The Alberta Property Rights Statutes Amendment Act, 2022 (the “Act”), came into force on December 15, 2022. The Act amends three existing Alberta statutes: the Land Titles Act, the Law of Property Act and the Limitations Act, with the effect of updating the law regarding adverse possession in order to protect registered private landowners’ property rights. Adverse possession, sometimes known as “squatter’s rights”, is a legal principle which enables a person to gain ownership of real property through possession of that property for a certain period of time. This could apply in various circumstances, such as a squatter occupying land or a neighbouring structure encroaching across property lines; however, the principle was only applicable to private lands – public land was protected from adverse possession claims.
Before the Act came into effect, the law regarding adverse possession in Alberta permitted an adverse possessor to make a claim for the legal ownership of land against the registered private landowner if they had exclusive, continuous, open or visible and notorious possession of the land for a period of ten years or more (Lutz v. Kawa (1980), 112 D.L.R (3d) 271 ABCA). Under the Land Titles Act, section 74 allowed the Court to issue a judgement granting ownership of land to the adverse possessor, which would be registered at Land Title Office. Upon registration, the registrar would issue a new title in the adverse possessor’s name, making them the official registered owner of the land in the public registry, with full ownership rights. In addition, registered land owners making a claim to recover possession of real property that had been adversely possessed for over 10 years would have their claim extinguished by the 10-year limitation period in the Limitations Act.
The Act made several significant amendments to the legislation that facilitated the legal mechanism of adverse possession, including the Land Title Act, the Law of Property Act and the Limitations of Actions Act.
The Act abolishes adverse possession rights by introducing a new section 69.1to the Law of Property Act, which is accurately described by the header “No title by adverse possession”. Any adverse possession claims commenced after the Act came into force will not have the benefit of a right to title, implied license, right to access or any other easement. Additionally, the amendment to section 69 provides the Court with various discretionary powers when dealing with owners of structures or improvements that encroach onto another person’s land under the belief that the land is theirs. The Court may issue various orders, such as, ordering the removal or abandonment of the structure, creating an easement, requiring the structure owner to purchase the land where the structure or improvement is located on terms the Court thinks just, or requiring the registered owner to compensate the structure owner for the amount which the improvement enhances the value of the land on terms the Court thinks just.
Section 74(1) of the Land Titles Act, which previously provided the mechanism to transfer title to the adverse possessor upon successful judgment, is now replaced with a provision that is tailored to give effect to judgments granted under the new discretionary powers of the Court introduced in section 69 of the Law of Property Act, which require registration in the Land Titles Office.
Finally, the Limitations Act is amended by repealing subsections 2(2.1), 2(4)(a), 3(4), 3.1(4), 3.1(6) – 3.1(8) and inserting a new section 3.2, which effectively removes the 10-year limitation period that previously barred registered landowners with claims for the recovery of possession of real property and states that the defence of adverse possession is not available to a defendant in such a claim.
The Act is a significant step towards safeguarding the property rights of registered private landowners in the Alberta. By removing the previous 10-year limitation period for recovery of possession and abolishing the right to title through adverse possession claims, the Act reduces the rights of adverse possessors and makes it more difficult for squatters to gain ownership of real property. The changes provide protection to private land owners that were previously only afforded to the government.
Prepared by Tariq Jomaa, Barrister and Solicitor
This memorandum is for informational purposes only, does not constitute legal advice or an opinion, and does not create a solicitor-client relationship. This is an overview and is not intended to be a complete and exhaustive explanation of the concepts covered. This information may become inaccurate based on passage of time or changes in the law. Nothing herein should be relied upon without seeking the advice of a lawyer.
