The Court of Appeal took the unusual step of raising a new issue on its own motion in Samborski Garden Supplies Ltd. v. MacDonald, 2015 MBCA 26, and then deciding the case on that issue. The court found it was unnecessary to decide whether the trial judge had committed a reversible error (in finding that a conditional use order expired because it was not “acted upon” within one year of being granted), since in Manitoba, discontinuing a non-conforming use of land for more than 12 consecutive months causes the acquired right to lapse under (s.91 (formerly s.54) of The Planning Act).

In Howarth v. Farguson et al., 2015 MBCA 21, the court upheld the lower court order granting a statutory easement to cottage owners who had inadvertently and minimally encroached on a neighbour’s property in 1996, but increased the annual compensation award from $100 to $400 and ordered that $4400 in back compensation be paid.

A son with a remainder interest in property purchased by his mother (who held the life interest) was an “owner” of the property within the meaning of the definition of a “homestead” set out in The Homesteads Act according to the court in MacDonald et al. v. Barto, 2015 MBQB 33, and his former common law partner had homestead rights in the property they had occupied for five years. The court dismissed the application by the mother and son for an order terminating the homestead rights, but exercised its discretion to dispense with consent to the son’s disposition of his interest in the property to his mother. The court also declined to order any compensation for lost homestead rights, given the fact that the common law partner had not contributed to the property in any way, she and the son had left it in a dilapidated condition when they moved out, and she had taken no steps to pursue an FPA accounting in the six years since separation.

In the absence of evidence to the contrary, s. 59 of The Real Property Act is full answer and defence to a claim for beneficial ownership of property according to the court in Hyczkewycz v. Hupe and Hupe, 2015 MBQB 34. The court dismissed the claim by the mother of one of the parties to a family property dispute that a portion of the real property holdings were held in trust for her. The mother presented no documentary evidence to support her claim, which the son-in-law disputed.

In Re The Esther G. Castanera Scholarship Fund, 2015 MBQB 28, the court tackles the interesting issue of how universities should treat testamentary gifts whose historical purposes may not conform to current University or public policies or human rights legislation. The court was asked to vary a gift by a successful female scientist who had established a scholarship fund to benefit female graduates of her high school who were pursuing science at the University of Manitoba. By the time the gift became effective it contravened a University policy on non-acceptance of discriminatory gifts. The court had reservations about the University’s proposal to vary the gift (to allow applications from men and to broaden the catchment area to rural Manitoba), finding that such variations might not reflect the testatrix’s wishes. A one-size-fits-all gift policy is not appropriate, said the court, and every gift requires a contextual and qualitative assessment when a variation is proposed.

In Re Chrustie; Chrustie et al. v. Chrustie et al., 2015 MBQB 25, two co-executor siblings were unsuccessful in challenging a codicil adding a previously excluded brother as an equal beneficiary under their father’s will. The court rejected the sisters’ arguments that their father lacked the testamentary capacity to execute the codicil (due to cognitive impairment resulting from his neurodegenerative condition) and that he had been unduly influenced by his second wife, who had secretly facilitated the reconciliation with the estranged son. Although more should have been done to substantiate and document the testator’s capacity according to the court, the totality of the evidence suggested that he had the capacity to execute the simple codicil in spite of his medical condition.

In Riverside Realty & Construction Ltd. et al. v. The City of Winnipeg, 2015 MBQB 20, the court dismissed the plaintiff real estate developers’ summary judgment motion for return of monies levied by the city in 1986 but never used, they argued, for the intended purpose of “phased” road construction. The court disagreed with the developers’ characterization of the levy, finding that it was, in essence, a development charge and not a local improvement levy and therefore properly enacted under s. 637(23)(e)(iii) of The City of Winnipeg Act. The court also found that the plaintiffs’ unjust enrichment claim was statute-barred.

The Property Registry is launching Titles Online, its new online title search system, on April 26, 2015, replacing the existing Manitoba Land Titles System. If you have not already arranged for the Firm ID, User ID and Online Deposit Account required to access the system you will need to act immediately. For further details see the titles online instructions and checklist, review the Documents Online User Guide, and the Survey Plans User Guide, and visit the Personal Property Registry site.  Fees for a title search will also change effective April 26, 2015, to $23. The Property Registry launched a new land transfer tax calculator on February 23, 2015, allowing users to calculate fractional interests in accordance with the formula set out in The Tax Administration and Miscellaneous Taxes Act.

Changes To The Use Of Life Interest Trusts and Changes To Charitable Donation Rules For Estates – these BLG publications both deal with the “new era of estate planning” occasioned by the enactment of Bill 43 (it received royal assent in December 2014 and proposes Income Tax Act changes effective January 2016). Of Digital Legacies and Changes to Facebook’s Memorial Pages – this Slaw post discusses Legacy Contact, Facebook’s latest response to the issue of digital assets, and who controls a Facebook account when a user dies.

Wills that Work: Practical and Proficient Drafting (DVD Replay) – if you missed the sold out live presentation of this informative program you’ll want to register soon to attend the video replay on April 27, 2015, from 1:00 to 4:00 pm. Presenters Eleanor Wiebe, Q.C. and Caroline Kiva review the common issues in drafting wills and discuss how to avoid difficulties. Precedent material and the book Drafting Wills in Canada: A Lawyer's Practical Guide (available only while supplies last) are included in the registration fee. Leading communications consultant Steve Hughes is presenting two practical programs at the Law Society this spring: Influence: The Art & Science of Changing Minds – learn how to influence clients, colleagues, and opposing counsel to see things your way without resorting to manipulation at this half-day program on April 16, 2015. Dynamic Presentation Skills for Lawyers - communicating effectively to a wide array of audiences is a skill you will use throughout your legal career. Learn how to craft your presentations for maximum impact and what delivery techniques work at this morning session on April 17, 2015. Lawyers and Governing Boards: Avoiding Common Pitfalls – Presenters Bruce King, Doug Finkbeiner, QC, and Tana Christianson will discuss the risks and responsibilities that come with board directorships and suggest strategies to minimize potential liabilities at this lunch program on June 10, 2015. Register now to attend in person or by tele-presentation.

The MBA’s Real Property Law section will meet twice in April to discuss topics of interest to real estate lawyers: Operation of the New Manitoba Farm Industry Board – a program specialist from the Farm Industry Board will discuss the board’s expanded role in dealing with The Farm Lands Ownership Act, The Farm Machinery and Equipment Act, The Family Farm Protection Act and The Farm Practices Protection Act at this evening program on April 9, 2015. The new Manitoba Property Registry Client Service Improvement Initiative project "Titles Online" – Representatives of the Property Registry will discuss the upcoming changes to Manitoba’s land titles system at this evening program on April 29, 2015. April and May are bring a buddy months so consider inviting a non-member to a section meeting.