Ronan v. Derheim, (1977) 4 A.R. 192 (CA)

• Judge: Clement, Lieberman and Prowse, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: June 07, 1977
• Citations: (1977), 4 A.R. 192 (CA)

Ronan v. Derheim (1977), 4 A.R. 192 (CA)

MLB headnote and full text

Ronan v. Derheim

Indexed As: Ronan v. Derheim

Alberta Supreme Court

Appellate Division

Clement, Lieberman and Prowse, JJ.A.

June 7, 1977.

Summary:

This case arose out of the plaintiff's application for an order for possession of leased premises. The tenant had an unregistered written lease for a term of five years. With less than three years remaining of the term the landlord sold the leased premises to the plaintiff, who had no notice of the written lease. The tenant continued to pay rent monthly to the plaintiff, who thought that the tenant was one of several tenants under monthly tenancies. Several months later the plaintiff gave the tenant notice to quit. The tenant objected that he had a written lease. Thereafter the tenant continued to pay and the landlord continued to accept monthly rent. Rent was paid and accepted even to the date of trial of the landlord's application for possession. The Alberta Supreme Court, Trial Division, allowed the plaintiff's application for possession. The tenant appealed.

The Alberta Court of Appeal allowed the appeal and held that the plaintiff was not entitled to possession. The Court of Appeal held that, although the plaintiff took the property free and clear of the tenant's lease (see paragraphs 1 to 22), the landlord's acceptance of rent after the notice to quit created a new monthly tenancy - see paragraphs 37 to 45.

Landlord and Tenant - Topic 55

Creation of the relationship - Relation implied from prior landlord's agreement to assign lease - A tenant had an unregistered written lease for a term of five years - During the term the landlord sold the leased premises and in the agreement for sale the landlord agreed with the purchaser to "assign all leases of the premises to the purchaser" - The tenant's lease was never assigned - The Alberta Court of Appeal held that the agreement for sale did not create privity of estate between the tenant and the purchaser and that the purchaser was not bound by the lease - See paragraph 20.

Landlord and Tenant - Topic 125

Creation of the relationship - Between tenant and successor landlord - Where tenant's existing lease invalid - A tenant had an unregistered written lease for a term of five years with rent payable monthly - During the term the landlord sold the leased premises to another, who had no notice of the tenant's lease - The tenant continued to pay rent monthly to the new landlord, who thought that the tenant was one of several tenants under monthly tenancies - The Alberta Court of Appeal held that the new landlord was not bound by the lease and that a monthly tenancy was created by the continuing payment and acceptance of monthly rent - See paragraphs 23 to 36.

Landlord and Tenant - Topic 7626

Overholding tenants - Tenancy created - Monthly - A landlord gave a tenant under a monthly tenancy a notice to quit - The tenant objected that he had a written lease, of which the landlord was unaware - Thereafter the tenant continued to pay and the landlord continued to accept monthly rent - Rent was paid and accepted even to the date of trial of the landlord's action for possession - The Alberta Court of Appeal held that the landlord's acceptance of rent after the notice to quit created a new monthly tenancy - See paragraphs 37 to 45.

Real Property - Topic 7823

Title - Registration of instruments - Requirement of registration - Effect of failure to register - Land Titles Act, R.S.A. 1970, c. 198 - A tenant had an unregistered written lease for a term of five years - During the term the landlord sold the leased premises to another, who had no notice of the written lease - The Alberta Court of Appeal held that the new landlord took the property free and clear of the tenant's lease and could have evicted the tenant on purchase without notice to quit - See paragraphs 1 to 22.

Real Property - Topic 7828

Title - Registration of instruments - Requirement of registration - Registration of a lease - Land Title Act, R.S.A. 1970, c. 198, s. 64(1)(d) - A tenant had an unregistered written lease for a term of five years - With less than three years remaining of the term the landlord sold the leased premises to another - The Alberta Court of Appeal held that the new landlord took the property free and clear of the tenant's lease - The Court of Appeal held that the lease did not fall within the exemption from registration of s. 64(1)(d) of the Land Titles Act as "a subsisting lease for a period not exceeding three years" - The Court of Appeal held that the words "a period not exceeding three years" in s. 64(1)(d) referred to the term of the lease and not the balance of the unexpired term - See paragraph 19.

Cases Noticed:

Maurice Demers Transport Ltd. and Demers v. Fountain Fire Distributors (Edmonton) Ltd., [1974] 1 W.W.R. 348, appld. [para. 16].

First National Investment Company v. Thoroddur Oddson, [1919] 3 W.W.R. 591, folld. [para. 19].

Munro v. Stuart, 41 S.R. (N.S.W.) 203, folld. [para. 20].

Keech v. Hall, 1 Dougl. 21; 99 E.R. 17, appld. [para. 22].

Cole v. Kelly, [1920] 2 K.B. 106, appld. [para. 25].

Adler v. Blackman, [1953] 1 Q.B. 146, consd. [para. 26].

Young v. Bank of Nova Scotia (1915), 23 D.L.R. 854, consd. [para. 27].

Knight v. Bennett (1826), 3 Bing. 361; 130 E.R. 552, consd. [para. 28].

Martin v. Smith (1874), 9 Ex. 50, consd. [para. 29].

Mann v. Lovejoy (1826), Ry. & M. 355, refd to. [para. 30].

Arden v. Sullivan (1850), 14 Q.B.D. 832; 117 E.R. 320, refd to. [para. 30].

Trerise v. Evanock, [1944] 3 W.W.R. 319, refd to. [para. 30].

Corbett v. Plowden (1884), 25 Ch. D. 678, consd. [para. 31].

Oakley v. Monck (1866), L.R. 1 Ex. 159, appld. [para. 34].

Clark v. Grant & Another, [1950] 1 K.B. 104, appld. [para. 40].

Balemba and Balemba v. Louis, [1945] 2 W.W.R. 605, appld. [para. 41].

Statutes Noticed:

Land Titles Act, R.S.A. 1970, c. 198, sect. 56, sect. 63(1) [para. 17]; sect. 64(1)(d), sect. 97(1), sect. 203 [para. 18].

Counsel:

R.J. Wiedemann, for the tenant;

R.D. Bolton, for the landlord.

This case was heard before CLEMENT, LIEBERMAN and PROWSE, JJ.A., of the Alberta Supreme Court, Appellate Division.

On June 7, 1977, PROWSE, J.A., delivered the following judgment of the Appellate Division: