Verhulst Estate v Denesik, 2016 ABQB 668

Court of Queen’s Bench of Alberta Citation: Verhulst Estate v Denesik, 2016 ABQB 668 Date: 20161130 Docket: 1503 03335, 1403 15652 Registry: Edmonton Action No. 1503 03335 Between: Alymer Denesik Appellant - and - Sandra Lee Verhulst As Administratrix of the Estate of Gary Verhulst Respondent Action No. 1403 15652 Between: Sandra Lee Verhulst As Administratrix of the Estate of Gary Verhulst Respondent - and – Alymer Denesik Appellant _______________________________________________________ Reasons for Decision of the Honourable Madam Justice D.L. Shelley In Relation to an Appeal of the Order of Master W.S. Schlosser Pronounced January 28 th , 2016 (the Decision)

_______________________________________________________ Nature of the Appeal [ 1 ] The Respondent had applied for an order of partition and sale in relation to three parcels of land (collectively the “Property”). The Appellant had then applied for a declaratory judgment in relation to the Property, based on a claim in adverse possession. [ 2 ] The Master heard the applications together. He dismissed the Appellant’s application and granted the Respondent’s application on the terms set out by the Master in his Decision.

Background [ 3 ] The Property is comprised of a 159 acre parcel (the “larger parcel”) and two smaller river lots (the “river lots”) totalling 96 acres. There is a distance of approximately six kilometres between the larger parcel and the two river lots. [ 4 ] The Property had been acquired by the Appellant and the late Mr. Verhulst, in April of 1995.

They were business partners who had done a number of projects together prior to buying the Property as tenants in common. [ 5 ] They jointly financed the purchase of the Property and thereafter began logging on the Property, using the proceeds of the logging operation to pay off the mortgages. [ 6 ] Once the logging operation had ceased, in approximately 1996, the Appellant moved a mobile home onto the larger parcel. It had a homemade water system, but no electricity or gas. [ 7 ] The Appellant did not pay anything to Mr.

Verhulst for his use and occupation of the Property, but he did pay the taxes up until 2015. [ 8 ] Mr. Verhulst lived in the city with his family, holding his interest in the Property for investment purposes. [ 9 ] Mr. Verhulst died in April of 2008. The Respondent’s application was filed in October of 2014. The Appellant filed his application in March of 2015. [ 10 ] The Master concluded that there was no time at which Mr. Verhulst was dispossessed, or dispossessed to the point where he should have realized that he had to seek a remedial order to recover possession of the Property.

He concluded that the Appellant’s action in putting a trailer onto a portion of the larger parcel in 1996 was not enough to establish a claim to the entirety of the larger parcel, much less the distant river lots. Issues [ 11 ] The main issue before me is whether the Master erred in dismissing the Appellant’s application and granting the Respondent’s application. [ 12 ] A further issue arising from the arguments advanced by the parties, but not specifically addressed in the Decision, is whether a tenant in common in Alberta can acquire another tenant in common’s interest through adverse possession.

To address this issue, I will consider the following sub-issues: 1. What is the test for adverse possession in Alberta? 2. Do the principles of co-ownership preclude an adverse possession claim in Alberta, as compared to other Canadian jurisdictions? 3. Does the Torrens system affect the possibility of an adverse possession claim? Applicable Law and Legal Principles [ 13 ] It is well established, and the parties agree, that the standard of review for an appeal of a Master’s decision is that of correctness. The balance of this

section will, therefore, focus on the law applicable to adverse possession. A. Applicable Law in Alberta Legislation [ 14 ] Adverse possession can be viewed as an aspect of limitations of actions. The Limitations Act, RSA 2000, c L-12 provide, in part:

3(1) Subject to subsections (1.1) and (1.2) and

section 11, if a claimant does not seek a remedial order within (a) 2 years after the date on which the claimant first knew, or in the circumstances ought to have known, (

i) that the injury for which the claimant seeks a remedial order had occurred, (ii) that the injury was attributable to conduct of the defendant, and (iii) that the injury, assuming liability on the part of the defendant, warrants bringing a proceeding, or (b) 10 years after the claim arose, whichever period expires first, the defendant, on pleading this Act as a defence, is entitled to immunity from liability in respect of theclaim ...

(4) The limitation period provided by subsection (1)(

a) does not apply where a claimant seeks a remedial order for possession of realproperty, including a remedial order under

section 69 of the Law of Property Act. ...

(6) The re-entry of a claimant to real property in order to recover possession of that real property is effective only if it occurs prior to theend of the 10-year limitation period provided by subsection (1)(b).

(7) If a person in possession of real property has given to the person entitled to possession of the real property an acknowledgment inwriting of that person’s title to the real property prior to the expiry of the 10-year limitation period provided by subsection (1)(b), (

a) possession of the real property by the person who has given the acknowledgment is deemed, for the purposes of this Act, to havebeen possession by the person to whom the acknowledgment was given, and (

b) the right of the person to whom the acknowledgment was given, or of a successor in title to that person, to take proceedings torecover possession of the real property is deemed to have arisen at the time at which the acknowledgment, or the last of theacknowledgments if there was more than one, was given.

(8) If the right to recover possession of real property first accrued to a predecessor in title of the claimant from whom the claimantacquired the title as a done, proceedings to recover possession of the real property may not be taken by the claimant except within 10years after the right accrued to that predecessor. [15]

Section 74 of the Land Titles Act, RSA 2000, c L-4, provides: 74(1) Any person recovering against a registered owner of land a judgment declaring that the person recovering the judgment is entitledto the exclusive right to use the land or that the person recovering the judgment be quieted in the exclusive possession of the land,pursuant to the Limitation of Actions Act, RSA 1980 cL-15, or pursuant to an immunity from liability established under the LimitationsAct, may file a certified copy of the judgment in the Land Titles Office. [16]

Section 39 of the Land Titles Act details the process for registering an adverse claim: 39(1) Any person having an adverse claim or a claim not recognized in the application for registration may, at any time before the judgehas approved of the applicant’s title, file with the Registrar a short statement of the person’s claim, verified by affidavit, and shall serve acopy of it on the applicant, the applicant’s solicitor or agent.

(2) If an adverse claim is filed, the judge shall proceed to examine into and adjudicate on it, and no certificate of title shall be granteduntil the adverse claim has been disposed of. [17] The provisions of the Limitations Act and the Land Titles Act work in concert to achieve extinguishment and possession by asquatter. By virtue of

section 3 of the Limitations Act, the owner of the land loses the right of recovery of their property after the tenyear period has elapsed. Their title would then be extinguished and granted to the new possessor through

section 74 of the Land TitlesAct. Case Authorities [18] The leading Alberta case on the topic of adverse possession is Lutz v Kawa (1980), 1980 ABCA 112 , 23 AR 9, 112DLR (3d) 271 (CA). Laycraft JA concluded that the law does not require the adverse possessor to intend to oust or dispossess theowner. Adverse possession can be made out where there is “an actual possession, an occupation exclusive, continuous, open or visibleand notorious” for the required period (Lutz at 20 citing Shereen v Pearson (1886), 1887 CanLII 39 (SCC), 14 SCR 581 at 585). [19] Relying on Lutz, Langston J summarized the elements of an adverse possession claim in Rinke v Sara, 2008 ABQB 756 atpara 19, 67 CPC (6th) 312:

a) The true owner must be out of possession of the claimed lands;

b) The claimant must be in use and occupation of the claimed lands;

c) The claimant’s use and occupation must be exclusive, continuous, open or visible and notorious for the requisite 10-year period;and

c) The fact of use and occupation by the claimant is the only determinant while the belief, ignorance, mistake or intention ofthe claimant is immaterial. B. Adverse possession and co-ownership in Alberta [20] The situation of one tenant in common attempting to make an adverse possession claim against a fellow tenant in commonposes unique legal issues.

Halsbury’s Laws of Canada defines tenancy in common in part as each co-owner holding an interest in theproperty that is separate and distinct from the others in shares that need not be equal; each tenant's share is undivided in that it is anownership in all of the property; and, unlike a joint tenancy, the only unity required for a tenancy in common is the unity of possession.(Halsbury’s Laws of Canada (Online), Real Property, Estates In Land: Types of Tenancies: Tenancy in Common: Nature of Tenancy(I.3(4)(a)), at HRP-43 “Tenancy in Common Defined”). [21] On a principled basis, the fact that tenants in common hold undivided shares in the entire property makes it difficult toconceptualize how one tenant in common might put the other tenant in common “out of possession” of the claimed lands.

Similarly, itseems inconsistent for a co-owner to be able to have “exclusive” occupation, to the point of excluding the other tenant in common ontitle. While there appears to be no Alberta jurisprudence that directly addresses the issue of tenants in common making an adversepossession claim, there are a few cases that are relevant. [22] In Deal v Deal (1974), (AB KB), 50 DLR (3d) 564, 1974 CarswellAlta 17 (Alta SCTD) the Courtconsidered an adverse possession claim in the context of two joint tenants.

The parties had purchased a home shortly after gettingmarried, and title to the property was issued to them as joint tenants. The parties eventually separated and Ms. Deal claimed adversepossession on the basis that she had been in exclusive possession of the property for over ten years. Cullen J found that “consideration ofthe incidents of joint tenancy resolves the entire problem” (para 19). Citing unity of possession and the inability for one joint tenant tomake a claim in trespass against the other, the Court held that there was no adverse possession as between the two joint tenants.

Giventhat the mutual feature of a tenancy in common and joint tenancy is unity of possession, logically this proposition should also apply totenancy in common. [23] A related situation arises where a would-be adverse possessor has consent or license from the owner. If a party is found to bea tenant or licensee, it will be difficult for them to establish an adverse possession claim (Robertson v King Estate, 1999 ABQB 167 atparas 36-39, 243 AR 201, aff’d 1999 ABCA 314, 244 AR 379; Dobek v Jennings (1928), (AB CA), 23 Alta LR 306 at315-316, 1927 CarswellAlta 41).

In the recent case of Reeder v Woodward, 2016 ABCA 91, 2016 CarswellAlta 589, the plaintiffsargued that they were either entitled to a disputed strip of land pursuant to a three-way agreement, or else by virtue of adversepossession. The Court of Appeal held that “[a] claim to land based on adverse possession must be “adverse”...if the claimant is inpossession of the land with the permission or consent of the registered owner, then that possession is not “adverse”’ (para 10). [24] This demonstrates the difficulty of establishing adverse possession in the context of co-owners.

Because the co-owners are ontitle, there is implied permission by one co-owner for the other to be in possession. These cases suggest that an adverse possession claimby one tenant in common against another cannot succeed. [25] The Appellant relies in part on, and the Master considered, the comments of Professor Bruce Ziff in Principles of PropertyLaw, 6th ed (Toronto: Thomson Reuters Canada Ltd, 2014) at 148).

Professor Ziff suggests that such claims are possible, writing that“even a person entitled to be on the land as a co-owner may acquire a claim, as an adverse possessor, against other persons with whomthe right to possession is shared.” There is a “heavy onus” on the claimant “to prove that the acts being relied upon are not referable tothe permitted use, or, in the case of co-owners, that the person in possession intends to exclude the other co-owner(s)” (at p 148).

Thesestatements were not specific to the Albertan context, Professor Ziff citing the Newfoundland and Nova Scotia cases of Blundon vRussell, 2002 NFCA 20, 210 Nfld & PEIR 326, and Bentley v Peppard (1903), (SCC), 33 SCR 444, 1903 CarswellNS7, for this proposition. [26] In contrast, Sandra Petersson opines that adverse possession in Alberta is precluded by the inherent nature of certainrelationships, such as joint tenancy (Sandra Petersson, “Something for Nothing: The Law of Adverse Possession in Alberta” (1992) 30:4Alta L Rev 1291 at 1307).

The unity of possession required for joint tenancy would prevent one joint tenant from making a claim intrespass against another joint tenant. Thus, even if a joint tenant was absent from their property for ten years, another joint tenant couldnot make an adverse possession claim. The Alberta Law Reform Institute apparently shares this view (Alberta Law Reform Institute,Limitations Act: Adverse Possession and Lasting Improvements, Edmonton: ALRI, 2003 at para 58, online: <https://www.alri.ualberta.ca/docs/fr089.pdf>).

The unity of possession inherent to a tenancy in common should presumably alsopreclude an adverse possession clam. C. Adverse possession and co-ownership in other jurisdictions [27] There is a body of case law in other Canadian provinces that recognizes adverse possession claims between joint tenants ortenants in common. [28] In order to evaluate the precedential value of these cases, it is important to consider the law of adverse possession in itshistorical and legislative context. In her article, referred to above, Ms.

Petersson provides a comprehensive overview of the developmentof the law of adverse possession. While the concept of adverse possession began in medieval times, the modern predecessor to adversepossession arose in

An Act for the Limitation of Actions and Suits relating to Real Property and for simplifying the Remedies for tryingthe Rights thereto, (1833) 3 & 4 Will IV, c 27 [The Real Property Limitation Act, 1833 or “1833 Act”].

Section 34 of this Act provided

for the extinguishment of a landowner’s right at the point that the limitations statue barred his remedy against another person in relationto that land. [29]

Section 12 of The Real Property Limitation Act, 1833 specifically addressed joint tenants and tenants in common.

It providedthat, when any one or more of several persons entitled to any land as joint tenants or tenants in common were in possession of theentirety, or more than his or their undivided share or shares of such land, for his or their own benefit, or for the benefit of any person orpersons other than the person or persons entitled to the other share or shares of the same land, such possession would not be deemed tohave been the possession of or by any such last-mentioned person or persons. [30] This provision remained in the 1874 version of the limitations statute, and was incorporated into the legislative scheme ofmany Canadian provinces. [31] In Bentley v Peppard (at 446) the Supreme Court of Canada explained the effect of this provision: At common law and notwithstanding the old limitation statutes, the actual and exclusive possession of a tenant or parcener could notwork to the detriment of his co-tenant or co-parcener.

His possession was theirs and could be invoked not only as against the alleged titleof a trespasser, but in aid of their own: (But this principle has long since been changed by statute both in England and Nova Scotia.) Since this change, therefore, exclusive possession by one of such co-owners is regarded as adverse against the others. [32] Today, the limitations statutes of a number of provinces still contain a similar provision. For instance,

section 11 of theOntario Real Property Limitations Act, RSO 1990, c L-15,

section 15 of the Limitation of Actions Act, RSNS 1989, c 258, and

section 33of the Statute of Limitations, RSPEI 1988, c S-7, all utilize the same wording as

section 12 of the old 1833 Act. New Brunswick andNewfoundland also have similar provisions (Limitation of Actions Act, SNB 2009, c L-8.5, s 8.1; Limitations Act, SNL 1995, c L-16.1, s20). [33] This legislative scheme has sustained actions for adverse possession by one tenant in common against another other in thesejurisdictions. In Re Appleby (1982), (NB CA), 42 NBR (2d) 427, 140 DLR (3d) 562 the New Brunswick Court ofAppeal granted the appellant’s application to extinguish the respondent’s interest in the property.

The Court concluded that the NewBrunswick statutory scheme enabled an adverse possession claim by co-owners against each other. The open and exclusive use andenjoyment of the property by one co-owner over a 25-year period was sufficient to establish a successful adverse possession claim in thecircumstances of that case. [34] In Lynch v Lynch (1985), (NS SC), 71 NSR (2d) 69 (SC (TD)) at 71, 1985 CarswellNS 212, the Courtallowed the action for adverse possession of tenants in common by virtue of the Limitations Act provision in the Nova Scotia statutesimilar to

section 12 of the 1833 Act. The Court found that one tenant in common had successfully established adverse possession of thecleared areas surrounding his home on the property. Similarly, another tenant in common had established adverse possession in regardsto a small portion of land where his garage and woodlot were located. The interests of all other heirs and the other co-owner wereextinguished.

In relation to the remainder of the property, which consisted of pasture and woodlands, the Court found that neitherindividual had exercised exclusive possession in relation to one another, though none of the other heirs had shown any interest in theproperty. Thus, the interests of the other heirs were extinguished, but the parties were not successful in the adverse possession claimsagainst each other in regards to the woodland and pasture. [35] There are also a number of cases that concern joint tenants.

This commonly occurs in family law matters where couples owna home as joint tenants and subsequently separate. Years later, one former partner makes an adverse possession claim against the other. The adverse possession claim is often successful, with the courts relying on statutory provisions analogous to

section 12 of the 1833 Act(Plant v Plant, 1993 CarswellOnt 342 at para 36, 1993 CarswellOnt 342; Post Estate (Trustee of) v Hamilton, 2015 ONSC 5252, 2015CarswellOnt 13197; Re Gibbins and Gibbins (1977), (ON SC), 18 OR (2d) 45; 1 RFL (2d) 352). [36] The case law suggests that joint tenants or tenants in common face a higher standard than a typical squatter. In Blundon vRussell, a brother and sister inherited land from their grandfather as tenants in common. The brother made use of the land and his sonbuilt a house on the property, while the sister lived elsewhere.

The Newfoundland Court of Appeal stated that, “it may be said that,generally, one co-owner cannot exclude another co-owner except in exceptional circumstances”. The Court held that on the facts of thatcase, the brother’s actions fell short of the high standard required and did not constitute possession of the entire property. Further, he didnot prove that his sister was excluded from the property. As such, the sister’s interest in the land was not extinguished. [37] In Zigelstein v Stobinski (1985), (ON SC), 51 OR (2d) 562, 1985 CarswellOnt 1644, the Court recognizedthat

section 11 of the Ontario limitations statute made it possible in some circumstances for one joint tenant or tenant in common toobtain title to another co-owner’s interest through adverse possession. However, on the facts of that case, adverse possession was notmade out. The Court held that one co-owner did not wish to make use of the property during the period when the other did, and, as aresult, the use and possession “did not challenge in any way a use she wished to make of her property”. The Court found that the co-owner who had not used the property did not have an intention to abandon her ownership. D.

Is the Ontario and Maritime jurisprudence applicable in Alberta? [38] Alberta’s current statutory scheme contains no analogous provision to

section 12 of the 1833 Real Property Limitations Act.While the 1833 Act (including

section 12) was received in Alberta in the 1870s and was the law in this province for a number of years,the statute was repealed in 1935. The new Limitations Act, 1935 did not contain a provision similar to

section 12, nor do the currentLimitations Act, Law of Property Act, or Land Titles Act contain provisions that would have a similar effect. [39] Across Canada, Alberta is the only province (with the exception of Quebec) that does not have a

section 12 analogue in its

statutory scheme, but that also recognizes adverse possession. While such a provision also appears to be absent from other Torrensjurisdictions (such as British Columbia and Saskatchewan), these other Torrens provinces do not allow for adverse possession claims. [40] The express reliance on statutory authority in other jurisdictions for adverse possession in this circumstance, and the absenceof such a statutory provision in Alberta, suggests that there is little legal basis for an adverse possession claim by one tenant in commonagainst another in Alberta.

Notably, case law supporting actions for adverse possession claims between joint tenants, such as the findingsin Plant, Post Estate, and Gibbins, directly contradicts the Alberta position in Deal. This further reinforces the limited applicability ofother provinces’ jurisprudence on this issue. E. What is the effect of a lack of a

section 12 analogue in Alberta? [41] In the absence of legislation enabling an adverse possession claim, either the action for adverse possession would beprecluded entirely between tenants in common, or the pre-1833 common law would apply. There may be valid arguments for eitherconclusion. [42] The post-1833 common law on the topic relies on the

interpretation of analogous provisions to

section 12 of the 1833 statute.It may be appropriate, therefore, to consider the common law prior to 1833, as this would more closely reflect our current statutoryscheme. At common law, barring an exceptional circumstance, such as something in the nature of ouster, joint tenants and tenants incommon cannot make an adverse possession claim against their fellow co-owners (Culley v Doe d Taylerson (1840), 113 ER 697 at 700,11 Ad & El 1008; Plant at para 36).

The old concept of “ouster” has “overtones of confrontational, knowing removal of the true ownerfrom possession” (J A Pye (Oxford) Ltd v Graham, [2002] UKHL 30, at para 38, [2003] 1 AC 419). [43] However, the 1833 statute fundamentally altered the law of adverse possession, and did away with concepts such as ouster,and a distinction between adverse and non-adverse possession. These other developments have been incorporated into our modern-daylaw (Lutz at paras 17, 33). Further, adverse possession is primarily a statutory creature in Alberta today.

Thus, there is an argument thatthe pre-1833 common law is no longer relevant given the evolution of the law. If so, the precedent relating to s 12 of the 1833 Act wouldstill not apply in the Alberta context. However, this would also eliminate the possibility that actions that rise to the level of ouster couldsupport a successful claim. In this instance, a principled approach would likely reach the same conclusion as the Court in Deal: that thenature of co-ownership precludes an adverse possession claim. F.

Adverse possession and the Torrens system [44] Alberta is unique among Canadian provinces, in that it operates on a Torrens land titles system, but also recognizes claims inadverse possession. On its face, adverse possession appears contrary to several principles underlying the Torrens system, includingindefeasibility of title, the concept that an owner is not subject to ejectment, and the object of having all interests clearly recorded on thecertificate of title (Petersson at 1316; Ziff at 144-145). Many courts and commentators have found adverse possession to be inconsistentwith a Torrens system.

In Dobek at 310, Harvey CJA commented that adverse possession “seems not in entire harmony with our Torrenssystem under which titles can only be extinguished by registration”.

In 1967, Professor Jeremy Williams wrote that “[i]t is clear thatthere is a basic incompatibility between the policy of allowing the acquisition of title by limitation and the Land Titles Act the avowedaim of which is to allow complete reliance on the register” (Jeremy S Williams, “Title by Limitation in a Registered ConveyancingSystem” (1967) 6 Alta L Rev 67 at 68). [45] Throughout the rest of Canada, the prevailing view is that adverse possession claims and the Torrens system are incompatible(Petersson at 1295). Other provinces have explicitly abolished adverse possession in relation to Torrens lands: see e.g.

Land Titles Act,RSO 1990, c L-5, s 54; Land Title Act, RSBC 1996, c 250, s 23; Land Titles Act, 2000, SS 2000, c L-5.1, s 21; Real Property Act, CCSMc R30, s 61(1); Smith v National Trust Co (SCC), [1912], 45 SCR 618, 1 DLR 698; Gatz v Kiziw, (SCC), [1959] SCR 10, 16 DLR (2d) 215). In contrast, provinces that allow for adverse possession claims such as Ontario (in relation tonon-Torrens lands) and the Maritimes still generally operate on a registry system. [46] The law developed differently in Alberta.

Professor Williams identified the 1897 case of Belize Estate & Produce Co vQuilter, (1897), AC 367, 66 LJPC 53, as the catalyst for the current Alberta scheme (Williams at 68). In Belize Estate, the JudicialCommittee of the Privy Council considered a title by limitations claim in the context of a land registry system.

Lord Watson took theview that the right and title of the true owner would be absolutely extinguished by a squatter if the statutory period elapsed. [47] Despite fundamental differences between the Torrens registry system and the British Honduras Land Registry Act consideredin Belize Estate, the Alberta Courts were generally receptive to the doctrine in Belize Estate (see e.g. Harris v Keith (1911), (AB KB), 16 WLR 433, 3 Alta LR 222 (SC (TD)). In Wallace v Potter (1913), (AB KB), 10 DLR 594, 6Alta LR 83 (SC (TD)), Simmons J recognized some difficulty with this application.

Following the decision in Belize Estate, the Courtgranted a declaration to the plaintiff that he was the owner of the land in fee simple by virtue of adverse possession. However, SimmonsJ found that the statutory scheme would not authorize the Court to direct a cancellation of the existing certificate of title and issuance of anew title in favour of the plaintiff. Simmons J commented at 596: The result is that the plaintiff has acquired a title to the land which cannot be attacked by the person actually registered as the owner andin whose name a certificate of title is now upon the register.

The result is quite an anomalous one but the authority for removing theanomaly is in the legislature and not in the Courts. [48] The Legislature did respond, in 1921, with a provision that is essentially the same as

section 74 of the current Land Titles Act.This removed any lingering doubts regarding the applicability of adverse possession in Alberta’s Torrens context. As the Alberta Courtof Appeal commented in Lutz at 17-18, “[d]espite its incompatibility with the pure theory of a Torrens Statute adverse possession is hereto stay unless there is a change of policy by the Legislature”. [49] Thus, the fact that two individuals are on the registered title as tenants in common does not bar an adverse possession claim in

Alberta by virtue of Torrens principles. Analysis and Conclusion [ 50 ] While there is little precedent in Alberta addressing this issue, I conclude that the unity of possession inherent in a tenancy in common will generally preclude an adverse possession claim. Given the lack of a statutory provision explicitly authorizing adverse possession claims by one tenant in common against another, it is unlikely that a claim for adverse possession will succeed.

The fact that two tenants in common are both registered on title and have the right to undivided possession of the whole suggests that, by the very nature of a tenancy in common, one co-owner would never be on the property without the “knowledge” and “permission” of the other co- owner. As the Alberta Court of Appeal recently affirmed, adverse possession must be “adverse”, and consent of the registered owner will preclude a claim ( Reeder v Woodward ). [ 51 ] Though the law in other jurisdictions has developed in accordance with

section 12 of the 1833 Real Property Limitations Act , Alberta appears to be the exception to this rule. Other Canadian jurisdictions have allowed adverse possession claims by one tenant in common against another, though as seen in Blundon this may require “exceptional” circumstances. However, these jurisdictions have specific statutory provisions that provide for adverse possession claims as between joint tenants or tenants in common. Thus, the precedential value of these decisions is limited.

Based on Alberta’s statutory scheme and the evolution of the law since 1833, Alberta’s lack of explicit authorization for a claim between tenants in common may preclude such a claim. I conclude that it is extremely difficult, if not impossible, to establish such a claim in Alberta. [ 52 ] Even if an adverse possession claim is possible, for it to succeed, it is likely that the actions of one tenant in common would need to rise to the level of something akin to ouster.

As seen in Zigelstein , not wishing to make use of a property does not equate to an intention to abandon ownership, particularly in the context of tenants in common. [ 53 ] For the purposes of this appeal, it is not necessary for me to determine the broader issue of whether the law in Alberta precludes a successful adverse possession claim by a co-tenant in all cases. The Master correctly concluded that the evidence in this case does not support the Appellant’s claim. I agree with the Master that the Appellant failed to satisfy the burden of proving that he had adversely possessed Mr.

Verhulst’s 50% interest as a tenant in common. [ 54 ] The evidence supported the Master’s conclusion that Mr. Verhulst was indifferent to the Property once the logging operation had ceased. He correctly concluded that this indifference arose out of his intended use of the Property as an investment vehicle, and was not an indication that he had given up either possession or an ownership interest.

I conclude that the Master did not err in also concluding that the Appellant’s locating a trailer on a portion of the larger parcel was not enough to establish a claim to some or all of the larger parcel, or to the river lots located some distance away. [ 55 ] The Appellant argued that the Master was unduly influenced by Ms. Petersson’s article. It is clear that the Master considered a number of authorities, including academic articles, some of which were relied on by the Appellant himself. I see no error in the Master having considered these materials.

The cases considered by him support the conclusion reached by him. Similarly, that the Master mentioned in his Reasons that the County had not been charging taxes for the trailer, does not support his contention that the Master placed too much weight on that piece of evidence. It is not clear that the Master ignored the evidence of Mr.

Smith, but if he placed little or no weight on it, I cannot conclude that this was an error, since it was hearsay, very vague and inconclusive in any event. [ 56 ] While no deference may be required on appeal of a Master’s decision, I agree with both the Master’s conclusion and his Reasons therefore. [ 57 ] Accordingly, the appeal must fail and is dismissed. [ 58 ] The Respondent is entitled to costs of the appeal. The Respondent requested enhanced costs for three reasons:

a) because the Appellant’s argument was filed late under the Practice Note, which the Respondent’s counsel concedes did not inconvenience him greatly; and

b) the Respondent had made a more favourable offer to the Appellant than the result obtained through the Decision; and

c) the Master ought to have awarded the Respondent the full cost of the appraisal of the Property, rather than half, since it was obtained to facilitate a proper resolution of the dispute, and was used by the Master in determining the appropriate remedy. [ 59 ] The Appellant disagrees with the Respondent’s position on costs. In relation to the filing of his argument, the Appellant points out that it was not necessary to file an argument, but he did so because he felt it was important to raise the recent Court of Appeal decision in Reeder .

In relation to the appraisal, the Appellant argues that it is unusual for a party to incur such a large disbursement, the Master was aware of the offer when he set the costs award, and the costs award was not appealed. [ 60 ] Costs are discretionary and I am not persuaded that the Master made any error in setting costs in relation to the applications. [ 61 ] There is nothing in the evidence before me to suggest that enhanced costs are appropriate in connection with the appeal.

While the Appellant was unsuccessful, there is nothing before me to suggest that anything has occurred since the Master’s Decision was rendered, which would attract an enhanced costs award. Therefore, the Respondent is entitled to costs of the appeal in accordance with

Schedule C to the Rules of Court . [ 62 ] If the parties are unable to agree on costs, they are to contact my assistant within 30 days of the issuance of these Reasons for Decision in order to arrange a time at which the matter of costs may be further addressed.

Heard on the 18 th day of October, 2016. Dated at the City of Edmonton, Alberta this 25 th day of November, 2016. D.L. Shelley J.C.Q.B.A. Appearances: William A. Dushenski Blakely & Dushenski for the Respondent, Verhulst for the Cross-Applicant, Verhulst J. Royal Nickerson, Q.C. Nickerson Roberts Holinski & Mercer for the Applicant, Denesik for the Cross-Respondent, Denesik