Administrative Approvals : Transfers - Part 5 of the Public Lands Act and Part 4 of PLAR

Transcription

1 Title: Administrative Approvals : Transfers - Part 5 of the Public Lands Act and Part 4 of PLAR Number: AEP, Land Policy, 2016, No. 4 Program Name: Public Land Management Effective Date: February 2, 2016 This document was updated on: ISBN No. Disclaimer: 1.0 Purpose This guide provides overall policy direction for transfers of dispositions following the death of the disposition holder. It establishes regulatory alignment under the provisions of the Public Lands Act and Public Lands Administration Regulation (PLAR). It also provides the policy context and process to Alberta Environment and Parks (AEP) staff regarding transfers upon death and it incorporates existing best practices. AEP is responsible for managing Alberta s public lands, except with respect to energy resource activities, as defined in the Responsible Energy Development Act, which are the responsibility of the Alberta Energy Regulator. In delivering this mandate, AEP may approve transfer applications pursuant to a formal disposition. The Public Lands Act amendments that came into force on April 1, 2010 and PLAR that came into force on September 12, 2011 provide the regulatory framework for transfers (PLAR Part 4). 1.1 Background The Public Lands Act provides for transfers through the written consent of the director (Public Lands Act s.43). A transfer is an instrument that is registered against the disposition showing that the ownership of the disposition has been conferred from one holder, in this case the deceased, to another person. A transfer may also provide authority to the personal representative of a deceased holder to further transfer ownership of the disposition formerly held by the deceased to one or more beneficiaries. A transfer of a disposition following the death of the holder is an approval under section 13 of PLAR. Approvals relate to a formal disposition or an authorization and are never a stand-alone disposition. Approvals are the instruments that grant the permission or consent of the director to the transfer. Provisions of the Public Lands Act that relate to a transfer of a disposition upon death of a holder include: section 15.1 (refusal for non-compliance), section 43 (consent to assignment, etc.), section 113 (definitions), section 114 (registration of assignment), section (assignment charges), section 115 (effect of registration of assignment), section 116 (assignment where holder assignor and assignee), and section 117 (registration deemed to confer consent). The provisions in PLAR that relate to transfers upon death include: section 13 (application for approval), section 14 (issuance of approval), section 15 (deemed rejection), section 146 (application for approval), section 147 (transfer on death), section 149 (limitations of administrative approvals), section Page 1 of 10

2 150 (conditional approval), section 151 (effect of rejection, refusal, or breach), section 153 (rejection of application) and section 154 (questioning assignee). 1.2 Scope This document will be used by all persons who manage procedures related to transfers of formal dispositions. Not all dispositions may be transferred (see section 149 of PLAR). The policy and procedures for transfers apply to the following disposition types: Commercial Trail Riding Permit (CTR) Easement (EZE and REA) Farm Development Lease (FDL) Grazing Licence (FGL) Grazing Lease (GRL) Licence of Occupation (DLO) Miscellaneous Leases (DML) Surface Materials Lease (SML) 1.3 Precaution and Responsibility This guide is intended to assist with consistency of directors decision-making where appropriate. It is not intended to fetter directors discretion, and it is very important that directors exercise care to ensure this policy is not used as a substitute for their individual judgement as a decision maker. The Operations Division as the main user of this guide is responsible for ensuring that directors follow the policy direction and processes on an ongoing basis. The Public Lands Policy Section, as the Guide Owner, is responsible for ongoing maintenance and updates to the policy and processes described in this guide. More specifically, the following roles are responsible for maintaining, approving and using this procedure: Guide Owner: AEP Policy & Planning Division, Land Policy Branch, Public Lands Policy Section Guide Approver: AEP Policy & Planning Division, Executive Director Land Policy Branch Guide Users: AEP Operations and the Policy & Planning Divisions The AER has jurisdictional authority to consider and approve applications for the transfer of a disposition following the death of the holder of a disposition in respect of an energy resource activity, as defined in the Responsible Energy Development Act. AEP does not have the jurisdictional authority to consider and issue approvals for applications for the transfer of dispositions in respect of energy resource activities. Transfer applications approved by the AER are not appealable to the Public Lands Appeal Board (PLAB) Decision Makers The Minister of AEP is authorized to designate persons as directors for the purposes of implementing the Public Lands Act and PLAR. Designation under the Public Lands Act and PLAR are made to persons holding certain classifications. A detailed list of these classifications is found in of the designation orders. Ministerial Order 04/2014 sets out the designations of directors for the purposes of sections 15.1, 43, 114, and of the Public Lands Act and sections 13, 14, 15, 146, 147, 149, 150, 151, 153, and 154 of PLAR Designation of Authorities Section 113 of the Public Lands Act addresses the keeping of books for the registration of transfers. The delegated authority of powers, duties and functions of the Minister is outlined in section 113 of the Public Lands Act provided in Ministerial Order 03/2014. Page 2 of 10

3 2.0 Policy Transfers The policy ensures that the current process aligns with the regulatory and accountability requirements outlined in PLAR and the Wills and Succession Act (WSA) and other legal principals with regards to the transfer of dispositions. Depending on the manner in which the disposition is held, a deceased s interest in a disposition may be transferred by right of survivorship to surviving joint tenants, or to beneficiaries of the deceased s estate, either through a will or under an intestacy. 2.1 Application Requirements for Transfer on Death The requirements for an application for a transfer of a disposition following the death of the holder are outlined in sections 146(3), for transfers by right of survivorship, and 147 of PLAR, for transfer passing though the deceased s estate. The general requirements for a transfer of a disposition are the same for other transfers, and include that an application must be (1) in a form and manner acceptable to the Minister or the director, (2) accompanied with a copy of any provisions of the Public Lands Act or PLAR requiring the applicant to obtain the approval, (3) accompanied with a copy of any provisions applicable to Alberta Land Stewardship Act (ALSA) regional plan requiring the applicant to obtain the approval; and (4) accompanied with a copy of any formal disposition or authorization requiring the applicant to obtain approval (see PLAR 2011, s. 13(1)(a) and s. 13(1)(f)). Further, if the applicant is indebted to the Crown or is in non-compliance with the Act or the regulations, the director may refuse the transfer (see Public Lands Act 2010, s.15.1). The difference for an application under Section 147 of PLAR is discussed in below. Upon the initiation of a transfer of a disposition, the Provincial Approvals Branch should be contacted. Once the transfer of a disposition is active, the newly assigned disposition holder will be added onto the disposition Transfers by Right of Survivorship If the disposition is held in joint tenancy, upon the death of one of the joint tenants, the remaining registered joint tenants have a right to the deceased s interest in the disposition by right of survivorship. The surviving joint tenants, as the proposed transferees, would make an application to the director for the change in the registration of the disposition. Although not specifically set out in PLAR, an application for a transfer by the surviving joint tenants is to be accompanied with proof of death, which should be the death certificate. There is no need for the applicant to submit a copy of the will, grant of probate or letters of administration Transfers by Will or Succession If the disposition is held by one individual, or if more than one holder holds the disposition as tenants in common, then upon death of a holder, the deceased s interest passes on to the deceased s estate. This is by will, if the deceased holder has a valid will, or if there is no will, by application of the rules applicable to intestacy set out in the WSA. In either situation, an application is to be made for approval to the Minister or the director to permit the transfer of the disposition to the ultimate beneficiary. The main difference for an application under section 147 of PLAR, where the transfer passes through the deceased s estate, is that the personal representative of the deceased is the person who makes the application for the transfer, rather than the transferee (although it may be the same person in some instances). Section 147 of PLAR also states that the personal representative is to submit a copy of the grant of probate or letters of administration, as applicable, with the application. If the deceased holder has a valid will, then the application requirement for a transfer should be accompanied with a copy of the grant of probate appointing the personal representative and authorising the person to deal with the deceased holder s assets. However, not all wills require Page 3 of 10

4 a grant of probate being issued. If a will is not probated, then the personal representative should submit a copy of the will instead of the grant of probate with the application for a transfer. If a holder dies without a valid will, then the transfer of the deceased s assets, including the deceased s interest in the disposition, occurs under an intestacy pursuant to the rules set out in the WSA. The personal representative is to submit a copy of the letters of administration with the application for the transfer. If an application is made for a transfer following the death of a holder without including either the a copy of the grant of probate (or the copy of the will, if applicable) or a copy of the letters of administration, the director may refuse to issue the approval or request the personal administrator to provide such materials within a specified time (see PLAR s 147(3) and (4)). 2.2 Transfer upon Death with Multiple Beneficiaries Grazing Dispositions Partial Transfer The process for a partial transfer occurs when, following the death of a holder, there is more than one beneficiary entitled to an interest in the disposition and they do not want to hold the disposition jointly. Partial Transfers are only applicable to agricultural dispositions. If multiple beneficiaries to an interest in a disposition do not want to hold their interest jointly, there are a number of additional considerations as compared to transferring the disposition to multiple beneficiaries jointly. These include further involvement of an agrologist with fee calculation because of Animal Unit Months (AUM) division, having the original disposition boundaries amended and a new disposition created, additional mapping fees, including an amended mapping fee for the original disposition, and a digital mapping fee for the new disposition. There are some restrictions on partial transfers for larger leases (land exceeding an area required to graze 600 head of cattle (Public Lands Act 2010 s.102(3)) Commercial and Industrial Dispositions If following the death of a holder of a commercial or industrial disposition, there are multiple beneficiaries entitled to an interest in that disposition, and some of the beneficiaries want to receive separate dispositions created from the original disposition, additional steps are needed. First, an administrative amendment to the original disposition needs to occur to remove those beneficiaries wanting the new dispositions. Second, one or more new dispositions (as may be needed) must be created for those beneficiaries. Third, applicable requirements for the amendments or new dispositions will need to be made. Finally, new survey plans re required by all parties illustrating the new changes in the disposition boundaries Surrender of Interest In any situation where, following the death of a holder, there is a transfer to multiple beneficiaries, and some of the beneficiaries entitled to an interest in the disposition want to be removed from the original disposition, then two steps are required. Firstly, a transfer must be done in accordance with the terms of grant of probate (or, if a grant of probate was not required, in accordance with the terms of the will) or the letters of administration, as discussed above. Secondly, there must be a transfer from all of the beneficiaries to the beneficiaries wishing to remain on the original disposition, which must be signed by all parties. For a DML disposition of a residential structure, the Programs Approvals Branch cannot divide the disposition; however, an assignment to remove beneficiaries who do not wish to retain their interest in the disposition is applicable. 2.3 Transfer Fees The specified fees for a transfer of a disposition following the death of the holder are the same as for Page 4 of 10

5 other transfers. The specified fee, except for grazing dispositions, can be found under assignment fees outlined in the Public Lands Rents and Other Amounts Payable Order Ministerial Order 28/2015. The specified fees associated with transfers for grazing dispositions can be found in s of PLA. Ministerial Order 28/2015 In a situation where there is a transfer upon death with more than one beneficiary and the disposition is to be divided and there are additional fees associated with an application to amend, new application, assignment, survey plans, and mapping fees. 2.4 New Conditions Pursuant to section 150 of PLAR, a transfer of a disposition following the death of a holder may be issued on any terms and conditions the direction considers appropriate including: Terms and conditions varying any term or conditions of the disposition; Terms and conditions requiring the holder of the disposition to provide security in a form and amount satisfactory to the director for the performance of the obligations under the disposition; Terms and conditions requiring the holder of the disposition to provide security in a form and amount satisfactory to the director for the reclamation of lands under the disposition; Terms and conditions requiring the transferee to provide security in a form and amount satisfactory to the director, in addition to any security the transferee is required to pay under section 150(b) and(c); and Terms and conditions providing that non-compliance with one or more specified terms or conditions voids the approval (PLAR s.150). While changes to conditions may be appropriate, care should be taken to not make wholesale changes to the disposition or to undermine the management intent and purpose of the disposition. It will be at the discretion of the director to determine if the applications of new conditions are in alignment with existing policy and intent. 2.5 Cancellation at Time of Transfer If an application for a transfer is received following the death of a holder, the personal representative of a deceased disposition holder provides the director written consent to transfer the disposition but a letter of probate or letter of administration was not accompanied with the application, the director can request a letter of probate or letter of administration within a specified time (PLAR, s. 3(b)). Not all wills require a grant of probate. If a will is not probated, then the personal representative should submit a copy of the will instead of the grant of probate with the application for a transfer. The director can cancel a transfer if the personal representative does not provide the requested information within a time specified by the director (PLAR, s. 147(4)). 2.6 Regulatory Timelines Application requirements and timelines are provided in PLAR. Once an application for a transfer is received a completeness decision must be made within 30 days (PLAR s.13 (5)). However, the department may extend the completeness decision up to 90 days (PLAR s.15 (2)), or indefinitely in certain circumstances (PLAR s. 15(3)). If a decision has not been made on the completeness and the applicant has not been provided written notice of an extension under sections 15(2) or (3) of PLAR within the 30 day period provided by section 13(5), the application will be deemed to be rejected (PLAR s. 15(1)). The director must register a notice of the issuance or refusal of the application for any transfer within 90 days after the director registers a notice under section 13(5) of PLAR regarding the completeness of the application (see PLAR s.14(4)). The merit decision must be made within 90 days of the completeness decision. Page 5 of 10

6 2.7 Evaluation and Merit Criteria After AEP has determined that an application for a transfer of a disposition following the death of the holder is complete, AEP will undertake an evaluation of the transfer application to determine if the transfer is to be issued. The director will use their discretion when evaluating and making a decision about the proposed transfer Referrals Referrals enable AEP to ensure final land use decisions are integrated and reflect different resource functions in the department. The information received during the referral process supports a final recommendation. Referrals are required as part of the approval process for transfers and can only be done by a Land Use officer. Referrals may be triggered by consultative notations, protective notations, and Fish and Wildlife Referral Lands which appear on a land standing. These notations indicate that there is a management intention on the landscape and that proposed activities should be referred to the owner or holder of the notation. More information on notations can be obtained from the Public Lands Reservation Information Guide on the department s website. Public Lands Reservation Information Guide A referral to regional AEP staff may be triggered when an application for a transfer is received. The regional staff may review: the proposed purpose of land use by the transferee; the existing terms and conditions; outstanding compliance issues (i.e. utilization level, fencing, debris, weeds, etc.); and confirm that development has occurred on the disposition. Regional staff may recommend: varied terms and conditions and; that additional security be requested for the performance of the obligations and reclamation under the disposition (PLAR, s. 150). There may be circumstances where regional staff refers to other internal agencies if there is a known concern which may be managed at time of the transfer through the addition of a new condition Appeals PLAR provides an appeal mechanism for specific decisions made by a regulatory body (PLAR s.21). Appealable decisions related to subleasing are as follows: a refusal to issue a disposition or to renew or amend a disposition applied for under the Act (PLAR, s. 211(c)); the imposition or variation under the Act of a term or condition of a disposition (PLAR s.211 (d)); and a deemed rejection under section 15(1) (PLAR, s.211 (c)). Certain people have standing to appeal the above decisions. A person to whom the decision was given has standing, and a person, including a commercial user referred to in section 98 of PLAR, that is directly and adversely affected by the decision has standing (PLAR, s.212 (1)). A decision is only on the grounds set out in section 213 of PLAR. Decisions regarding transfers of dispositions following the death of the holder are appealable through the Public Lands Appeal Board (PLAB). 1 This guide is not intended to fetter with the Director s discretion but assist with consistency of decision making where appropriate. 2 While changes to conditions may be appropriate, care should be taken to not make wholesale changes to the disposition or to undermine the management intent and purpose of the disposition. It will be at the discretion of the director to determine if the application of new conditions are in alignment with existing policy and intent. Page 6 of 10

7 Step 3.0 Procedures 3.1 Creating a Transfer 3 Procedure 1.0 Transfer Application Received 2.0 Application Reviewed for Completeness AEP reviews the application for completeness including: Written verification from the taxing authority that all taxes with respect to the land have been paid and indication if transferor/transferee is indebted to the crown or municipality Confirmation that the disposition is not expired All fields of the application are complete Proposed land use and purpose cannot change when application for approval for the transfer is received Tenancy must be indicated on transfer application (Joint Tenants or Tenants in Common), where applicable Applicable transfer fees Approved operating plan or conservation and reclamation plan (where applicable) is provided If the applicant is a company the shareholder statement and certificate of incorporation is required If the transferor/transferee is a Government of Alberta employee, government employee requirement are required including Deputy Head or designate approval. Additional information can be found in the Code of Conduct and Ethics for the Public Service of Alberta, o Code of Conduct and Ethics for the Public Service of Alberta, If the assignee intends to graze bison, a bison application is required o Bison Application If the land is tax recovery land (AEP must agree and a statutory declaration is required) If application is incomplete proceed to step 2.1 If application is complete proceed to step 3.0 For a transfer by right of survivorship, a death certificate or other satisfactory proof of death For a transfer pursuant to a will, a copy of the grant of probate or a copy of the will if probate was not required For a transfer under an intestacy, a copy of the letters of administration. 2.1 Application Rejected If the application package is incomplete the application may be rejected. If the application is missing a copy of a death certificate, grant of letters probate, will or letters of administration (as applicable), the director should request that missing materials be submitted within a specific time. 3.0 Transfer Fee Calculated 4.0 Transfer Application Referred to Regional Staff Land Administrators may refer the transfer to regional staff (officer/agrologist) for review and recommendation where warranted and required for input. 5.0 Review Transfer Application and Provide Recommendation Regional staff may review: the proposed purpose of land use by the assignee to make sure that the land use does not change during the transfer upon death process; the existing terms and conditions; outstanding compliance issues (i.e. utilization level, fencing, debris, weeds, etc.); and confirm that development has occurred on the disposition. 3 It is contemplated that the AER will develop similar procedures that are within its organizational structure to achieve the policy direction set out in this document. Page 7 of 10

8 Regional staff may recommend: varied terms and conditions; additional security be requested for the performance of the obligations and reclamation under the disposition (where applicable); and additional terms and conditions provided that non-compliance with one or more specified terms or conditions voids the approval (where applicable). There may be circumstances where the regional staff refer to other internal agencies if there is a known concern which may be managed at time of transfer through the addition of a new condition (for example: a change of on and off dates to support bird nesting, etc.). 6.0 Merit Decision AEP will make a merit decision based on: Ensuring the proposed land use does not change Terms and conditions Type of tenancy Indebtedness to the Crown or arrears of taxes to a municipality with respect to public land 7.0 Revised Terms and Conditions of Disposition If there is a recommendation to revise the terms and conditions of the disposition proceed to step 8.0 If there is a recommendation to not revise the terms and conditions of the disposition proceed to step Memorandum of Agreement (MOA)/ New Disposition Document (Partial Transfer only) Create Memorandum of Agreement (MOA)/ New disposition document to reflect changes in conditions and provide to new proposed disposition holder for signature. 9.0 Transferee signs MOA If transferee signs MOA/ new disposition document proceed to step 10.0 If assignor does not sign MOA proceed to step Transfer Application Refused The transfer is refused if the MOA/disposition document is not signed because the terms and conditions were not accepted Transfer Issued and Registered 4.0 Glossary Administrative Approval: Administrative Approval as being a class of approvals under Part 4 of PLAR consisting of mortgages, assignments, transfers, and sub-leasing. AER: Alberta Energy Regulator AEP: Alberta Environment and Parks Applicant: A person applying whose interest has been registered by way of an application to a regulatory body according to the records of the issuing regulatory body. Beneficiary: is a person designated or appointed as one to who or for whose benefit insurance money is to be payable, a person entitles to benefit from a trust or will or a person entitled to receive benefits under a statutory scheme. Delegated Authority: Any person, agency or board that has been delegated power, duty or function by the minister under any Act or regulation. Guide Approver: Person responsible for approving a guide. Guide Owner: Position/Section/Branch responsible for updates to a guide. Guide Users: Those individuals or organizations responsible for taking actions within the guide. Joint Tenancy: A form of ownership when two or more persons jointly own property whereby on the death of one of the owners, the remaining owners, by right of survivorship, are transferred the deceased s interest in the property. Page 8 of 10

9 Director: A person designated as a director under Section 5 of the Public Lands Act Disposition: The authority granted by a regulatory body pursuant to the Public Lands Act to use public land for specific purposes and activities. Formal Disposition: A disposition issued under the Public Lands Act granting varying rights and responsibilities to use public land for certain purposes and activities. See PLAR 1(1)(o) for further information. Minister: The Minister determined under Section 16 of the Government Organization Act as the Minister responsible for this Act (Minister of AEP). Personal Representative: means an executor under a will or an administrator appointed in an intestacy. PLAR: Public Lands Administration Regulation. Public Land: Land of the Crown in right of Alberta. Tenants in Common: A form of ownership where two or more people jointly own property in common with the other, but for which there is no right of survivorship. On the death of an owner, the interest of the deceased owner may be transferred to beneficiaries either under a will or on an intestacy. Transfer: An instrument that is registered against the disposition showing that the ownership of the disposition has been conferred from the original deceased disposition holder to another person. A transfer also provides the ability of a personal representative of a deceased disposition holder to arrange to change ownership of a disposition formerly held by the deceased disposition holder. 5.0 References To learn more about the legislation that applies to this procedure, visit the Government of Alberta Queen s Printer website at: qp.alberta.ca Search for the following: Public Lands Act o Public Lands Administration Regulation Responsible Energy Development Act o Specified Enactments (Jurisdiction) Regulation o General Amendment Regulation You may also be interested in reading supporting documents: Public Lands Administration Information Series (Part 1): Handbook of Instruments Pursuant to Public Lands Act & Public Lands Administration Regulation (PLAR) Applying PLAR to Aboriginal Issues Standard Operating Procedures First Nations Consultation Policy on Land Management and Resource Development and associated Guidelines Integrated Standards and Guidelines Enhanced Approval Process (EAP) December 1, About Public Lands Estate Planning and Public Land Dispositions - July Approval Original signed by: Date: February 10, 2016 Kem Singh, Executive Director Land and Forestry Policy Branch Alberta Environment and Parks Page 9 of 10

10 7.0 Appendix 7.1 Process Flow Transfer Process Administrative Approval Transfer Application Received 1.0 Application Reviewed for Completeness 2.0 Complete Transfer Fee Calculated 3.0 Merit Decision 6.0 Are there revised Terms and Conditions of the disposition? 7.0 Yes Create MOA/new disposition document to reflect the changes in conditions and provide for review 8.0 Incomplete Land Administrator Application Rejected 2.1 Transfer application referred to regional staff 4.0 No Signs disposition document 9.0 Yes No Transfer application refused 9.1 Transfer Issued and Registered 10.0 Regional Staff Review transfer application and provide recommendation(in cluding varied terms and conditions) 5.0 Page 10 of 10