When squatters strike

Alberta is the only province to retain the squatter legislation, which is based on British common law. | Michelle Houlden illustration

Alberta squatters law allows people to be legal owners of land if they have been in open possession of it for 10 or more years

Bob Woodward can see the 10-acre parcel of ranchland from his kitchen window.

It is land west of Cardston, Alta., that he bought in 1999, for which he had legal title and on which he has paid taxes every year since it was purchased.

So Woodward was flabbergasted when a judge ruled in December that the land belonged to his neighbour.

The decision was based on Alberta law involving adverse possession, more commonly known as squatter’s rights.

It allows people to be recognized as legal owners of land if they have been in open possession of it for 10 or more years.

Alberta is the only province to retain the legislation, which is based on British common law but has been struck from the books in other provinces.

“I think that the rural people need to be made aware that this old act is still in the works and that if you have unscrupulous people looking for an opportunity like that, they can take advantage of that old law,” said Woodward, a longtime rancher who owns 2,400 acres.

“Even though you’ve bought a piece of property and paid for it and paid the taxes on it and everything, if they squat on it, even if you know that they’re there and more or less acknowledge, or in other words put up with them, if you let them do it for 10 years, they can turn around and claim your property.”

Woodward said he thought twice about going to court but decided to proceed when his neighbours gave notice in 2011 of a suit to claim the 10-acre piece of land, which he estimated to be worth $3,000 per acre.

“It’s kind of a matter of principle, but as it turned out, it didn’t do us any good.”

He and his lawyer, Douglas Carle, were surprised at the outcome, and an appeal has since been filed with the Alberta Court of Appeals.

Carle said adverse possession is a throwback to an era before Canada adopted the Torrens land titles system based on registered titles and accurate surveys.

“I think that it is actually quite puzzling that a jurisdiction such as ours … would even have a concept of adverse possession,” said Carle.

“It’s an archaic concept that causes nothing but hardship and flies in the face of our entire land titles system.”

Carle, who practises out of Taber, Alta., said the outcome of Woodward’s case should serve as a warning.

“What should be very chilling to farmers and landowners in Western Canada is the notion that you can let your neighbours … have access and use of your land, but you run the risk of them taking the land from you.

“I know many, many clients in southern Alberta who are good neighbours, who would never dream that their next door neighbour or their down-the-road farming companion would end up taking their land, but it’s something that farmers, especially farmers, need to think of.”

Alberta legislators gave two readings to a bill in 2012 that would have struck adverse possession from provincial law, but it died on the order paper when a provincial election was called.

Bill 204, brought forward by Ken Allred, then the Progressive Conservative MLA for St. Albert, would have abolished all mention of the adverse possession doctrine.

Alberta Liberals are also on record as supporting the move at the time.

As reported in Hansard, Allred said the legislation was outdated and its abolition “would assure Alberta landowners that they will not be at risk of losing land to a neighbour who has accidentally or intentionally been trespassing on their property.”

Allred, who did not stand for re-election in 2012, is a former land surveyor.

He told the legislature at the time that about 100 court cases in Alberta had involved adverse possession but few were successful because of the province’s “efficient land titles system.”

It was Allred’s contention that squatter’s rights should never have been adopted from the English system in the first place because Alberta was surveyed before settlement, as opposed to Britain’s settlement before survey.

Adverse possession caused the City of Calgary to lose land in 1965 and irrigation districts to lose land in 1993.

After that, the government amended legislation to exempt municipalities and irrigation districts from future claims on that basis.

The provincial property act allows people to claim land on which they have mistakenly built lasting improvements. However, that person must pay the landowner compensation for the property lost.

Woodward said he wants the current government to take action.

“I say at the stroke of a pen, the government could change this thing, and they need to do it.

“I say shame on Alberta for hanging onto this thing when all the other provinces in Canada have thrown it out. I want these legislators to do something about it.”

Individuals should be free of it, just as irrigation districts and municipalities are, he added.

Carle said he thinks the government may be considering changes.

Drew Barnes, Wildrose MLA for Cypress Medicine Hat, said he would be happy to examine the pros and cons of the legislation at the next legislative session, set to begin March 10.

“Property rights are the bedrock of a democratic society,” said Barnes.

“Property rights allow individuals to know where their rights begin and where the government’s rights end. So any infringement on an individual’s property rights would be of great concern to me.”

Carle said he has discussed adverse possession with some of his farmer clients and generally advises landowners to confirm their ownership in cases where neighbours are using their land.

“It has certainly caught the fear and imagination of southern Albertans,” said Carle, adding that the case was one of the more interesting he has tackled in 26 years of practice.

“I’ve always told clients that 99.9 percent of the time, an issue can be decided merely by an application of common sense…. This is that point one percent of the time.”

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