Canada: Possession – No Longer Nine-Tenths Of The Law In Alberta

This month, the Government of Alberta amended the Law of Property Act¹, the Land Titles Act², and the Limitations Act³ to abolish the law of adverse possession in the province. On December 5, 2022, Bill 3, the Property Rights Statutes Amendment Act, 2022 (the "Act")⁴ was tabled. The Act received royal assent on December 15, 2022 and has now become law.

The law of adverse possession developed through the common law as a means to determine a person's right to land.⁵ Under the doctrine, a person could take ownership of land not in the possession of the registered owner, through exclusive, continuous, open, and notorious use and occupation of the disputed land (referred to as "claims to quiet title").<<sup>6 Like many provinces, this doctrine has been codified in Alberta such that a person may claim ownership of privately-held land from the registered owner if and when they have occupied the land for a period of 10 years.⁷ The passage of the new Act does away with this established legal principle, so that rightful landowners will not lose their property to squatters.

Summary of Key Amendments

The Act repeals section 69 of the Law of Property Act, so that it no longer allows a person to retain property where they have made lasting improvements to the land. Instead, the Court may order the person who has made the lasting improvements to remove or abandon them or else acquire the disputed land from the landowner. Alternatively, the Court may order the landowner to compensate the person for the value of the improvements on their land or may grant an easement for the use of the land.⁸ The Act further amends the Law of Property Act such that it explicitly stipulates that no implied license, right, or title to land shall be acquired or deemed to be acquired by adverse possession.⁹

The Act also amends the Limitations Act and specifically removes the limitation period for landowners bringing a claim to recover the possession of property. This means that a person could use and occupy the land of a registered owner for 10 or more years and the landowner could bring a claim at any point time to regain possession of that land. Under such a claim, the defendant occupier could not argue adverse possession as a defence.¹⁰

Further, the Act amends the Land Titles Act by repealing section 74(1) which allows persons who have acquired land through adverse possession to file a certified copy of the judgment stating the same with the Land Titles Office.¹¹

The combined effects of these amendments is to do away with the doctrine of adverse possession in Alberta moving forward. However, under this Act, prior successful claims to quiet title will continue pursuant to the newly added section 74.1(2) of the Land Titles Act.¹² This means that if land was acquired through adverse possession prior to the coming into force of the Act, the previous owner cannot recover possession of the land under these amendments.¹³ Rather, the new owner will maintain their interest in the property going forward. Further, any claims to quiet title that were commenced but not concluded prior to the coming into force of the Property Rights Statute Amendment Act, 2022 on December 15, 2022 will proceed as if the ultimate 10-year limitation period under the Limitations Act for the recovery of possessed property, is still in force.¹⁴

Adverse Possession Across Canada

The laws of other provinces and territories vary with respect to the extent that adverse possession is tolerated within their respective regions:

• In Saskatchewan, New Brunswick, and the Yukon, the law of adverse possession has been entirely abolished.¹⁵
• British Columbia has essentially eliminated the doctrine as well, as under British Columbia's Limitation Act, a person cannot acquire land through adverse possession.¹⁶ However, the British Columbia statute does not interfere with land title acquired through adverse possession prior to July 1, 1975.¹⁷
• In Ontario, a person can make a claim for possessory title of the occupied land but only if the occupation began 10 years prior to the registration of the property with land titles.¹⁸
• Finally, in Quebec, the doctrine of adverse possession is alive and well. A person can make a claim for adverse possession after continuously occupying any type of land for 10 years.

Conclusion

The Act came into force on December 15, 2022. Albertans' property rights now receive a new level of protection, thus relieving landowners of the worry of losing their land to those who deliberately trespass on their property in hopes of securing a legal interest.

Footnotes

1 Law of Property Act, RSA 2000, c L-7.

2 Land Titles Act, RSA 2000, c L-4.

3 Limitations Act, RSA 2000, c L-12.

4 Bill 3, Property Rights Statute Amendment Act, 2022, 4^th Sess, 30^th Leg, Alberta, 2022 (third reading 13 December 2022) [The Act].

5 Alberta Law Reform Institute, Adverse Possession and Lasting Improvements to Wrong Land, Final Report 115 (2020) at para 1 [Final Report].

6 Ibid at para 2.

7 Law of Property Act, s 69; Limitations Act, s 3.

8 The Act, s 2(2).

9 Ibid, s 2(3).

10 Ibid, ss 3(3)(b)-(4).

11 Ibid, s 1(2).

12 Ibid, s 1(3).

13 Ibid.

14 Ibid, ss 1(3), 2(2).

15 Alberta Justice, Property Rights Statutes Amendment Act, 2022 (Government of Alberta, December 5, 2022), online (pdf): <<a href="https://www.alberta.ca/assets/documents/jus-property-rights-statutes-amendment-act-2022-info-sheet.pdf" target="_blank">https://www.alberta.ca/assets/documents/jus-property-rights-statutes-amendment-act-2022-info-sheet.pdf>.

16 Limitation Act, SBC 2012, c 13, s 28(1).

17 Ibid, s 28(2).

18 Land Titles Act, RSO 1990 c L.5, s 51.

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