The Rural Voice, 1993-12, Page 20Agrilaw
Claims on adverse possession
The most conventional way to acquire
ownership to lands is, of course, by deed
registered in the Registry Office;
however, it is not the only way.
The Courts in this Province have long
recognized that a person may acquire
ownership of another's lands through
adverse possession of those lands for a
sufficient period of time. The Limita-
tions Act, a provincial statute, specifies
that possessory ownership is acquired
after 10 years.
As you might expect, there have been
numerous claims to ownership based on
adverse possession. As a result, a sub-
stantial body of case law has developed.
This case law sets out very clearly de-
fined requirements that a claimant must
meet if he wishes to extinguish the legal
title of a registered owner to a piece of
land.
The burden of proving adverse
possession rests on the person claiming
ownership by possession. This makes
sense, because the claimant is asking the
court to disregard the usual and most
obvious proof of ownership, namely the
registered title.
To succeed in establishing adverse
possession, the claimant must prove that
he or she has had exclusive, open,
visible, continuous, undisturbed and
uninterrupted
possession of the
lands for a
minimum of 10
years. The
claimant must
establish his
possession and
his intention to
exclude others
from possession,
including the
registered owner.
Recently, the
courts have
imposed an added
burden: the
claimant's
possession must prevent the registered
owner from making the use which the
registered owner intended for the
property. In one case, the Court
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16 THE RURAL VOICE
dismissed a claim of adverse possession
because the registered owner was simply
holding the lands for some future
development. In another case, the Courts
rejected a claim of adverse possession
where the claimant's use was seasonal
and during a time of the year when the
registered owner had no real use for the
property.
Of course, the key component to a
successful claim of adverse possession is
actual possession. The courts will
examine the party's conduct and activi-
ties on the property being claimed. Has
he fenced off the land? Has he grown
crops on it or used it for livestock? Has
he excluded others from going onto that
property?
The amount of activity required to
show possession is different in each case.
There are a number of factors that are
looked at by the Court, including the
nature of the property. In one case, the
Courts held that seasonal occupation of
the land was enough where it was a
cottage property.
Possession of the property for the
minimum 10 -year period must be con-
tinuous. The courts have allowed conse-
cutive owners to run their time together
for the purpose of establishing a 10 -year
period. For example, if Smith adversely
possessed part of his neighbour's lands
for eight years, then sold to Jones, who
occupied it adversely for another two
years, Jones may assert possessory title
to those lands. If there is any interrup-
tion, then the time period begins anew.
Adverse possession cases are not as
infrequent as you might expect. If a
portion of your lands are being occupied
by someone else, or if you are occupying
another's lands without permission, there
may be significant owner's rights to be
asserted, either to establish ownership
through possession or to refute it.0
Agrilaw is a syndicated column produced
by Cohen Highley Vogel & Dawson, a
full service London law firm. Russell
Raikes, a partner in the firm, practises in
the area of commercial litigation,
including land disputes. Agrilaw is
intended to provide information to
farmers on subjects of interest and
importance. The opinions expressed are
not intended as legal advice. Before
acting on any information contained in
Agrilaw, readers should obtain legal
advice with respect to their own
particular circumstances.