Your Land Is My Land - Part II - Adverse Possession

Breface:

In Part I we discussed the law of prescriptive easements as an encroachment on the use of your land. In Part II we review the law of adverse possession - the potential loss of the actual title and ownership to some or all your land.

The Legislation:

Claims for adverse possession in Ontario are dealt with in sections 4, 13 and 15 of the Real Property Limitations Act. Their effect is to create a limitation period of ten (10) years during which you,  the true (paper) owner, must bring an action to recover possession of your land. The period runs from the date that possessory title was established by the squatter. If you do not do so in time, your paper title may be extinguished and the squatter would then become the true owner of the land by adverse possession.

Under ss. 4 and 15 of the Real Property Limitations Act the interest of the true owner of land may be extinguished by a person who has been in adverse possession of that land for ten years. Sections 4 and 15 provide:

4. No person shall make an entry or distress, or bring an action to recover any land or rent, but within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to some person through whom the person making or bringing it claims, or if the right did not accrue to any person through whom that person claims, then within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to the person making or bringing it.

. . . . .

15. At the determination of the period limited by this Act to any person for making an entry or distress or bringing any action, the right and title of such person to the land or rent, for the recovery whereof such entry, distress or action, respectively, might have been made or brought within such period, is extinguished.

At the end of the ten-year period these provisions bar the remedy and extinguish the title of the true owner. 

Tests for Establishing Adverse Possession:

The squatter can also bring an action for a declaration that they have a possessory title to your land. Whoever brings the proceeding, to be successful the possessor must prove the following:

1. That they had actual possession of the disputed property throughout the statutory period. The possession required is such that it must be open, notorious, constant, continuous, peaceful and exclusive of the rights of the true owner. Said another way, it cannot be equivocal, or for a special or temporary purpose. It may, however, be occasional use if the nature of the land and the reasonable uses of it support such a possessive use. The openness of the user puts the true owner on notice and allows the time to run in which they must take action to preserve their title;
2. That they had the intention of excluding the true owner from possession. This test and test # 3 below are often intertwined. Where test 3 is not made out, test 2 becomes irrelevant. Such an intention is easier to find or infer where the trespasser does so in the mistaken belief of ownership or some other colour of right.
3. That they effectively excluded the true owner from possession. This means the exclusion of the owner from the purposes for which they intended to use the land in question. This requires an analysis of the type of land in question, its location, and the uses of it intended by the true owner. The claimant must show an exclusion of the owner for those intended purposes during the period of the possessory claim. Future intended uses are not relevant

The claim will fail unless all three tests are satisfied. Further, it is only after the last of the three are met, in any order, that the statutory period begins to run.

Inconsistent Use:

The test of inconsistent use appeared in the 1879 English decision of Leigh v. Jack where it was said that:

I do not think that there was any dispossession of the plaintiff by the acts of the defendant: acts of user are not enough to take the soil out of the plaintiff and her predecessors in title and to vest it in the defendant; in order to defeat a title by dispossessing the former owner, acts must be done which are inconsistent with his enjoyment of the soil for the purposes for which he intended to use it:
that is not the case here, where the intention of the plaintiff and her predecessors in title was not either to build upon or to cultivate the land, but to devote it at some future time to public purposes. The plaintiff has not been dispossessed, nor has she discontinued possession, her title has not been taken away, and she is entitled to our judgment. 

The test has been accepted and adopted in Ontario although sometimes referring to the second test above, and some time to the third. Those cases though, as did Leigh v. Jack, involved a possessor who was a trespasser - someone who knew the land they were using was not their own. The test does not apply where there is a mutual mistake between the parties as to who owns the land.

The Burden of Proof:

The burden of proof is, therefore, higher for a trespasser than it is for a possessor under a colour of right or a mistaken belief of ownership. A possessor who knows they are not the owner must show that there is no use intended by you which is inconsistent with their claim to exclusive use. It is a lower burden where both parties are mistaken about the true ownership of the disputed land or where the claimant is honestly of the belief that they are the true owners of the disputed land. In that case, the inconsistent use test is not used by the courts. There the court can draw an inference that the possessor has the intention of excluding all others from possession including the paper owner.

Impact of the Land Titles Act:

In Ontario real property has been registered under two regimes or systems, Registry and Land Titles. Registry titles are slowing being converted into the Land Titles system. A possessory title, or adverse possession, can only be established for Registry properties. The Land Titles Act expressly prohibits title being obtained by adverse possession. Therefore where land has been converted form Registry to Land Titles, the ten year period of adverse possession must have occurred in a ten year period before the conversion.

Rights Of Way:

A possessory title can be subject to a right of way.

Sum & Substance:

1. A possessory title can only be made out for land in the Registry Deposit system;
2. A possessory trespasser has a higher burden to prove a possessory title;
3. The test of "inconsistent use" does not apply in cases of mutual mistake as to the true ownership of the land in question.