On December 6, 2022, the Alberta government presented Bill 3, or the Property Rights Statutes Amendment Act (the “Act”). On December 15, 2022, the Act received royal assent. This legislation was brought forth to abolish adverse possession claims, more commonly known as “squatter’s rights”, against private landowners. Such protections against adverse possession already existed over public land, municipal land, and irrigation districts.

Previous legislation allowed private lands to be claimed by persons who were in possession of that land but did not own it when the “squatter” had maintained a certain quality of possession for 10 years or more. The Act ultimately amended three statutes: the Law of Property Act RSA 2000, c L-7, the Land Titles Act RSA 2000, c L-4, and the Limitations Act RSA 2000, c L-12. Any claims that were commenced prior to the Act coming into force will continue to proceed under the former legislation. In addition, any land titles issued under previously allowed court decisions on adverse possession remain protected and will continue to be in effect.

Adverse Possession

Under the former legislation, a person could apply to a court to claim ownership over lands that they did not hold legal title to but to which they asserted current physical possession. This assertion of possession and claim for ownership was commonly referred to as “squatter’s rights” and stemmed from the common law tradition. If an application for adverse possession was successful, it resulted in the quieting of title of the registered owner and ultimately the transfer of legal title to the claimant-possessor. In order to assert an adverse possession claim, the person seeking ownership of the land must have been in possession of it for at least 10 years and have had a certain quality of possession including whether there had been an acknowledgment or re-entry by the registered property owner within the past 10 years. A 2020 report from the Alberta Law Reform Institute listed nine confirmed court cases in Alberta on adverse possession in the last eight years, but there are likely additional cases and other disputes that have not been publicly reported.

Reasons for Removing the Legislation

In the past decade in 2012, 2017 and 2020, there have been several unsuccessful attempts to disallow adverse possession claims against private lands in Alberta through private member bills to change legislation. Other nonpartisan sources, such as the Alberta Law Reform Institute have also made efforts to advocate for the abolishment of adverse possession through studies and reports. In the 2020 report by the Alberta Law Reform Institute, it was explicitly recommended that adverse possession be abolished by statute. This was also echoed by the Alberta government’s bipartisan Special Committee on Real Property Rights, who released their final report suggesting abolishing adverse possession in June 2022. These recommendations to abolish adverse possession come after extensive academic debate and public consultation.

Adverse possession was particularly worrisome for rural Albertans who own multiple sections of land. The vast areas could be time consuming and challenging to patrol and manage and therefore became vulnerable to squatters to possess and eventually take control of sections of these large rural properties. Adverse possession could also arise in circumstances where neighbors knowingly or unknowingly operated under certain assumptions regarding registered property lines due to boundary fences or other markers between neighboring lands which may not actually mark the registered boundaries on title. Abolishing adverse possession alleviates a large burden on landowners currently defending their land from adverse possession claims. Now that the Act has passed, a registered owner may start an action to regain possession of their property at any time, and the person(s) who are in possession of the land are barred from advancing a defence of adverse possession.

Abolishing adverse possession rights in Alberta brings the province in line with other jurisdictions including Saskatchewan, New Brunswick, the Yukon, British Columbia, Ontario, and Manitoba. Alberta now follows the trend in modernizing provincial property rights in this regard.

What Amendments does the Act Bring

The changes to legislation include:

• Law of Property Act (Alberta): Amendments simply abolish adverse possession. Adverse Possessors are no longer able to rely on this statute in order to make their squatter claims or defend claims against registered owners for re-possession on this basis. These amendments also give courts further powers to decide just outcomes when property disputes arise from buildings that encroach on neighbouring properties or for people who make lasting improvements on land that is not theirs, including: order that the person who made the improvements to remove or abandon the improvements, order that an easement be made on terms the court thinks just, order that the person who made the improvements acquire the land on which the improvements are made, or require the registered owner to compensate the person who made the improvements.
• Land Titles Act (Alberta): Amendments ensure that people who have been granted ownership for adverse possession prior to the Act will maintain ownership.
• Limitations Act (Alberta): Amendments bolster the ability of a registered owner to regain possession over land that is currently being occupied by an adverse possessor. More specifically, the Act removed the ten-year time limitation that a registered owner has to reclaim possession over property. Property owners will now be able to seek an order that gives them back immediate ownership of their property at any point in time and will not be barred from doing so by virtue of limitation periods.

Conclusion

After nearly a decade, the Alberta government has fulfilled a platform commitment to abolish adverse possession in favor of landowners. With the Act now in force, landowners facing claims against adverse possession finally have a new level of statutory protection to assist them with defending such claims and, as a further benefit, additional remedies are available to the courts in circumstances where improvements or buildings are at issue as it pertains to issues relating to the Law of Property Act.

The author would like to acknowledge the support and assistance of Barrett Schultz, articling student at law.