So long to adverse possession in Alberta

January 11, 2023 | Shetal Jas, Joshua I. Selby

Under recent legislative changes, the doctrine of adverse possession can no longer be relied upon to acquire a right in or title of real property from a registered owner. The Property Rights Statutes Amendment Act, 2022 (the “Act”)[1] received royal assent on December 15, 2022 thereby becoming law. The Act alters three pieces of legislation which governed adverse possession in Alberta; Law of Property Act [2], Land Titles Act [3] and Limitations Act.[4]

Adverse possession in Alberta

The origins of adverse possession, also commonly referred to as squatter’s rights, can be found in common law. Historically in Alberta, the determination of title to land was premised upon possession or the right to enter upon the land and take possession.[5] Relying upon this principle, a person who was not the registered owner of land, but who possessed the land for more than 10 years could bring a claim against the registered owner (known as a claim to quiet title). In Alberta claims for adverse possession could be brought under statute[6] and were limited to actions against private owners.

Key points of the Act

The Act amends the Limitations Act. It now provides that there is no limitation period for a claim for recovery of possession of real property.[7] Practically, this allows a registered landowner to bring a claim to regain possession of their real property at any time, thereby no longer being limited to a claim prior to 10 years. Additionally a defendant does not have a defence under adverse possession.[8]

Importantly, the Act amends section 69 of the Law of Property Act and provides that, despite a person making a lasting improvement on land, title cannot be acquired under adverse possession.[9] Instead the Court[10] can, after considering all of the circumstances, order that the person who made the improvement remove or abandon it or acquire the land from the registered owner in an amount determined by the Court. Additionally, the Court can also provide an easement over the land or require the registered owner to pay compensation to the occupier.[11] The Act further explicitly provides that no right or title or implied license can be acquired through adverse possession and no right to access and use of light or any other easement, right in gross or profit à prendre can be acquired.[12]

The Act also repeals section 74 of the Land Titles Act[13], and now allows any person who has recovered a judgment for adverse possession to file a certified copy of it at the Land Titles Office.[14]

The Act does allow former and ongoing claims to quiet title to continue before the coming into force of the Act.[15] Accordingly, any previous successful claims for adverse possession will remain. Furthermore, any claims commenced under the former provisions before the coming into force of the Act, continue as if the 10 year limitation period applies.

Conclusion

The Act now provides certainty to registered owners against claims for adverse possession. The longstanding doctrine of adverse possession in Alberta is no longer an avenue to claim quiet title of land owned by another.


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

[2] Law of Property Act, RSA 2000 c L-7.

[3] Land Titles Act, RSA 2000 c L-4.

[4] Limitations Act, RSA 2000 c L-12.

[5] Alberta Law Reform Institute, Adverse Possession and Lasting Improvements to Wrong Land, Final Report 115 (2020) at para 90.

[6] Law of Property Act, RSA 2000 c L-7, section 69 and Limitation Act, section 3.

[7] The Act, section 3.2.

[8] Ibid.

[9] Ibid, section  2.

[10] Court means the Court of King’s Bench (Law of Property Act, section 1).

[11] The Act, section  2.

[12] Ibid.

[13] Land Titles Act, RSA 2000 c L-4.

[14] The Act, section  2.

[15] Ibid, section 1(2).

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