Squatting Does Not Stand: Alberta Abolishes Adverse Possession

• Ben
  Throndson

  Ben
  Throndson

  view bio

In late 2022, the Alberta Legislature significantly changed real estate law in the Province by eliminating adverse possession of real property, commonly known as squatter’s rights.

On December 15, 2022, Bill 3, the Property Rights Statutes Amendment Act, 2022 (the “Act”) came into effect, amending Alberta’s Law of Property Act, Land Titles Act, and Limitations Act to prevent claimants from acquiring any right or title to land through adverse possession. Claims filed in Court prior to this date may still be considered, but no new claims for adverse possession will be successful.

As detailed in a 2020 blog post by RMRF’s Jeff Daniels, adverse possession was an interesting aspect of Alberta real estate law that allowed a trespasser to acquire ownership of a piece of land if the registered landowner failed to take action to remove a trespasser during a 10 year limitation period.

After 10 years of exclusive possession, the trespasser or squatter could “extinguish” the owner’s rights to the adversely possessed lands and seek a court order “quieting title”.

The legal test for adverse possession was relatively simple:

• First, the claimant was required to be in possession, and the owner must be out of possession.
• Second, the possession must be exclusive, continuous, open or visible and notorious for the 10-year limitation period.

The possession also needed to be adverse, meaning that the occupation of the land could not be with the owner’s consent.  A person could not be an adverse possessor if they had a license or lease to use or occupy the land. An encroachment agreement, easement, or right of way would have defeated a claim for adverse possession.

Through adverse possession, a registered owner of land could lose title to a trespasser who had never paid to purchase the lands, provided the owner failed to take the necessary action in time to remove the trespasser. The underlying rationale was that the law should maximize the economic value of land by recognizing the person who was making actual use of the land (the adverse possessor) as having a stronger claim to ownership than an absentee owner.

In its application, adverse possession was seen by many to be unfair to the registered owner. For this reason, the elimination of adverse possession in Alberta has been a topic of discussion for some time, with unsuccessful attempts to abolish it in 2012, 2017, and 2018 through Private Member’s Bills (legislation not sponsored by the government of the day). The Act represents the first time that the elimination of adverse possession was put forward in a government bill. Alberta joins Saskatchewan, New Brunswick, and Yukon as having completely abolished adverse possession, while several other Canadian jurisdictions have significantly restricted its availability. In Alberta, however, squatting has made its last stand.

_{This post is meant to provide information only and is not intended to provide legal advice. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this post to be outdated.}