Category Archives: Property

Ascertaining a Dominant Tenement With a Right to a View

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.

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Standing to Seek Judicial Review or Simply a Matter of Legislative Drafting?

Cases Considered: Real Estate Council of Alberta v. Henderson, 2007 ABCA 303

Keywords: administrative law, real estate, regulation of professions

PDF Version: Standing to Seek Judicial Review or Simply a Matter of Legislative Drafting?

The Real Estate Council of Alberta (RECA), a self-regulatory organization established by section 3 of the Real Estate Act, R.S.A. 2000, c. R-5, administers the licensing of real estate agents, appraisers and mortgage brokers in Alberta and governs the competence and conduct of such industry members via authority granted by the Act. RECA is comprised of eleven (11) council members appointed by various industry associations, and one additional appointee selected by the Minister.

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Private Justice Delayed

Cases Considered: Flock v. Flock, 2007 ABCA 287, Flock v. Flock, 2007 ABQB 307

Keywords: arbitration, matrimonial property division, leave to appeal

PDF Version: Private Justice Delayed

In September 2007, Mr. Justice Peter Martin denied leave to appeal of a May 2007 decision by Madam Justice K.M. Horner setting aside an arbitrator’s award dividing matrimonial property. The couple embroiled in this dispute had married in 1982, separated in 1994 and divorced in 1999. The couple had a considerable amount of real property and thorny issues related to property owned prior to the marriage and the value of those properties that should be exempted from the matrimonial property regime. A 6-day arbitration hearing was held before one arbitrator, Alan Beattie, Q.,C., in Calgary in 2003 and he rendered an award 33 months later, in July 2006. Article IX of the arbitration agreement between the couple and Mr. Beattie required the arbitrator to communicate his award to the parties within 60 days of the end of the hearing. The past year of litigation has been devoted to the husband’s application to set aside the July 2006 award.

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A Tenant’s Right to Withhold Payment of Rent

Cases Considered: Botar v. Mainstreet Equity Corp., 2007 ABQB 608

PDF Version: A Tenant’s Right to Withhold Payment of Rent

This appeal illustrates how difficult it can be to evict a residential tenant who has not paid rent for the better part of a year. It also illustrates how well a self-represented litigant can do in the superior courts, the Alberta Court of Queen’s Bench in this case.

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Sub-Tenant Woes When a Head Lease Disappears

Cases Considered: 581834 Alberta Ltd. v. Alberta (Gaming and Liquor Commission), 2007 ABCA 332, 581834 Alberta Ltd. v. Alberta (Gaming and Liquor Commission), 2006 ABQB 47

PDF Version: Sub-Tenant Woes When a Head Lease Disappears

This case illustrates the dangers for lawyers and their clients in changing the wording used in lawyers’ old precedents. Instead of using the standard formula of “by, from, or under” in a landlord’s covenant of quiet enjoyment, the innovative phrasing of “by, through, or under” was inserted. This allowed the lawyers for the tenant to make the first part of their argument in this appeal. It is cases such as this one that stymie the plain language movement in law.

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