What is an Adverse Possession in Canada?

A close look at what adverse possession is, key requirements, notable cases, and other important factors.

Adverse possession, commonly identified as “squatter’s rights,” refers to a legal doctrine in Canada allowing an individual to claim ownership of land under specific conditions. This doctrine addresses instances where someone has occupied land for an extended period without the owner’s permission.

Understanding Adverse Possession

Adverse possession is a method for someone without a legal title to a piece of land to eventually become its owner. This usually happens when the individual has occupied the land openly, continuously, and without the owner’s consent for a statutory period. The principle is grounded in the belief that land should be utilized and that owners who neglect their property for long durations should not be able to reclaim it to the detriment of someone who has put the land to productive use.

Key Requirements for Adverse Possession

To claim adverse possession successfully, several criteria must be met:

1. Continuous Possession: The claimant must demonstrate uninterrupted possession of the land for a specific period, usually 10 years in Ontario. This involves treating the property as their own without significant gaps in occupation.
   
   
2. Open and Notorious Possession: The occupation must be evident to anyone, including the registered owner. The rightful owner must be able to notice the occupation and have the opportunity to take action if they choose.
   
   
3. Exclusive Possession: The claimant must not share control of the land with the public, the owner, or other unauthorized occupants. It must be clear that the claimant is exercising exclusive control over the property.
   
   
4. Hostile Possession: This implies that the claimant’s possession is without the owner’s consent. Possession must be against the rights of the true owner and without any form of permission, such as a lease or rental agreement.

Legal Process and Burden of Proof

Establishing a claim of adverse possession involves a specific legal process. The burden of proof rests with the claimant, who must provide substantial evidence to support their claim. Evidence may include witness testimony, photos and documentation, and surveys and expert testimony.

• Witness Testimony: Individuals who can attest to the claimant’s long-term possession of the property.
• Photographs and Documentation: Visual and written records showing the claimant’s use of the land over the claim period.
• Surveys and Expert Testimony: Professional assessments and detailed surveys demonstrating exclusive possession and use.

Notable Cases and Legal Precedents

Adverse possession cases often escalate to higher courts for resolution. In Kosicki v. Toronto (City), a Toronto homeowner fenced off a portion of city parkland for decades. This case questioned whether city parkland could be adversely possessed, noting that the Real Property Limitations Act makes exceptions for certain government lands.

In another case, Jamnisek v. The Estate of Gordan A. Wyant, the Ontario Superior Court clarified requirements for establishing adverse possession. The court emphasized that possession requires being “open, notorious, constant, continuous, peaceful, and exclusive of the right of the true owner” for a 10-year period prior to the land being converted to the Land Titles system.

Provincial Variations

The requirements and statutory periods for adverse possession vary across Canadian provinces.

In Alberta, for example, the Limitation of Actions Act specifies conditions for adverse possession claims. The claimant must occupy the land for a specific period. Legal title is not obtained until a court judgment certifies the requirements have been met.

Defending Against Adverse Possession

Property owners can defend against adverse possession claims through regular inspections, establishing clear boundaries and using formal agreements.

• Regular Inspections: Regularly inspecting the property to detect any unauthorized occupation.
• Clear Boundaries: Clearly marking property boundaries to prevent encroachment.
• Formal Agreements: Using formal agreements to grant permission for use, thereby negating any claim of hostile possession.

Recent Developments

As of August 2024, The Supreme Court of Canada is set to hear an appeal involving a claim for adverse possession of a piece of parkland in Toronto. This case may influence courts’ interpretation of the Real Property Limitations Act and the extent to which public lands can be adversely possessed.