan Court of Appeal Confirms that a Registrar’s Caveat Is Not a Magic Wand

By: Nigel Bankes and Jonnette Watson Hamilton

PDF Version: Saskatchewan Court of Appeal Confirms that a Registrar’s Caveat Is Not a Magic Wand

Decision Commented On: Primrose Drilling Ventures v Registrar of Titles, 2021 SKCA 15

This case involves the rights acquired by a party (Primrose Drilling) who took a title that was encumbered by a registrar’s caveat. The caveat was filed to warn purchasers of a potential registrar’s error made back in the chain of title, but it was filed after a purchaser for value had got on the register relying on the flawed title.

The case came before the courts on the basis of a reference from the registrar relying on section 108 of The Land Titles Act, 2000, SS 2000, c L-5.1. The trial judge (Registrar of Titles and Great West Life Assurance Company and Primrose Drilling Ventures Ltd, 2018 SKQB 290 (CanLII)) concluded that Primrose’s title was subject to whatever interest the Registrar was seeking to protect (in this case the interests of GWL, the successor in interest to a party wrongly deprived of the mineral title to the lands in question). We commented on the trial judgment at some length in “Saskatchewan Land Titles Decision Calls Out for Appellate Review.” We took the position that the registrar had no authority to file a caveat once a purchaser for value had got on title on the faith of the register and that Primrose (the last purchaser for value in the chain of purchasers for value) was entitled to a title free of the blemish represented by the registrar’s claim. We refer the reader to that post for a detailed analysis and discussion of relevant authorities from both Saskatchewan and Alberta.

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Reforming Personal Property Security Law

By: Tamara Buckwold and Roderick Wood

PDF Version: Reforming Personal Property Security Law

Report Commented On: Alberta Law Reform Institute, Personal Property Security Law, Report for Discussion 35 (December 2020)

Every Canadian province and territory, except for Quebec, has enacted a Personal Property Security Act. Although there are minor variations across jurisdictions, these statutes are substantially uniform. Alberta’s Personal Property Security Act, RSA 2000, c P-7 (PPSA) originally came into force in October 1990. Its enactment transformed secured transactions law in Alberta by sweeping away many of the restrictions and limitations that impeded the use of secured credit. It replaced the piecemeal approach that formerly governed with a comprehensive and rational system that fostered certainty, transparency and flexibility. The success of the legislation is confirmed by the transplantation of the Canadian model into other jurisdictions such as New Zealand and Australia.

Although the PPSA produced a significant improvement in the law, experience with the legislation over the course of the last three decades has revealed several instances where improvements or clarifications are desirable. In some cases, the need for reform is driven by technological advances. When the PPSA was first enacted, electronic banking and electronic commerce were in their infancy. In other cases, judicial decisions have revealed ambiguities in the legislation that have produced uncertainty. Further, the statute simply did not anticipate the kinds of controversies that would be litigated in the future, and therefore did not provide rules for the resolution of these types of disputes.

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Forgery, Fraud and the Dower Act

By: Nigel Bankes

PDF Version: Forgery, Fraud and the Dower Act

Case Commented On: Inland Financial Inc v Guapo, 2018 ABQB 162 (Master) (CanLII), aff’d 2019 ABQB 15 (CanLII), aff’d 2020 ABCA 381 (CanLII)

Jose Neeves Guapo and Maria Guapo, a married couple, owned a home registered in the names “Jose Guapo and Maria Guapo” as joint tenants. Their son, Jose Domingos Guapo, lived in the home but had no ownership interest in it. It is important to note that father and son shared the same first name and surname and that the name on the register did not include Jose Guapo Sr’s middle name. The Court of Appeal summarized the key facts as follows (at para 5):

Jose Guapo Jr persuaded his mother to apply through a broker to Inland Financial for a loan to be secured by a mortgage on the home. He had done this on 12 different occasions with different brokers for progressively larger amounts. Inland Financial approved the loan in the amount of $245,000. The mortgage documents to secure the loan were prepared by Inland Financial’s lawyers and signed by Maria Guapo and Jose Guapo Jr, impersonating his father, who had no knowledge of the transaction. Inland Financial thought the son owned the house with his mother particularly since they had both sworn a statutory declaration that they were the owners and the house was their principal residence. The mortgage was registered against the title to the home. Funds were advanced and used to pay out two previous mortgages, also fraudulently obtained by Jose Guapo Jr, and the balance of the funds were paid into a bank account in the names of Maria Guapo and Jose Guapo Jr. It is unclear whether Maria Guapo understood the nature of the transaction as she did not speak English and did only what her son instructed her to do. She had received a Grade 4 education in Portugal, at the lawyer’s office her son spoke to her only in Portugese (sic), and she testified through an interpreter at questioning. There is no evidence that she received any funds from the mortgages.

When Jose Guapo Jr defaulted on the mortgage payments Inland commenced foreclosure proceedings. Inland also sought personal judgment against Jose Guapo Jr but did not seek a personal remedy in fraud against Maria Guapo. Jose and Maria Guapo defended; the son was noted in default.

As the title to this post suggests, these facts potentially engaged both the Dower Act, RSA 2000, c D-15 and the Land Titles Act, RSA 2000, c L-4 (LTA). The Court of Appeal decided the case solely on the basis of the Dower Act while the judgments below addressed the implications of both statutes.

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