Adverse Possession

In Land Registry, or qualified Land Titles, adverse possession for 10 years or more leads to a title superior to that of the paper title holder.

A key to adverse possession is that the paper title holder must be excluded from the use to which the paper title holder wishes.

Yesterday's Court of Appeal decision in Tasker v. Badgerow, 2008 ONCA 202 emphasizes the importance of the use of the paper title holder. Unless that use is excluded no adverse possession cannot create a title superior to that of the paper title holder.

The Court held:

[1]               The appellant submits that the application judge committed a palpable and overriding error in holding that he had not acquired title by adverse possession.  Specifically, he submits that the fence around the property is strong evidence of intent to exclude the original owners from its use and that, together with actual open possession for over ten years without objection by the original owners, he has title by adverse possession.

[2]               The appellant's argument ignores the special nature of the land in issue.  The land in question is a Mill Reserve and the trial judge found the claimant's use was not inconsistent with the owners' use.   The trial judge stated at para. 123 of his reasons, there is no evidence, "….that the owners of the Mill Reserve ever intended to do other than keep the land for purposes containing a millpond or head pond resulting from damming the Beaver River."
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4