Adverse possession, often colloquially but incorrectly referred to as “squatters rights”, is a legal doctrine by which a party obtains legal ownership of land by extended, exclusive possession, and therefore supersedes the ownership right of the registered (or “deeded”) title holder. The possessed land could be as significant as an entire property/building, or as minor as a one-inch strip of land along the edge of a driveway or fence which is slightly misaligned with a property line.
The doctrine evolved from a legal theory that landowners have a positive obligation to protect their lands from unauthorized occupiers and, if they do not, the occupier’s reliance on longstanding, undisputed occupation will be protected by the law. In effect, the law infers that the true registered title holder has effectively abandoned or admitted to the loss of ownership in the disputed lands.
Originally inherited from the common law of England, the doctrine is partly codified in Ontario law, and it has been widely accepted as requiring a claimant to demonstrate the following criteria:
- the claimant must have open, notorious, peaceful, exclusive and continuous possession for the statutory period of 10 years;
- the claimant’s possession must be with the intention of excluding the owner or other persons entitled to possession; and
- the registered owner (and any others entitled to possession) must be out of possession for the ten-year period.
The relevance of the culturally popular doctrine, however, is slowly eroding away in Ontario.
Near the turn of the millennia, Ontario’s public land registry underwent a monumental shift when the Province began to automatically convert land from the old “registry system” to the long-existing but infrequently used “land titles system”. The precise differences between the two systems are not discussed here but objectively speaking, the land titles system is an improvement over the registry system.
One of the benefits of the land titles system was the creation of certain guarantees and protections of a landowners to title to land, including an immunity from possessory title claims, such as adverse possession. This protection, however, only had effect for the period after conversion into the land titles system. In other words, adverse possession claims which crystallized prior to the date of conversion could still be established.
By 2011, the vast majority of land in Ontario was under the land titles system. The only properties which were not converted (commonly referred to as “non-converts”) were typically passed over by the Province due to the land in question having incomplete or contested ownership or boundaries (such as where the deeds for neighbouring properties have conflicting descriptions of the property line, or if two parties each hold a deed which evidences them as the sole owner of the same piece of land). When faced with a non-convert, legal advice to clients is usually to heavily scrutinize title, given the high likelihood of title defects. As was always the case, lands in the registry system can still be converted into the land titles system, but that process requires a new survey, resolution of outstanding boundary or title disputes, and a formal application by a lawyer to the land registrar.
With so few properties remaining in the registry system, and as the owners of the last non-converts, with help from real estate lawyers, convert their title to the land titles system, there are increasingly limited opportunities for an adverse possession claim to arise.
With respect to lands already in the land titles system, the mere passage of time makes claims increasingly difficult to prove; witnesses die or move away, memories fade and become unreliable, and records are lost or destroyed.
We cannot predict when the last non-convert will finally be moved into the land titles system, but as of that point, adverse possession’s remaining days will be numbered.
Michael is a member of Soloway Wright LLP’s Real Estate & Development Group, with expertise in the purchase, sale, finance, and development of multi-unit residential and mixed-use projects. Having represented developers, municipalities, institutional lenders, and homebuyers, Michael has experience navigating many legal issues which involve real estate, including in the contexts of corporate reorganizations, litigation, land development, and bankruptcy and insolvency. With a background in mechanical engineering and experience advising some of Ontario’s largest condominium developers, Michael has a practical and level-headed approach to finding efficient solutions to his client’s legal issues.
For all your real estate questions, feel free to contact our Real Estate team at Soloway Wright LLP.
