Category Archives: Property

For Golfers: A Classic Bailment Case with an Exclusion Clause Issue

By: Jonnette Watson Hamilton

PDF Version: For Golfers: A Classic Bailment Case with an Exclusion Clause Issue

Case Commented On: Bloomer v Connaught Golf Club, 2017 ABPC 105 (CanLII)

Bailment is an interesting legal concept because it is ubiquitous and because it is at the overlap of contract, property and tort law and yet is its own distinct area of law. However, because the issue in Bloomer v Connaught Golf Club involved an exclusion clause, the exclusive focus of Judge Derek G. Redman’s decision was on contract law (rather than the far more fascinating property law). This case is also factually simple, but those facts might disturb some readers. The Connaught Golf Club — which Mr. Bloomer was a member of — had agreed to store Mr. Bloomer’s golf clubs for him but was unable to find his golf clubs when he came in to play his daily golf game with his wife on June 24, 2016. In other words, the case is about a pro shop in Medicine Hat that lost a club member’s golf bag and its contents. Continue reading →

When are Late Payment of Rent Charges in Residential Tenancies Unenforceable?

By: Jonnette Watson Hamilton

PDF Version: When are Late Payment of Rent Charges in Residential Tenancies Unenforceable?

Case Commented On: 416566 Alberta Ltd. v Fothergill, 2017 ABPC 96 (CanLII)

This Provincial Court decision by Judge Jerry LeGrandeur, Associate Chief Judge, is of interest because he considers whether the fee a landlord charged for the late payment of rent was a valid pre-estimate of liquidated damages or an illegal penalty. If it is an estimate of damages, the tenant must pay the fee. If it is a penalty, it is unenforceable and the tenant does not have to pay the fee. Judge LeGrandeur’s decision was made under the Mobile Home Sites Tenancies Act, RSA 2000, c M-20, rather than the more often used Residential Tenancies Act, SA 2004, c R-17.1, but both statutes deal with late payment charges the same way: neither says anything at all about them. As a result, late payment fees can be included in leases and, if tenants agree to pay those fees by signing leases that include them, the tenants have to pay the late payment fees unless those fees are what the common law calls a “penalty.” Judge LeGrandeur’s decision, which is applicable to all types of residential tenancies, is welcome because there is a lack of direction in Alberta about how much can be charged for a late payment fee before it becomes an illegal penalty and unenforceable. Continue reading →

Alberta Amends the Residential Tenancy Dispute Resolution Service Regulation

By: Amy Matychuk and Jo-Ann Munn Gafuik

PDF Version: Alberta Amends the Residential Tenancy Dispute Resolution Service Regulation

Legislation Commented On: Residential Tenancy Dispute Resolution Service Regulation, Alta Reg 98/2006

In the Fall of 2016 the Public Interest Law Clinic at the University of Calgary recommended changes to the Residential Tenancy Dispute Resolution Service Regulation, which expired on April 30, 2017. The Residential Tenancy Dispute Resolution Service (RTDRS) is established under Part 5.1 of the Residential Tenancies Act, SA 2004, c R-17.1 as an alternative to the Provincial Court for dealing with landlord/tenant disputes under the Act. ABlawg has documented significant problems with the RTDRS and the Regulation in several posts written by Professor Jonnette Watson Hamilton here, here, here, and here. The scheduled expiry of the Regulation was an opportunity for the Alberta government to address these problems through amendments. However, the amendments enacted on April 24, 2017, while including some welcome changes, fall well short of addressing noted problems with the RTDRS. Continue reading →

Punitive Damages and the Residential Tenancies Act

By: Jonnette Watson Hamilton

PDF Version: Punitive Damages and the Residential Tenancies Act

Case Commented On: Wilderdijk-Streutker v Zhao, 2017 ABPC 24 (CanLII)

Punitive damages are rarely awarded in residential tenancy disputes, but Wilderdijk-Streutker v Zhao is one of those rare cases. And although an award of punitive damages is very fact-dependent, there are some principles and rules of law which residential landlords and tenants who are contemplating claiming punitive damages should be aware of. They should also be aware that there are a few unsettled issues concerning the awarding of punitive damages in this context. Those unsettled issues are the focus of this post. Continue reading →

When is a Lease an Improper Subdivision of Land?

By: Jonnette Watson Hamilton

PDF Version: When is a Lease an Improper Subdivision of Land?

Case Commented On: Paskal Holdings Inc v Loedeman, 2017 ABCA 29 (CanLII)

An instrument or a caveat related to an instrument “that has the effect or may have the effect of subdividing a parcel of land” cannot be registered at a Land Titles Office unless a subdivision has been approved by the appropriate planning authority, according to subsections 652(1) and (5) of the Municipal Government Act, RSA 2000, c M-26. Section 94(1) of the Land Titles Act, RSA 2000, c L-4 provides that “[n]o lots shall be sold under agreement for sale or otherwise according to any townsite or subdivision plan until a plan creating the lots has been registered.” Both of these prohibitions have much broader scope than might be apparent on first reading. Neither is restricted to sales of fee simple title. In fact, over the years the most difficult applications of this prohibition have involved leases of portions of parcels of land, such as leases of farmsteads on quarter sections, stand-alone stores in mall developments, and RV or mobile home lots. The most recent decision of the Alberta Court of Appeal in this area ? Paskal Holdings Inc v Loedeman ? might settle some issues. Continue reading →