Putting Your Best Foot Forward: Towards a Successful Adverse Possession Claim
If you are unsure whether a portion of adjoining land belongs to you, you might consider whether it is legally permissible to claim it as your own. Generally speaking, if you are seeking a legally enforceable right to property over which you do not have legal title, you will seek one of two remedies: adverse possession or an easement. Adverse possession is essentially a court ordered annexation that transfers title over the claimed land to you. An “easement,” by contrast, is used to establish a non-possessory right to use someone else’s land for a specific, limited purpose, such as the right to passage, the right to use a structure, or the right to use a parking space. An easement does not grant the claimant title.
A recent summary judgment decision of the Superior Court of Ontario in Anthony v McKenzie illustrates essential considerations for anyone claiming adverse possession or an easement: statutory time requirements and evidence. The case has heightened importance after being approved by the Ontario Court of Appeal and leave to appeal to the Supreme Court was denied in July 2019.
1) Time requirements
Over the course of the last couple of decades the Ontario Government has converted nearly all property in Ontario from the old paper system under the Registry Act to an electronic registry system under the Land Titles Act. Once properties are converted to “Land Titles Conversion Qualified” under the electronic registry, the clock for demonstrating adverse possession stops and only claims that are grandfathered from 10 years prior to conversion are legally enforceable. To be successful, a claimant must demonstrate notorious, open, continuous, and peaceful possession of the land. Further, this possession must be to the exclusion of the rights of the true owner over at minimum the 10-year statutory period. When title is transferred to “Land Titles Absolute,” it defeats any possible claim for adverse possession or easement, largely because it requires giving notice to any potentially interested parties.
Easements also require that the use in question is notorious, open, continuous, and peaceful, but have further requirements. This includes that the benefit sought is a burden to the land owner, that there are different owners of the respective land parcels, and that the easement is capable of being a legally enforceable grant of a defined scope, such as a right to free passage. The statutory time requirement for easements is 20 years prior to title being converted to the electronic registry system under the Land Titles Act. It is important to recognize the importance of the “continuous” requirement for both easements and adverse possession. While it allows for evidence to be brought in from multiple owners, there cannot be any interruption in the possession or use of the disputed land.
2) Evidence and Anthony v McKenzie
But how does one demonstrate notorious, open, continuous, and peaceful occupation or use of land? The question becomes more difficult in situations requiring evidence from previous owners and even generations. In his reasons for judgment in Anthony v McKenzie, Justice Sutherland stresses the importance in adverse possession claims of the continuous intention to exclude the actual title holder. In this situation, the Plaintiff was unable to demonstrate that the previous owner from whom they had acquired title had been excluding the Defendant from the area in question.
This raises an interesting question: what if the previous owner had sided with the Plaintiff or was dead, could someone else in their place, such as a relative or neighbour, provide evidence in support of an adverse possession claim? In Anthony v McKenzie the fact that the Plaintiff had insufficient evidence to support their claim was fatal. However, in his reasons Justice Sutherland leaves the door open for evidence to be provided from actions and intentions of previous owners to meet the requirements of a successful adverse possession or easement claim.
As the statutory time periods reach further into the past, it becomes increasingly difficult to assemble evidence spanning different generations of title holders that demonstrates adverse possession or easements. With over 97% of properties in Ontario already converted to the Land Titles system, these claims will not just become increasingly difficult to prove, but also more infrequent.
– Ron Petersen and Josef Gallant (Articling Student)[ssba]