Property – Page 33

This was an application under section 141 of the Land Titles Act, R.S.A. 2000, c. L-4 for the discharge of a caveat registered against a rental property in Calgary. The owners of the property in this case were Mr. and Mrs. Varma. The caveator was their daughter, Ms. Donaldson. She claimed she had an interest in the rental property under an agreement for its purchase and sale made between herself and her parents. Master K.R. Laycock disagreed and ordered that her caveat be discharged.

Two cases concerning the Statute of Frauds (1677, U.K.)

By Jonnette Watson Hamilton

On February 26, 2008

In Property

Cases Considered: Leoppky v. Meston, 2008 ABQB 45, Wasylyshyn v. Wasylyshyn, 2008 ABQB 39

PDF Version: Two cases concerning the Statute of Frauds (1677, U.K.)

A statute enacted over 350 years ago by a Parliament sitting in London, England was the basis of two decisions of the Alberta Court of Queen’s Bench handed down the week of January 21, 2008. The decision of Madam Justice D.C. Read in Leoppky v. Meston, 2008 ABQB 45, was released January 17. The decision of Mr. Justice E.A. Marshall in Wasylyshyn v. Wasylyshyn, 2008 ABQB 39, was released January 18.

City Amends Land Use Bylaw in Bad Faith

By Nickie Nikolaou

On February 25, 2008

In Administrative Law, Municipal Law, Property

Cases Considered: Airport Self Storage and R.V. Centre Ltd. v. Leduc (City), 2008 ABQB 12

PDF Version: City Amends Land Use Bylaw in Bad Faith

Although municipal councils in Alberta are generally entitled to amend land use bylaws by following procedures set out in the Municipal Government Act (the “MGA”), R.S.A. 2000, c. M-26, this decision tells us that sometimes a council will have to go further in order to ensure procedural fairness. There are circumstances where personalized written notice of a hearing to consider a proposed land use amendment will be required. As always, the content of the duty of fairness varies according to the particular facts of each case. The facts here are lengthy, but they are critical.

Severing a Joint Tenancy Without Adequate Notice to the Other Joint Tenant

By Nickie Nikolaou

On February 12, 2008

In Property

Cases Considered: Felske (Estate of) v. Donszelmann, 2007 ABQB 682

PDF Version: Severing a Joint Tenancy Without Adequate Notice to the Other Joint Tenant

This is one of those estates cases where the facts cry out for a particular result. It is also one of those cases where the law provided the right result. This was a fight between the Public Trustee of Alberta, on behalf of an 80 year old mentally incompetent widower who, for 42 years, owned a farm with his wife as joint tenants, and a neighbour who, while the wife lay dying in hospital, had his lawyer prepare a will and transfer of land giving him the wife’s interest in the farm. There is no question that Mr. Justice D.A. Sirrs decided correctly when he chose the Public Trustee over the neighbour on these facts.

Ascertaining a Dominant Tenement With a Right to a View

By Jonnette Watson Hamilton

On December 12, 2007

In Property

Cases Considered: Kolias v. Owners Condominium Plan 309 CDC, 2007 ABQB 714

PDF Version: Ascertaining a Dominant Tenement With a Right to a View

The small community known as Eagle Ridge occupies the eastern shore of the Glenmore Reservoir in Calgary. In 1971, a restrictive covenant was registered against Lot 10 in the Eagle Ridge community, a lot now owned by the appellants, Ike and Lisa Kolias. In the restrictive covenant, Lot 10 was divided into three areas and height restrictions were imposed on two of those three areas. No structure or hedge over six feet in height could be built or placed in the first of those areas. Nothing over fourteen feet in height (except chimneys or radio or T.V. antenna) was allowed in the second area. Although not specified in the restrictive covenant itself, its purpose arguably was to protect the sight lines of the units in the six storey condominium on the adjacent lot. These units had views in three directions, including views of downtown to the north and, to the west across Lot 10, views of Heritage Park, the Glenmore Reservoir and the mountains to the west.