Case 10 - The Missing Heir

Summary

Francis, a widower, has three children: Thomas, Peter, and Margaret. Francis dies. His children inherit a piece of land together, which acquisition is registered. Margaret emigrates, and the other two have no contact with her. Thomas and Peter start to use the whole land together as agricultural land without any consideration for the interests of Margaret. After 31 years, Margaret returns. She sues her brothers, demanding a payment for the use of her part of the land, a share in the profits that her brothers made, and that she be allowed to use the land.

KEY ISSUES

This case raises the issue of whether and, if so, under what conditions persons who own a piece of land together with another person acquire that person’s share in the land through long-term use. The reporters also need to comment on the extent to which that person has a claim to the profits derived from the land.

ALBERTA, CANADA

OPERATIVE RULES

Concurrent ownership at common law, whether in the form of joint tenancy or tenancy in common, is characterised by ‘unity of possession’. Each co-owner is entitled equally to possession of the entirety of the property. Accordingly, possession by one co-owner, even if exclusive, could never work to the detriment of any other co-owner, since such possession is not regarded as ‘adverse’. Put another way, a co-owner is not a trespasser on his or her own land.

The financial rights and obligations of co-tenants are leftto them to determine, and the law interferes only during termination of co-ownership. In the course of partition or sale of land held under concurrent ownership, the court may make all allowances that are just and fair under the circumstances. In Alberta, the common law principles are codified, and a court is instructed to consider in determining if an accounting, contribution or adjustment should take place or compensation be paid for an unequal division of the land, inter alia, whether one co-owner excluded another co-owner from the land; whether a co-owner in possession was a tenant, bailiffor agent of another co-owner; whether a co-owner received from third parties more than a just share of the rents from the land or profits from the reasonable removal of its natural resources;