What is adverse possession?

Sometimes property that does not belong to you can belong to you.

The doctrine of ‘adverse possession’ is an old legal principle that allows an individual to effectively take legal ownership of another property, if they can establish that they have “openly” and “notoriously” occupied the land for long enough.

The law was eventually codified and modernized in the Real Property Limitations Act, which means that the application of adverse possession is extremely limited today.

First, for adverse possession to apply to a property, the possession of the land needs to have started at least 10 years before the property in question was converted from the Land Registry system (the old system of registering properties in Ontario) to the Land Titles system (the new system).

Second, the possession needs to be “actual, open, notorious, constant, continuous and peaceful”, which means that you, and everyone else, should know that you are openly and freely occupying the land.

Finally, you need to intend to exclude the registered owner from possession, and the registered owner has to be actually excluded.

How to avoid adverse possession?

Usually, the best way to satisfy the above requirements is by fencing off the property in question (of course for a period of 10 years before the property was converted to the Land Titles system. You cannot just fence off your neighbour’s property, despite their protests, and call it yours!)

Until recently the general belief was that adverse possession only applies to private lands and not public lands. So, any land that is owned by the government cannot be adversely possessed.

A decision from the Ontario Court of Appeal, which is now going to the Supreme Court of Canada, may challenge that rule.

In the case of Kosicki v. Toronto (City), 2023 ONCA 450, a Toronto homeowner fenced off a portion of city parkland for decades.

Everyone accepted that the homeowner had met the traditional requirements for adverse possession, but the real question was whether city parkland was capable of being adversely possessed.

The Real Property Limitations Act makes a specific exception for certain types of government land that cannot be adversely possessed. However, that section is worded in such a way that it does not include city parkland.

What do the Courts think?

The judge who first heard the case ruled that just because the Real Property Limitations Act did not include city parklands in its exception, did not mean that city parklands could be adversely possessed.

Instead, the judge relied on another recent Ontario case to find that a “public benefit” exception existed, independent of the Real Property Limitation Act, which prevented city parkland, or any land that was for the public benefit, from being adversely possessed.

The Ontario Court of Appeal was divided. The majority agreed with the first judge.

However, Justice Brown of the Ontario Court of Appeal wrote a scathing dissent, where he said that the decision incorrectly applied the law.

Justice Brown held that the Real Property Limitations Act codified the traditional doctrine of adverse possession, and that the law was now locked in, and could not be changed by the courts.

If the Real Property Limitations Act did not create an exception for city parklands, Justice Brown said, then judges could not just create their own exception and add it to the law.

He went further, and said that in a democratic system of government, judges (who are unelected) should exercise their powers with restraint and not exceed their bounds.

He believed that judges in this case had done exactly that.

What’s Next?

The Supreme Court of Canada will now weigh in.

Will they agree with Justice Brown? Or will they side with the majority of the Ontario Court of Appeal and find that city parkland cannot be adversely possessed.

We shall see which side of the fence they land on.

If you require assistance with adverse possession, contact our Trusted Litigation Lawyers and we would be happy to help.

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