In Land Registry, or Qualified Land Titles, it is possible to obtain a possessory title to exclude the paper title holder of real estate.
In order to obtain such possessory right, the paper title holder must be dispossessed and there must be an actual possession, an occupation exclusive, continuous, open or visible and notorious. The possession must not be equivocal, occasional or for a special or temporary purpose.
But what if the possession commenced with the agreement of the paper title holder? Does that initial agreement mean possessory title can never be obtained?
Last week's Newfoundland Court of Appeal decision in Finn v. Frederick (Estate), 2008 NLCA 14 deals with this issue. The possessor took possession of the land from the paper title holder under an agreement which was then breached. Title never passed but the possessor kept possession.
The Court found that, after a reasonable period of time had passed and it was clear the possessor was not going to fulfill the agreement, the possession took on the character of disposessing the paper title holder and the prescriptive period began to run.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
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