A Guide to Property Rights
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Assessing Property Rights and Land Use in Alberta. This one-year research project focused on property rights and land use regulation in Alberta. DOWNLOAD THE GUIDEor, Explore this mini site where we've made each section in the guide its own web page. |
PART ONE: Property Rights in Alberta
Property rights can be complex and difficult to define. Landowners typically expect to: use and enjoy their property; develop the property as desired; exclude others from the property; and sell it to whomever they choose – all with minimal interference from the government or others.
While owning property involves a variety of rights, it also confers obligations and liabilities. The scope of these rights and obligations varies from one country to the next and even from one province to the next depending on how the law defines and protects these rights.
This part of the Guide describes the nature of property rights in Alberta and includes discussion of how property rights are protected in Canadian law.
What are Property Rights?Property rights can be complex and difficult to define. Some legal experts define property as a legally protected expectation to derive an advantage from some resource to the exclusion of others. Learn more... |
How does the common law protect rights in Canada?The common law recognizes that all Albertans have broad rights to own, use, and enjoy property. But such rights are not unlimited. Learn more... |
Subsurface Property RightsOwnership of the surface extends to the airspace above and to the subsurface below. Learn more... |
Are property rights protected in Canada?Canadians are sometimes surprised to learn that the right to property is not afforded the same constitutional protection that exists in other countries. Learn more... |
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PART TWO: Taking Property
Expropriation – that is, the outright taking of private land for public purposes – triggers a right to compensation in accordance with the provincial Expropriation Act. On the other hand, according to the Canadian case law, if the government regulates private property, but does not acquire the land itself, there is rarely a right to compensation – even if the restrictions are very severe or result in a drastic loss of value. In this sense, Canadian law differs from the law in the United States and some other countries.
This part of the Guide discusses the process of expropriation and principles that govern the payment of compensation to the owner. The section also provides several examples that show when Albertans can expect compensation for restrictions placed on the use of their land.
What is expropriation?Under Canadian law as it currently stands, the outright taking of private land for public purposes ordinarily triggers a right to compensation in accordance with expropriation legislation. Learn more... |
How does expropriation happen?When an expropriating authority decides to acquire private land, it must first notify every person who has an interest in the land it intends to take. The Expropriation Act specifies the information that must be included in the notice of intention. Learn more... |
Who determines the amount of compensation and how?The Expropriation Act requires the expropriating authority to propose terms of compensation to the owner within 90 days of the approval of the expropriation. Learn more... |
Principles of compensationWhere land is expropriated, the compensation to the owner is based on the market value of the land and a number of other factors. Learn more... |
What is a "Regulatory" or "Constructive" taking?A public authority may regulate the use of land or restrict other property rights of the owner. The landowner may feel the impact of the regulation as acutely as if the land had been expropriated. Learn more... |
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PART THREE: Recent Legislation
The recent growth of the natural resource sector – in a province where over 80 per cent of the population lives in urban centres – has resulted in competition between different land uses. This pressure on land prompted the province to develop the Land-use Framework (2008) and Alberta Land Stewardship Act (ALSA; 2009) to achieve long-term economic, social and environmental goals. This section of the Guide discusses some of the implications of this important legislation.
ALSA authorizes Cabinet to adopt regional plans that are legally binding on private lands and every land use authority in the province. A regional plan may restrict a landowner’s rights to use or develop land, but as long as some reasonable private use of the property is left to the owner, it is likely that no compensation is payable. On the other hand, if a “conservation directive” to protect or enhance environmental, scenic or agricultural values is employed in an ALSA regional plan, the Act specifically provides a right to compensation to the title holder who is affected by the conservation directive – as if expropriation has taken place. In this regard, the Alberta’s legislation is arguably more generous than the law elsewhere in Canada.
In addition to ALSA, the Guide elaborates on other issues surrounding other property legislation in the province involving subsurface and mineral rights.
History of Planning Legislation in AlbertaLand use regulations in Alberta date back to the early 20th century. Calgary and Edmonton passed bylaws restricting development as early as 1904 and 1906, respectively. Learn more... |
The Land-Use FrameworkIn 2005, Alberta announced its intention to create a land-use framework. Learn more... |
Alberta Land Stewardship Act (ALSA)ALSA authorizes the provincial Cabinet to establish planning regions and adopt a statutory plan for each region. Learn more... |
ALSA, Property Rights and CompensationLike most planning legislation, ALSA conflicted with the expectations of some landowners and other interest holders, and was not well received by everyone in the province. Learn more... |
Clarifications of Subsurface Ownership RightsIn recent decades, the Alberta government has amended several pieces of legislation to address some of the uncertainties over subsurface resource rights in the areas of natural gas storage and the ownership of both coalbed methane and the pore space beneath the land for the purpose of storing captured carbon. Learn more... |
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Helpful links:
Free online access to Canadian Legislation and Case Law
The Property Rights Advocate Office
Land-Use Framework and Regional Plans
ABLAWG: The University of Calgary Faculty of Law Blog on Developments in Alberta Law