With water levels receding in many areas, one concern from a real estate perspective is how the appearance of land that was once covered by water impacts the ownership of the surrounding property. For instance, if a person owns a home or cottage situated along a waterfront, where the body of water is owned by the Crown, if the water recedes over time and exposes several feet of newly uncovered land, does ownership fall to the landowner or to the government? This type of land is referred to as “accreted land”, and the ownership issues pertaining to accreted land can become quite complex. This issue arose in a recent Court of Appeal case between neighbours residing near Gull Lake, located between Calgary and Edmonton.
This article will review the basic principles of the law around ownership of waterfront property in Alberta, as well as the logistics involved in ownership adjustments when new land is exposed due to receding water levels.
Waterfront Property in Alberta: How Land Ownership is Defined
Under s. 3 of the Public Lands Act, the beds and shores of most public lakes, streams, and rivers, as well as wetlands if they are permanent and naturally-occurring, are owned by the province. There are some exceptions, including land that was formerly owned by the Hudson’s Bay Company which was eventually sold off to private owners, or for federally owned land in national parks, reservations, and military reserves.
The term “bed and shore” is defined in the Surveys Act as “land covered so long by water as to wrest it from vegetation or as to mark a distinct character on the vegetation where it extends into the water or onto the soil itself”. The line separating the public shoreline from the bordering private land is called the “legal bank” or the “ordinary high water mark”. This demarcation will be defined on surveys of property where privately owned land abuts the shore of a public waterway.
What is Accreted Land and How Can It Change Rights to Ownership?
Accretion, in the context of land, is defined by the province as “a gradual natural process of permanent recession of a water body resulting in the transformation of landscape from a bed and shore to dry upland”. On lands where accretion has affected the natural boundary of a property, the owner of the private land adjacent to the water can apply under s. 89 of the Land Titles Act to have the boundary of their property redrawn to reflect the new land, or the “accreted land”.
In addition to the application itself, the owner must also submit evidence in the form of a plan of survey, which shows how the natural boundary has changed or disappeared. Further, an applicant must obtain consent to the amendment by owners of neighbouring lands which may be adversely affected by the change. If the application is approved, the new survey will be registered on title, and the legal description of the property will be amended to reflect the new boundary.
Importantly, the Registrar may only exercise power to amend the description of the land if the following two conditions are satisfied with respect to the land itself:
- The land adjoins land owned by the Crown in right of Alberta; and
- The land had a natural boundary with the Crown land that no longer exists.
These conditions were the focus of a recent decision by the Alberta Court of Appeal, when neighbouring owners appealed the Registrar’s decision to amend the description of land per the respondents’ application.
Chambers Judge: The Natural Boundary Between Private and Crown Land Did Not Need to Exist Prior to Accretion
In MacKenzie v. Alberta (Registrar, North Alberta Land Registration District), the owners of a parcel of land, hereinafter referred to as the “Griffins”, successfully applied to the local Registrar in 2018 to have their property description amended to include accreted land along the shore of Gull Lake. In 2019, the Griffins fenced off their property, including the accreted land which was now included in the legal description of their property. Several neighbours to the south of the Griffins (“the appellants”) had long used the accreted land to access the lake and could no longer do so once the fence was erected. The Griffins told the appellants that they could continue to access the lake through the accreted land only if they agreed to enter into a licence agreement with the Griffins first.
The appellants brought a claim before the Court of Queen’s Bench seeking an order that the Registrar did not have authority to amend the legal description of the Griffins’ land in 2018, for two reasons:
- The Griffins’ land, prior to accretion, did not adjoin the shoreline of Gull Lake; and
- The appellants owned land that was adversely affected by the amendment, yet their consent to the change had not been sought or granted as part of the Griffins’ application.
The Chambers judge dismissed the application, finding that the Griffins’ land had adjoined Gull Lake prior to accretion. Even if the land hadn’t shared a natural boundary with the lake prior to accretion, the Registrar had the discretion to amend the description because the accretion caused the Griffin’s property to adjoin the lake. On the point of consent, the Chambers judge held that the appellants’ consent was not needed for the application because the change to the legal description did not change the legal ownership of the accreted land. The description was simply amended to reflect the right of ownership that had always existed since the accreted land had emerged.
Court of Appeal: Lower Court Misinterpreted Conditions Under s. 89(1) of the Land Titles Act
The Court of Appeal found that the Chambers’ judge had misinterpreted s. 89 of the Land Titles Act with respect to the conditions that must be met to amend the description. The respondents had argued that under the legislation, the property in question must have shared a natural boundary with the waterfront prior to accretion as well as after accretion. The Court of Appeal found this argument to be more consistent with the language of s. 89(1), which says that the lands in question must “have had a natural boundary that no longer exists”.
As a result, the Court ordered the Registrar to cancel the registration of the new survey added to title in 2018, and to amend the legal description of the Griffin’s land to remove the accreted land in question. The Court rejected the appellants’ request to declare the accreted land ‘ownerless’ and name the Crown as the owner by default, which would allow them to continue to use the land to access the lake. The Court found that, just because the Griffins were not the owners of the accreted land, this did not mean that there were no other possible rightful owners who could emerge and stake a rightful claim to the land.
Calgary Residential Real Estate Lawyers Offering Comprehensive Services to Buyers and Sellers
At DBH Law, our team of real estate lawyers takes a pragmatic approach to the law means our clients receive competent, modern, professional service in a variety of commercial and residential real estate services. We represent clients in a number of real estate services, including purchases and sales, financing, misrepresentation issues, family transfers, and more. Contact the experienced residential real estate law team at DBH Law in Calgary to find out how we can help you navigate your next residential real estate transaction. You can reach us online or by phone at 403.252.9937.