eLaw

eLaw - Property & Succession Update | June 2017 - No. 87

The Law Society of Manitoba
Professional Education and Competence

eLaw Property & Succession Update

June 2017

In This Issue

Acquisitive Prescription Trumps Registered Title: SCC
Denial of Pool Permit Reasonable: MBQB
“Fair or Not, the Law Must be Applied”: MBQB
Zoning By-Law Consistent With Development Plan: MBQB
Legislative Update
Changes to Rule 74
Property Registry Notice and Directives
Court of Queen’s Bench Notice
Recommended Reading
Continuing Professional Development: LSM
Summer CPD Replays: LSM
MBA Program

Acquisitive Prescription Trumps Registered Title: SCC

The appeal in Ostiguy v. Allie, 2017 SCC 22, “highlights the occasional friction between acquisitive prescription and the apparent certainty of entries in the land register,” according to the Supreme Court at para. 1 of the judgment. The court ruled in favour of a family asserting ownership by acquisitive prescription of a parking space on contiguous property. The family had used the parking space for 17 years with the knowledge of their then-neighbour, but had never taken steps to have their right to acquisitive prescription recognized after the requisite ten years of peaceful, continuous, public and unequivocal possession. New owners of the property applied for an injunction to prevent the family from continuing to park there. The question of law considered by the Supreme Court was whether acquisitive prescription can be set up against a new owner whose title was registered in the land register before the possessor’s right was asserted in court. The majority confirmed it could. These articles discuss the decision:

SCC rules Quebec property owner has acquisitive prescription in neighbours’ parking spots – Legal Feeds

The Supreme Court confirms the broad principles of acquisitive prescription in real estate law – Fasken Martineau

Buyer Beware: SCC Decision a Warning to Property Purchasers – IMK

Denial of Pool Permit Reasonable: MBQB

Owners of a lot on the Red River were unsuccessful in challenging the City’s decision to deny them a permit to construct an in-ground pool on a portion of their property designated as a floodway area in Pflug v. Winnipeg (City of), 2017 MBQB 86. The court rejected the applicants’ argument that The City of Winnipeg Charter does not specifically prohibit building pools in the floodway area and that the term “excavations” (one of the “works” prohibited in s.158(2)) does not include in-ground swimming pools. It also rejected the applicants’ contention that the City had treated them unfairly or inconsistently relative to others in the area who had built pools.

“Fair or Not, the Law Must be Applied”: MBQB

In Gorrie Estate v. Gorrie, 2017 MBQB 74, the court found there were no equitable arguments to be made by a self-represented litigant seeking to protect her substantial pension (accumulated during an almost 30-year marriage) from the claims of her late husband’s estate. The husband had filed a petition for divorce and executed a new will prior to his death 15 months post-separation. Among other things, the wife argued for an unequal division of family property (even if the court had jurisdiction to make such an order after death the pension would still be divided, said the court); an order of lump sum spousal support equivalent to the pension entitlement (unless secured against an estate, support claims end on death); and an order that the parties intended to reconcile (the court found no evidence to support this claim).

Zoning By-Law Consistent With Development Plan: MBQB

A municipal zoning by-law designating property as an agricultural zone and requiring conditional use approval for sand, gravel pits, and mining operations is not inconsistent with the Planning District Development Plan designating the property as a medium-quality aggregate extraction area, according to the court in 6901124 Manitoba Ltd. et al. v. Rural Municipality of Rosser et al., 2017 MBQB 58. The court rejected the quarry company’s argument that the Development Plan policy favours aggregate supplies and that mineral resources are to be protected from land uses which would restrict exploration and development. According to the court, competing policy objectives in the Development Plan (protecting both agricultural activity and resource development), underscore the fact that it is essentially a policy document. The overall legislative intent is to protect resources and control development by empowering municipalities (which can be responsive to local conditions which may change over time) to pass by-laws, including by-laws permitting a conditional use.

Legislative Update

Bill 5, The City of Winnipeg Charter Amendment, Planning Amendment and Real Property Amendment Act (Conforming to Construction Standards Through Agreements), received royal assent and came into force June 1, 2017. It amends The City of Winnipeg Charter, The Planning Act and The Real Property Act to permit building code and zoning requirements concerning setbacks and access to streets to be met by agreements between property owners and permit issuers which, once registered, run with the land. For more detail see the explanatory note.

Changes to Rule 74

Practitioners are reminded of recent amendments to Rule 74, one of which is already in force, and others which will come into force on July 1, 2017. As detailed in this notice from the Court of Queen’s Bench, these include the recent repeal of Rule 74.13 (concerning deposit of wills with the Registrar), as well as amendments to Rules 74.12 (concerning procedures for passing of accounts) and 74.14 (detailing changes to Form 74AA). The Law Society is presenting a cpd program on the changes on June 9, 2017. See below for the details.

Property Registry Notice and Directives

Plans deposited in the Manitoba Land Titles System for examination – this Registrar-General directive indicates that effective June 26, 2017, all plans deposited for examination in the Manitoba Land Titles System must be deposited online through Plan Deposit Submissions.

Use of electronic registration will become mandatory for law firms and other high volume registrants on April 3, 2018. For further details see the announcement issued April 13, 2017 and this notice which sets out the system requirements for electronic registration. Users who typically submit more than 100 documents per year will be required to use eRegistration beginning October 1, 2018. Casual and low-volume customers will continue to be able to file paper-based forms. This Legal Feeds article discusses the new system.

Court of Queen’s Bench Notice

The Court of Queen’s Bench issued a notice concerning the hearing of civil motions during the summer court recess on May 5, 2017.

Recommended Reading

Easements and Agreements – Ned Brown discusses what the BC Supreme Court’s conclusions in the "Vineyards Case” suggest to parties contemplating easements and agreements.

Estate Planning In The Age Of Assisted Dying - this McInnes Cooper article reviews the current law on medically assisted dying and identifies three key considerations those undertaking estate planning in the age of assisted dying should bear in mind.

Estate Planning for Blended Families – this Pitblado LLP whitepaper illustrates how blended families complicate estate planning and why making a plan is essential.

Ontario Court of Appeal Denies Relief from Forfeiture of Deposit in Real Estate Transaction – this BLG blog post discusses an Ontario Court of Appeal decision considering when courts may exercise equitable jurisdiction to grant relief from forfeiture in failed real estate transactions.

Continuing Professional Development: LSM

Changes to Probate QBR – presenters from the Court of Queen’s Bench and the Public Trustee will discuss changes to QB Rules 74.12 and 74.14 (coming into effect on July 1, 2017) and clarify recommended practices at this lunch session on June 9, 2017. Discounts are available for teleconference registrants.

Webinar: Avoiding Cyber Dangers – the Law Society is replaying this very practical webinar on June 13, 2017, with a live question period at the end with Law Society staff. Legal technology and risk management guru Dan Pinnington will teach you how to protect yourself and your firm from hacked emails, malware, phishing scams, and other cybercrime vulnerabilities. Group registrants are eligible for discounts.

Summer CPD Replays: LSM

The CPD Replay schedule is now posted on the LSM website. There are several programs of interest to solicitors, including both of the sold out hot topics programs (Real Estate and Wills and Estates). If you missed attending one of these popular programs the first time around, replays are a cost effective way to catch up on your CPD hours during the slower paced summer months. Find a program and date that works for you, with a wide variety of programming topics offered from July 10 to 28, 2017.

Don't see a time that fits your schedule? These programs are also available for purchase on DVD or can be accessed through cpdonline and be viewed at your own convenience.

MBA Program

Debunking the Myth. Trust Companies – Too expensive or a viable option? – a lawyer and a trust company representative will discuss the benefits of using the services of a trust company in estate work at this Wills and Estates section lunch program on June 21, 2017. The program will be held in the 2nd Floor Conference Room, 444 St. Mary Ave, from noon to 1:30 pm.

ISSN 1916-3916

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