English Law Commission Consultation on Digital Assets in Private International Law

The Law Commission in England has launched a short consultation exercise on proposed legislation on digital assets and electronic trade documents.

A summary of the Commission's work on the issue can be found on the project's page:

"The UK Government asked the Law Commission to make recommendations for reform to ensure that the law is capable of accommodating both crypto-tokens and other digital assets in a way which allows the possibilities of this type of technology to flourish."

"In our final report, we conclude that the common law system in England and Wales is well placed to provide a coherent and globally relevant regime for existing and new types of digital asset."

"We conclude that the flexibility of common law allows for the recognition of a distinct category of personal property that can better recognise, accommodate and protect the unique features of certain digital assets (including crypto-tokens and cryptoassets). We recommend legislation to confirm the existence of this category and remove any uncertainty. On 22 February 2024 we published a short consultation on draft clauses which would implement this recommendation."

"To ensure that courts can respond sensitively to the complexity of emerging technology and apply the law to new fact patterns involving that technology, we recommend that Government create a panel of industry experts who can provide guidance on technical and legal issues relating to digital assets."

"We also make recommendations to provide market participants with legal tools that do not yet exist in England and Wales, such as new ways to take security over crypto-tokens and tokenised securities."

Law Library of Congress Comparative Report on Restrictions on Land Ownership by Foreigners

The Law Library of Congress in Washington, D.C. recently published a report on Restrictions on Land Ownership by Foreigners in Selected Jurisdictions.

The report includes individual surveys of 39 jurisdictions. The level of restrictions varies among these jurisdictions. Many countries restrict foreign ownership of land for national security or other reasons:

"(...) some have restrictions that apply to different types of land, including agricultural,  residential, and commercial land. Other types of restriction are based on the location of the land, such as near the border or military establishments. Some jurisdictions restrict  particular categories of foreigners from land ownership. Some require special permission or approval for foreigners before they can acquire land."

 According to the document, 10 of the countries surveyed do not restrict land ownership by foreigners. 

Manitoba Law Reform Commission Report on the Law of Partition and Sale

The Manitoba Law Reform Commission Report has published a report on The Law of Partition and Sale:

"Partition refers to the act of physically dividing the land between co-owners resulting in each owner owning a portion of the land outright. An order of sale requires that the co-owned land be sold and the proceeds of the sale be divided among the former co-owners (...)"

"Among other recommendations, the Commission recommends that the statute should broadly define the class of persons who may bring an application for partition or sale as joint tenants and tenants in common of an estate or interest in land but should exclude from the class certain co-owners. It is also recommended that the relevant sections of the Act be amended to expressly apply to estates and interests that are solely legal or equitable as well as to estates and interests that are both legal and equitable in nature. Additionally, the statutory law should provide clearer guidance on the information required in a notice of application for partition and sale and should be amended to reflect the societal shift resulting in a preference for orders of sale over partition. Finally, the Commission recommends that the terminology used in the Act should be modernized."

In compiling its report, the Commission examined the relevant laws of other provinces such as British Columbia, Alberta, Ontario, New Brunswick, PEI and Newfoundland.

English Law Commission Consultation Paper on Digital Assets

The Law Commission of England and Wales has released a consultation paper that looks at proposed changes relating to digital assets such as cryptocurrencies.

From the project description page:

"Digital assets are increasingly important in modern society. They are used for an expanding variety of purposes — including as valuable things in themselves, as a means of payment, or to represent or be linked to other things or rights — and in growing volumes. Electronic signatures, cryptography, smart contracts, distributed ledgers and associated technology broaden the ways in which digital assets can be created, accessed, used and transferred. Such technological development is set only to continue."

"Some digital assets (including crypto-tokens and cryptoassets) are treated as objects of property by market participants. Property and property rights are vital to modern social, economic and legal systems and should be recognised and protected as such. While the law of England and Wales is flexible enough to accommodate digital assets, our consultation paper argues that certain aspects of the law now need reform. This will ensure that digital assets benefit from consistent legal recognition and protection, in a way that acknowledges the nuanced features of those digital assets."

"Reforming the law to provide legal certainty would lay a strong foundation for the development and adoption of digital assets. It would also incentivise the use of English and Welsh law and the jurisdiction of England and Wales in transactions concerning digital assets."

Manitoba Law Reform Commission Consultation Paper on The Law of Partition and Sale

The Manitoba Law Reform Commission has issued a consultation paper on The Law of Partition and Sale:

"When co-owners of Manitoba land need or want to terminate their co-ownership, but they cannot agree on the dissolution of their co-ownership, ss. 18-26 of The Law of Property Act provide them with two potential remedies: partition, a judicial order physically dividing the co-owned property between the co-owners, and sale, a judicial order of sale of the co-owned property and division of the proceeds of sale between the co-owners (...)"

"Sections 18-26 of The Law of Property Act outline some of the key components of partition and sale proceedings; namely, the major actors and their rights under the Act, the powers of the Court in conducting partition or sale proceedings, and the duties owed by the Court to the various actors in the process. The major actors in partition and sale proceedings include individuals bringing the action for partition or sale of land, individuals who may be compelled to make partition or sale of land , and other individuals who are not necessarily parties to the action, but who have some type of interest in the land that is the subject of the action (“subject land”). In addition to delineating the rights of these individuals, ss. 18-26 of the Act set out the powers of the Court and the duties it owes to these actors in various unique circumstances (...)"

"In this Paper, the Commission contemplates whether the current version of ss. 18-26 of The Law of Property Act and the complementary QB Rules adequately address the partition and sale of land in Manitoba, or whether these sections and rules are in need of reform. Specifically, the Commission contemplates whether the Act or Rules require further specification, elaboration, modernization or simplification to better reflect the current realities of Manitoba and to better guide and support Manitobans through an inherently complicated legal process. In particular, the Commission contemplates whether the Act and Rules should be amended to more clearly address who can bring action for and who may be compelled to make partition or sale of land in Manitoba, and to touch upon additional unique circumstances in which partition or sale proceedings may be brought, such as where encumbrance holders are involved, where parties have contracted out of the right to apply for partition and sale, where dispositions are pending in parallel proceedings under other Acts, etc."

The paper examines legislation and court tules on the issue in the other provinces of Canada as well as the relevant Canadian case law.

Manitoba Law Reform Commission Final Report on What To Do About Unclaimed Accounts

The Manitoba Law Reform Commission has released its final report on Abandoned Accounts and Missing Money: Establishing a Process for Unclaimed Intangible Personal Property.

The report makes recommendations about how to handle abandoned or forgotten personal property such as credit balances, insurance policies, bonds or pension plans. This often happens when a person dies intestate:

"In Manitoba there is no obligation on the part of many property holders, such as credit unions and insurance policy holders, to report unclaimed personal property to the provincial government. Even where unclaimed personal property is remitted to holders and the government, the legislation provides no guidance for an individual to find out if they are the rightful owner and to apply to claim the money if they establish that they are the rightful owner. Other Canadian jurisdictions have enacted legislation to address unclaimed property so that money can end up in the hands of rightful owners. In light of reforms in other Canadian jurisdictions, the Commission has considered the question: Should Manitoba adopt a process for unclaimed intangible personal property? If so, what elements would the legislation need to address?"

"This project involves two distinct, yet related, issues: escheats and unclaimed property. While distinct legal concepts, in both cases the property vests in the Crown by operation of law. In Manitoba, both these situations are addressed in the same piece of legislation, The Escheats Act. The full version of this Act can be found at Appendix B."

"The Commission has learned that the process for administering escheats and unclaimed property is cumbersome for the government and impractical for individuals seeking to claim vacant or unclaimed property. Other jurisdictions, such as British Columbia, Alberta, Quebec, Ontario and New Brunswick, have introduced changes to modernize and improve legislation related to property that vests in the Crown."

The Commission is recommending that Manitoba enact legislation similar to other provinces.

Alberta Law Reform Institute Final Report on Adverse Possession

The Alberta Law Reform Institute (ALRI) recently published its final report on Adverse Possession and Lasting Improvements to Wrong Land.

Adverse possession  refers to a situation where someone who has occupied a strip of another private owner's land for at least 10 years, in the case of Alberta, can potentially claim ownership of that land. This can lead to loss of land for the registered owner. Alberta is one of the last places in Canada where adverse possession still exists.

The ALRI report recommends that the provincial government abolish the law of adverse possession.

In the case of claims of lasting improvements made to property by occupiers who mistakenly believed they rightfully owned it, the report suggests that allowing the occupier to retain the land while compensating the legal owner might be the best remedy.

The Appendix includes a "Cross-Jurisdictional Comparison of Adverse Possession in Canada".

Manitoba Law Reform Commission Consultation on Abandoned Accounts and Missing Money: Establishing a Process for Unclaimed Intangible Personal Property

The Manitoba Law Reform Commission has published a consultation report entitled Abandoned Accounts and Missing Money: Establishing a Process for Unclaimed Intangible Personal Property.

It looks at what happens to unclaimed personal property in Manitoba, such as abandoned or forgotten credit balances, insurance policies, bonds or pension plans:

"In Manitoba there is no obligation on the part of many property holders, such as credit unions and insurance policy holders, to report unclaimed personal property to the provincial government. Even where unclaimed personal property is remitted to the government the legislation provides no guidance for an individual to find out if they are the rightful owner. Other Canadian jurisdictions have enacted legislation to address unclaimed property so that money can end up in the hands of rightful owners. In light of reforms in other Canadian jurisdictions, the Commission asks the question: Should Manitoba adopt a process for unclaimed intangible personal property? If so, what elements would the legislation need to address?"

"This project involves two distinct, yet related, issues: escheats and unclaimed property. While distinct legal concepts, in both cases the property vests in the Crown by operation of law. In Manitoba, both these situations are addressed in the same piece of legislation, The Escheats Act. The Commission has learned that the process for administering escheats and unclaimed property is cumbersome for the government and impractical for individuals seeking to claim vacant or unclaimed property. Other jurisdictions, such as British Columbia, Alberta, Quebec, and Ontario, have introduced changes to modernize and improve legislation related to property that vests in the Crown."

"This Consultation Report invites readers to provide their comments on ten issues for discussion. The issues identified in this report require input from interested organizations and individuals so that the Commission can craft recommendations that will be practical and meaningful to those affected by any contemplated changes to the legislation.
Chapter 2 provides background on the legal origins of escheats and vacant property and describes the current law and procedure in Manitoba. Chapter 3 explores recent legislative reforms in other jurisdictions. Chapter 4 discusses possible areas of reform to Manitoba’s legal framework for escheats and unclaimed property, touching on important considerations should the  government wish to introduce a regime for unclaimed property."

New Zealand Law Commission Report on Dividing Property on Separation

The New Zealand Law Commission last week released its final report on the Review of the Property (Relationships) Act 1976.

The Act sets out how relationship property should be divided when a relationship ends by separation or death.

The report recommends a new Act be introduced covering relationships ending by separation because it considers the existing legislation to be out of date:

"Some significant changes to the law are required to achieve a just division of property between partners on separation. It is essential that the right pool of property is available for sharing. We have concluded it is no longer appropriate to share automatically the family home no matter how it was brought to the relationship. Only property acquired during the relationship or acquired for the couple's common use or benefit should be shared. We also think that some property held on trust has been wrongly excluded from the pool for division and that the courts should have clearer powers to address this. In response to the longstanding problem of how to share more fairly the economic advantages and disadvantages that can arise on separation, we have proposed an entitlement to share family income for a limited period after separation. We have also concluded it would be wrong to ignore the opportunity in this review to promote the best interests of children when their parents separate. Changes to the way in which relationship property disputes are resolved are important as well to address behaviour that causes delay and increases costs."

"Our recommendations constitute a package of reforms. Many of our recommendations work together. For example, refining the pool of property available for division is balanced by a more effective regime to share the economic advantages and disadvantages arising from the relationship or its end."

"Despite our recommendations for change, certain fundamental aspects of the law should remain as they are. The law should continue to value all forms of contribution to a relationship. This underpins the general approach of equal sharing, a '50/50 split', of relationship property. The law should continue to apply to relationships that are substantively the same – marriages, civil unions and de facto relationships of three years or more. "

The Law Commission did not consider relationships ending on death, and recommended that these should be dealt with separately. 

Alberta Law Reform Institute Discussion Paper on Adverse Possession

The Alberta Law Reform Institute (ALRI) has published a report for discussion on Adverse Possession and Lasting Improvements to Wrong Land.

Adverse possession allows a person who has occupied another’s land for at least 10 years to potentially claim ownership of that land. Adverse possession is commonly, but mistakenly, referred to as squatter’s rights.

"ALRI is recommending that the law of adverse possession be abolished in Alberta. This change would prevent new claims from being brought in the future, but would not affect claims that have been resolved or filed with the court before the change comes into effect."

"This change would mean that a registered owner of land could recover possession at any time and would not have to act within the 10-year limitation period that currently applies."

"If adverse possession is abolished, claims regarding lasting improvements to wrong land under section 69 of the Law of Property Act would have a more prominent role in resolving disputes concerning possession of land. To facilitate equitable resolution of disputes, ALRI recommends that an assign of the lasting improvement should not have to prove whether the person who made the improvement believed it was their land. This change would make section 69 consistent with how courts have applied it. ALRI also recommends that section 69 claims can be brought at any time."

Manitoba Law Reform Commission Report on Expropriation

The Manitoba Law Reform Commission has released its final report on the province's Expropriation Act:

"In addition to providing compensation for lands taken by an authority, The Expropriation Act also provides compensation to owners for “injurious affection”, which occurs when damages are sustained by an owner when only part of the land is taken, or even where no lands are taken but the owner nonetheless sustains damages to their land as a result of an expropriation. The Manitoba Law Reform Commission (“Commission”) has learned that provisions in The Expropriation Act that deal with injurious affection are inconsistent with other Canadian expropriation statutes and may hinder the ability of an owner to claim due compensation in certain circumstances. In the Commission’s view, the restrictive wording in the Act prevents landowners from making claims and should therefore be removed."

"In January 2018, the Commission released a Consultation Report entitled The Expropriation Act of Manitoba. The Commission received input from practitioners with expertise in the area of expropriation. Through the consultation process, several other matters relating to The Expropriation Act respecting disturbance compensation, consulting costs, and abandonment of expropriation, were brought to the Commission’s attention. These additional matters are addressed in this report. The Commission makes ten recommendations to improve The Expropriation Act. If implemented, these recommendations would provide better guidance to practitioners, landowners and the Land Value Appraisal Commission, and put the injurious affection provisions on par with other jurisdictions in Canada."

"This report is limited to reviewing the particular aspects of The Expropriation Act which have been identified by legal practitioners as problematic. It forms part of a series of reports entitled Creating Efficiencies in the Law, which seek to address discrete, straightforward issues that, in the Commission’s view, can be improved with relatively simple legislative amendments."

Alberta Law Reform Institute Report on Property Division Rules for Common-law Couples

The Alberta Law Reform Institute (ALRI) has published a report on Property Division: Common-law Couples and Adult Interdependent Partners:

"Couples should be free to make their own agreements regarding ownership and division of property. ALRI recommends that legislation should allow common law couples to make their own agreements. ALRI further recommends that agreements should be subject to specific requirements in order to be enforceable. Those requirements, which include independent legal advice, are intended to make sure that each common law partner is aware of their potential claims to property and the nature and effect of the agreement, and that each partner is entering the agreement freely and voluntarily."

"An agreement that does not satisfy these safeguards is not enforceable but may be considered by the Court in an application by one or both partners to divide property."

"If a couple does not make their own agreement or their agreement is not enforceable, ALRI recommends that there should be default rules to govern the division of property."

"Legislated default rules for property division should apply to couples who are adult interdependent partners under the Adult Interdependent Relationships Act. The criteria in the Act consider whether the couple are interdependent economically, domestically and socially. Couples also have to live together for a specified qualifying period, although they may shorten or eliminate the qualifying period by making a written agreement. Short term or casual relationships would not trigger the property division rules."

Alberta Law Reform Institute Report on Inter-provincial Recognition of Substitute Decision-Making Documents

In December 2017, the Alberta Law Reform Institute (ALRI) released a report for discussion on Inter-provincial Recognition of Substitute Decision-Making Documents.

Substitute decision-making documents (also called powers of attorney, proxies, personal directives, etc...) delegate authority to one person to act on behalf of another with respect to financial, property or legal affairs and/or personal or health care matters. But legal requirements can often differ in different jurisdictions so that documents may not be recognized outside the province in which it was made, a situation that can create problems for people who own assets in more than one jurisdiction.

In 2016, the Uniform Law Conference of Canada approved the Uniform Interjurisdictional Recognition of Substitute Decision-Making Documents Act. The Uniform Act is intended to provide harmonized rules that may be implemented across Canada.

The ALRI report reviews the Uniform Act and considers whether it is suitable for implementation in Alberta. ALRI proposes that the Uniform Act should be implemented in Alberta, with some minor adjustments.

Victoria Law Reform Commission Consultation Paper on Neighbourhood Tree Disputes

The Victoria Law Reform Commission (based in Melbourne, Australia) has published a consultation paper on Neighbourhood Tree Disputes:

"[...] neighbour proximity and trees are not always a happy meld. In an increasingly urbanised environment, people’s decisions about their land and the trees on it can have significant effects on their neighbours’ homes and lives. Neighbour tree disputes are the third largest category of dispute that comes before the Dispute Settlement Centre of Victoria."

"Many people are involved in disputes about trees each year, including disputes about encroaching roots and branches and about trees which cause damage or harm. The methods for resolving such disputes— ranging from informal negotiation to litigation—can be unclear and unnecessarily confusing. A number of Australian states have recently enacted specific legislation to provide processes for resolution, and to identify more clearly parties’ rights and responsibilities."

"The Victorian Law Reform Commission is examining the current operation of the relevant laws and processes in Victoria governing neighbourhood tree disputes. The inquiry forms part of the Commission’s community law reform program, which enables members of the community to contribute their ideas on how to improve Victorian law, and which is a valuable and important part of the Commission’s functions. In order to contain the size of the inquiry as required by the Victorian Law Reform Commission Act 2000 section 5(1)(b), the inquiry does not consider disputes about light or views, important though they are to those affected, nor does it consider disputes concerning trees situated on public land. The Commission’s priority is upon effective and efficient resolution of disputes between neighbours about trees on neighbouring private land that cause interference, damage or harm."

"The Commission has undertaken this inquiry following suggestions from community members, a number of which were based on their own experience of trying to resolve a neighbourhood tree dispute."

Alberta Law Reform Institute Paper on Property Division for Common-law Couples

The Alberta Law Reform Institute (ALRI) published a discussion paper in September 2017 on Property Division: Common Law Couples and Adult Interdependent Partners.

The ALRI is now seeking feedback on its preliminary recommendations, before it makes final recommendations to the government of Alberta:

"In recent decades, the number of common-law relationships has been growing faster than the number of marriages. In Alberta, however, there are no legislated rules for property division upon the breakdown of a common-law relationship. The Matrimonial Property Act applies only to married spouses. Property division for common-law partners is based on legal ownership and the law of unjust enrichment, which is judge-made law. When common-law partners separate, there are no presumptions or formulas about how they should divide property. If they cannot agree, they face litigation which can be time-consuming, expensive, and risky."

Closer Look at the British Columbia Law Institute Report on Complex Stratas

The British Columbia Law Institute (BCLI) released a Report on Complex Stratas in June 2017.

In British Columbia, a strata corporation is a legal entity with all of the powers of a natural person who has full capacity. This means that it can sue or be sued, enter into contracts and hire employees. There are residential strata corporations, commercial strata corporations.snd other categories.

"This report is the second published in BCLI’s Strata Property Law Project—Phase Two. BCLI’s work on strata-property law reaches back to phase one of this project, which concluded in 2012 with recommendations to examine the following seven areas: (1) fundamental changes to a strata; (2) complex stratas; (3) selected governance issues; (4) common property; (5) selected land-title issues; (6) selected insurance issues; (7) leasehold stratas."

"Complex stratas is not a term found in the Strata Property Act. It’s an expression used to describe trends in the real-estate sector. Strata-property legislation was developed in the 1960s as a means to promote high-density residential housing. But the legislation has never restricted strata properties to just this form. Architecturally varied and mixed-use stratas began to spring up in the 1970s. At that time, the legislation gained three tools to manage the legal issues that arose in the wake of increasingly complex stratas: sections, types, and phases. This report marks the first comprehensive review of these three tools in a generation."

"The report contains 68 recommendations for reform. The recommendations propose clarifying the procedures for creating and cancelling sections, spelling out section powers and duties, strengthening section governance, budgets, and finances, clarifying the procedures for creating and cancelling types and fine-tuning the operation of types, enhancing the oversight of the phasing process."

In a series of posts, the BCLI blog has been "taking a closer look at three key recommendations in the report":

• “Should the Strata Property Act continue to require a strata corporation to hold an annual general meeting after the deposit of each phase in a phased strata plan other than the first phase?”
• “Should strata corporations be allowed to allocate expenses paid for out of the contingency reserve fund to types?” 
• “Should sections be retained or repealed?”

Law Reform Commission of Saskatchewan Final Reports on Intestate Succession Act and Homesteads Act

The Law Reform Commission of Saskatchewan recently published two (2) final reports.

They are:

• The Final Report on Reform of The Intestate Succession Act, 1996 : "The Intestate Succession Act, 1996 determines how an estate is divided when there is not a valid will, or if there is a portion of an estate remaining after a will has been completely applied. The Commission has undertaken a comprehensive review of The Intestate Succession Act, 1996. This Final Report makes several recommendations for reform based on current estate planning practices that will ensure Saskatchewan’s intestate estate distribution system remains relatively simple, certain, and efficient."
• The Final Report on The Homesteads Act, 1989: "The Homesteads Act, 1989 protects spouses who do not own their homes against the sale, mortgaging or other disposition of the homestead by requiring the non-owning spouse to sign a consent and be examined separately from the owning spouse before such action can be taken. This Final Report considers two distinct issues: (1) whether an attorney acting under a power of attorney should be able to consent to a disposition of the homestead, and (2) whether a homestead should include mines and minerals. This Final Report recommends allowing an attorney to consent to a disposition of the homestead in place of a non-owning spouse, subject to the condition that where the attorney is the spouse of the non-owning spouse, the attorney only be able to consent to a disposition of the homestead where the non-owning spouse lacks capacity. This Final Report also recommends that The Homesteads Act, 1989 be amended to specifically exclude mines and minerals from the definition of the homestead."

Alberta Law Reform Institute Report Recommends Abolition of Perpetuities Law

The Alberta Law Reform Institute has published a report that recommends the abolition of perpetuities law in Alberta :

"The Alberta Law Reform Institute (ALRI) recommends the abolition of perpetuities law in Alberta. Abolition has already occurred in Manitoba, Saskatchewan and Nova Scotia. Canada-wide abolition has been recommended by the Uniform Law Conference of Canada."

"The common law rule against perpetuities (RAP) originated in England in the 17th century as a way to prevent landowners from using future or contingent interests to tie up property for generations. RAP creates a perpetuity period for such interests based on the length of a life or lives in being in existence at the creation of the interest, plus 21 years. At common law, a contingent interest is void if there is any uncertainty at the outset whether it will vest within the perpetuity period. Over the centuries the courts expanded the common law RAP to apply to virtually all future or contingent interests in property, regardless of whether the interest is real, personal, legal or equitable."

"In 1972, Alberta enacted the Perpetuities Act (the Alberta Act) to reform the worst complexities and excesses of the common law RAP, based on recommendations from ALRI (...)"

"With court variation statutes governing trusts and non-trust interests available to address perpetuities issues, ALRI believes it is time to abolish the common law RAP and repeal the Alberta Act which reforms it. Other Canadian provinces have abolished perpetuities law without any apparent major problems resulting from that decision. ALRI’s consultation feedback, coming largely from the legal profession, judiciary and trusts and estates professionals, indicates majority support for abolition. While these results are not scientific, they do at least anecdotally suggest that many professionals working in the area are now comfortable with the idea of doing away with specialized perpetuities law."

The report discusses the situation in Alberta as well as the practices adopted in Manitoba, Nova Scotia, England and New Zealand.

Alberta Law Reform Institute Report on New Trustee Act

 The Alberta Law Reform Institute recently released its final report on A New Trustee Act for Alberta:

"In 2007, the Uniform Law Conference of Canada (ULCC) undertook a project on trustee legislation reform. The goal of the project was to develop a modern trust statute that would be suitable for enactment across Canada."

"This Report recommends that the Uniform Trustee Act, 2012 [Uniform Act] be adopted in in Alberta. However, certain aspects must be enhanced, tailored and clarified to reflect Alberta’s particular needs (...)"

Alberta Law Reform Institute Report for Discussion Perpetuities Law: Abolish or Reform?

The Alberta Law Reform Institute has published a report for discussion entitled Perpetuities Law: Abolish or Reform?

"The rule against perpetuities (RAP) was developed by English courts in the 17th century as a way to prevent landowners from using future and contingent interests to tie up property for generation after generation. RAP seeks to control the creation of future, contingent interests in property which may vest outside of the specified perpetuity period. The perpetuity period is measured with reference to any life or lives in being that are in existence at the creation of the interest, plus 21 years. If, at the date that the disposition takes effect, it is not certain that the contingent interest will vest within the perpetuity period, then the interest will be considered void at the outset. RAP was received law from England and became part of the law of Alberta."

"Over the centuries the courts expanded RAP with the result that it now applies to virtually all future or contingent interests in property, regardless of whether the interest is real, personal, legal or equitable. RAP and its expansion have resulted in a complex and virtually incomprehensible body of law that is often misapplied and misunderstood (...)"

"Does perpetuities law serve any valid legal or social purpose in today’s society? It seems to be well accepted that the historical purpose of preventing wealthy landowners from creating successive family estates is not relevant in Canada. However, many view the modern purpose of perpetuities law as creating a balance between past and present, so that a settlor or testator may dictate the disposition of his or her property, but may not control it so far into the future that the beneficiaries cannot appropriately respond to changed times and circumstances. Similarly, restricting how far into the future a settlor or testator can control his or her property may benefit society by ensuring that property is used to meet contemporary needs, rather than outdated ones (...)"

"Choosing to retain perpetuities law does not necessarily mean that the Perpetuities Act should continue to govern in its current form. Three potential reform models are presented and discussed:

• Perpetuities law should allow a choice between RAP’s perpetuity period calculated by reference to lives in being and a fixed perpetuity period for vesting, but should retain the wait and see principle.
• RAP should be codified, the concept of lives in being should be eliminated, a fixed perpetuity period for vesting should be implemented, and the wait and see principle should be retained.
• RAP, lives in being, vesting and the wait and see principle should be completely replaced with a legislated, fixed duration period for trusts."

The report discusses the situation in Alberta as well as the practices adopted in Manitoba, Nova Scotia, Saskatchewan, England and New Zealand.

This is a discussion paper. The deadline for submitting comments is June 30, 2016.