Casual Legal: Injurious affection

By Greg Weber
Reynolds Mirth Richards Farmer LLP
Alberta Municipalities Casual Legal Service Provider

Whenever land is expropriated, owners gain access to the compensation regime set out in the Expropriation Act. This can be significantly more expansive than what would otherwise be available for owners in similar situations whose properties are not expropriated.

A perfect example of this is an owner’s claim for “injurious affection.” In a nutshell, injurious affection is a type of claim that arises when a portion of land is taken, or a public work is built near a property, that reduces the market value of the remaining land.

In section 56 of the Expropriation Act, an owner is entitled to be compensated for injurious affection when it arises from “the taking or from the construction or use of the works for which the land is acquired.” As this provision is only engaged when there is a taking, an owner’s legal fees will also be paid for by the municipality and must be claimed within one year from service of the Notice of Proposed Payment, which is the very last step of the process to actually take the land. Injurious affection claims in the expropriation context, then, can provide compensation for harm to the market value of the remaining land caused by the construction, use and existence of a public work.

In contrast, section 534 of the Municipal Government Act (MGA) s much narrower. It only applies to properties that abut the constructed work and only provides compensation for injurious affection caused by “the existence, but not the construction, erection or use, of a public work....” This means that reduced market value caused by construction noise and unsightly conditions during construction is not compensable to owners unless there is an expropriation. The same is true for losses caused by the noise and disruption from the use of the public work. In addition to further restrictions in section 534 not set out in this article, owners are also not entitled to be reimbursed for their legal fees incurred in pursuing their claims. Owners must also advance a section 534 claim within 60 days of receiving notice from the municipality that the construction of the public work is complete.

Section 534 of the MGA is far more restrictive than section 56 of the Expropriation Act, so municipalities should be motivated to not take any interests in land unless absolutely necessary. If any land is required to be expropriated, even if it is only for temporary workspace, the municipality will lose the benefit of the highly restrictive section 534 MGA injurious affection provision, and will face a potentially much higher risk of liability from an affected owner who abuts the public work, but also had an interest in land expropriated.

To access Alberta Municipalities Casual Legal Helpline, Alberta Municipalities members can call toll-free to 1-800-661-7673 or send an casuallegal [at] (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] (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.