When an individual, not the owner, takes
possession of the property, hostile to, and
without the consent of the owner and remains
in exclusive possession using the land like
an owner and ignoring the claims of other
persons including the owner. It is possible,
by adverse possession, for an occupier of
land to extinguish the title of the owner.
The possessor then becomes, in effect, the
owner of the land.
Title by adverse possession began in
medieval times, given the number of large
estates and the fact that absentee
landowners and squatters often entered and
stayed on those lands for long periods. With
the introduction of more accurate surveys,
the number of squatters has become smaller.
Under common law, a person can acquire
possessory title to lands under certain
circumstances by taking possession of the
lands for a period of time as set out in the
applicable provincial law of limitations.
The possession must be open, exclusive, and
continuous for a period, without the consent
of the owner, but with the owner’s
knowledge. Adverse possession ceases to be
effective if interrupted by the owner before
the limitation period has elapsed, or if the
adverse possessor abandons the land before
the limitation period has expired, as the
law considers that possession has returned
to the owner.
As background, possessory title in
Ontario is only granted under the Registry
Act. No title by adverse possession can
occur under land titles. In provinces still
under the registry system (i.e., Maritime
Provinces and parts of Manitoba and
Ontario), statutes set out limitation
periods beyond which an owner loses the
right to regain possession of his/her land.
In Ontario, for those areas under the
registry system, the period is ten years as
set out in the Limitations Act. In Nova
Scotia, the statutory period is set out in
the Limitations of Actions Act and is for a
period of 20 years; if the holder of the
legal title is outside the province, the
period is 40 years. The onus of proof rests
with the individual claiming adverse
possession. Expert legal advice is strongly
recommended regarding such matters.
The principle behind the law of
limitations is that a person who has a right
of action against another must pursue it
within a time period or lose the right.
He/she must not keep the other party in
indefinite jeopardy of being sued. No title
by adverse possession can occur in British
Columbia, Alberta, Saskatchewan, and those
parts of Manitoba and Ontario which are
under the land titles systems. All of these
jurisdictions have provided by statute that
the title of the registered owner cannot be
extinguished by adverse possession.
Example of Adverse Possession
Buyer Jones acquires a one acre rural
lot in Ontario based on measurements and a
survey provided by Seller Smith. Without
precisely measuring the property, both
parties assume that the lot includes a small
laneway on the westerly edge of the lot. The
abutting neighbour, next to the laneway, is
also under the same impression and
consequently no formal consent is required
as everyone assumes that Smith owns the
property in question. In fact, the laneway
is not owned by Smith, but by the neighbor.
A few days following closing, Jones erects a
fence between the lane and the neighbor.
Under common law, the lands in question
might be acquired by Jones through adverse
possession if such possession was open,
exclusive, and continuous for a time period
as set out in provincial legislation,
without the consent of the owner but with
the owner’s knowledge.
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