HIGHLIGHTS

  • A Justice of the Alberta Court of Queen's Bench, in a carefully considered decision, has reviewed and explained the law of adverse possession in Alberta. The Court observed that in some aspects, Alberta law regarding adverse possession is unique from the law of other provinces. Alberta law has, since 1905, recognized the right of "trespassers" (sometimes referred to as "squatters") who have been in continuous, adverse and open possession of another person's land for more than 10 years, to obtain an Order "quieting" the title of the true owner, and to exclusive possession of the land. The Court observed that the Alberta Land Titles Act entitles adverse possession claimants to obtain a certificate of title to disputed land by filing a copy of the Court's judgment with the Registrar of Land Titles, unless the judgment relates to a portion of the land only, in which case the claimant must obtain subdivision approval before a new certificate of title can be issued. The Court observed that Alberta law presented difficulties but that these difficulties can only be resolved through legislative change. The Court also held that a claim of adverse possession could be defeated if the owner consented to the trespasser's occupation before the limitation period expired, but that a revocable "license to occupy" which arose from this consent could not arise from mere acquiescence. This case involved a dispute between the owners of two residential lots in the City of Calgary. The "trespassers" knew they were trespassing on their neighbour's land and were determined not to move unless they were required to do so. The land owners were aware the trespasssers were occupying their land, but were not aware of the risk of inaction and did not take action for more than 10 years because they wanted to avoid a confrontation. [Editor's note: Although this decision relates to urban residential lots, it is an important reminder to Alberta farmers who are at risk of losing substantial portions of valuable land if their fences do not lie on surveyed boundaries. Land owners can take steps to protect their ownership rights, provided that they do so prior to the expiry of Alberta's 10 year limitation period.]. (Moore v McIndoe, CALN/2018-022, [2018] A.J. No. 384, Alberta Court of Queen's Bench)

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Originally published in Lexis Nexis

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