Casual Legal: Amending a title to reflect a natural boundary
By Shauna Finlay
Reynolds Mirth Richards Farmer LLP
Alberta Municipalities Casual Legal Service Provider
A recent decision of the Alberta Court of Appeal provides a good primer on the law of accretion – which is a subset of riparian rights that may attach to a parcel of land. Essentially, accretion occurs where the legal boundaries of a parcel of land change due to the retreating natural boundary of a water body. While a municipality is unlikely to be directly involved in determining these rights, some familiarity with them is helpful because a formal determination of these rights may be necessary in connection with a party’s development application or in dealing with access to waterfront issues.
The issue in this case was whether the Registrar of Land Titles had authority to amend the legal description of a parcel of land to include a large portion of accreted land. Ultimately, the Court of Appeal determined that the Registrar did not have authority to do so because the portion of land created by the retreating shoreline did not accrete to the landowner.
Several aspects of the decision are worth noting.
First, the Court of Appeal noted that the legal effect of the Registrar’s decision to change the title was procedural rather than substantive. In other words, when someone applies to change a title to reflect a natural boundary, the change to the title is to be reflective of rights that already exist. The decision to change the title does not create those rights.
Second, the Court confirmed previous statements of the law of accretion. It said that for a landowner’s parcel of land to be increased through accretion, the owner’s lands must have been bounded by the body of water and continue to be bounded by the water when it recedes and leaves land behind. In other words, both before and after the alleged accretion, the lands must be bounded by the natural boundary of the water body. If lands are not bounded by a natural boundary of the water body before the accretion, then lands created by the accretion will not belong that landowner.
That was the case here. By virtue of an intervening subdivision, the owner’s lands no longer shared a boundary with the water body. While the description of the owner’s title seemed to suggest their ownership interests shared a boundary with the water body, the intervening subdivision had severed this connection. Therefore, lands created by the retreating shoreline did not accrete to the applicant landowner.
Where there are private lots within a municipality that abut the natural boundary of a waterbody and a party argues it is entitled to ownership of new lands created by accretion, it may be important to understand where rights to the accreted lands may arise, along with where the Crown’s ownership of beds and shores of waterbodies begins.
To access Alberta Municipalities Casual Legal Helpline, Alberta Municipalities members can call toll-free to 1-800-661-7673 or send an casuallegal [at] abmunis.ca (email) to reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please call 310-MUNI (6864) or send an riskcontrol [at] abmunis.ca (email) to speak to Alberta Municipalities Risk Management staff. Any Regular or Associate member of Alberta Municipalities can access the Casual Legal Service.
DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.