Squatter’s rights take new hit

The basic elements of adverse possession are: 

Alberta may see the end of adverse possession, also known as squatter’s rights, if the government accepts recent recommendations from the Alberta Law Reform Institute.

The law of adverse possession allows a person to potentially claim ownership of another’s land if that person has occupied it for at least 10 years. As the institute describes it, “the occupation must be exclusive, open, notorious and continuous. In today’s Alberta, it involves two people: the person in actual possession of the disputed property (the occupier) and the registered owner of the disputed property (the registered owner).”

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The institute has made preliminary recommendations to abolish the law and has opened a six-question online survey, available until Oct. 1, to gather further input.

“The challenge with adverse possession is that it really doesn’t make a distinction between an innocent or honestly held mistake and somebody who is deliberately and intentionally trespassing on land,” said law reform institute legal counsel Stella Varvis.

“I think it’s those cases in particular, that involve deliberate or intentional trespass, that tend to get people quite upset. The law in general, it’s not supposed to be built in such a way as to reward somebody who is making an intentional wrong.”

A 2014 case in southern Alberta saw rancher Robert Woodward lose possession of 10 acres in the Cardston region when a neighbour claimed it after using the property for 10 years.

Woodward had paid taxes on the land after acquiring it in 1999. After more than three years of litigation, he ended up losing the property to the neighbour under the law of adverse possession.

Calgary resident Jim McIndoe experienced a similar outcome in 2018 when he lost more than 750 sq. feet of urban property to a neighbour in a case involving an incorrectly placed fence. He lost in litigation and was also sued for legal costs.

“I think my situation was the one that kind of turned the tide for them and they realized how unjust it really was, as far as my situation was,” McIndoe said about the review of squatter’s rights legislation.

Several attempts have been made in the past to strike adverse possession from Alberta law via private member’s bills in the legislature. They either died on the order paper because of election calls or were wrapped in other legislation and never passed third reading.

The most recent attempt to address it, made last year, was abandoned pending results of the institute’s study and recommendations.

Now the institute has recommended the law be abolished. It said Section 69 of the Law of Property Act should serve to address most cases where adverse possession might otherwise have been used.

“It requires two things that adverse possession doesn’t,” said Varvis.

“The first is that there has to be a lasting improvement on land.”

A fence, for example, would not be considered a lasting improvement, but part of a house or large farm building would likely qualify. As well, Varvis said those lasting improvements have to have been made through an honest mistake.

“Because adverse possession doesn’t draw that distinction between the innocent trespasser and the deliberate one, what Section 69 does is that … you have to have had an honest belief that the improvements, you were building it on land that actually belonged to you.

“The idea is, let’s use Section 69 as the primary dispute resolution mechanism, to allow the court to take circumstances of both sides and come up with something that’s fair.”

The party that mistakenly made lasting improvements on someone else’s land may still be allowed to keep it under Section 69, but in that case the true owner would be entitled to compensation. The law of adverse possession has no such requirement.

Mistaken beliefs about ownership can come about through incorrect surveys, description errors by realtors and mistakes in permits issued by municipalities, said Varvis.

The law institute’s review, based on use of adverse possession since 2003, found it had been used successfully in only five cases that went to trial and resulted in a court decision. Most of those involved circumstances of mistaken belief in who owned the land, Varvis said.

However, it is difficult to say how many times the law of adverse possession comes into play.

“It doesn’t seem to be that often used, but again, it’s tough for us to know what the extent of the problem is because … the only thing that we can really rely on are those reported decisions out of a court.

“We don’t really have a good sense of how often do these things just happen and people resolve them on their own or they get lawyers involved and they resolve them without going to trial or without commencing any legal proceedings, which is why it’s quite important for us to hear from Albertans of all walks of life as to what their experience has been with this.”

The institute said it will review all comments provided through its survey, make changes to its recommendations if appropriate and file a final report. Further action will lie in government hands.

The governing United Conservative Party said in its election campaign that it would abolish squatter’s rights. Several former and current MLAs have stated their support for such a move, including McIndoe’s MLA, Richard Gotfried.

“I think it will go through this time because I think there’s ALRI support now and the UCP is the majority government and it was part of their platform,” said McIndoe.

If the government accepts the institute’s recommendations and adverse possession is abolished, it would not negate any rulings that had applied that law, according to the institute’s recommendation for transition.

The survey can be found at www.surveymonkey.com/r/9WL3YM6, and the law institute’s preliminary report can be found at www.alri.ualberta.ca/images/stories/docs/RFD33.pdf.