Adverse possession or squatters' rights

Shennan v. Szewczyk, 2010 ONCA 679 was released online today and deals with the issue of adverse possession – sometimes know as squatters’ rights.  Since much of Ontario has moved from Land Registry to Land Titles the issue of adverse possession is of less importance than it was a generation ago.  That said, especially in rural areas, adverse possession still is significant.  The Court holds:

 

 

[18]          Nor did the trial judge err applying the law respecting adverse possession, in our view.  Generally, to establish adverse possession, the claimant must show (a) actual possession throughout the statutory period (here, 10 years by virtue of s. 4 of the Real Property Limitations Act, R.S.O. 1990, c. L.15, s. 4); (b) the intention to exclude the true owner from possession or use to which the true owner intended to put the land during that period; and (c) effective exclusion of the true owner throughout the statutory period: Bellini Custom Cabinetry Ltd. v. Delight Textiles Ltd., 2007 ONCA 413, at para 32.  Mr. Oldfield argues, however, that the “inconsistent use” criterion – (b) above – does not apply in cases of mutual mistake, and that the trial judge erred in ignoring that law in the circumstances: see Teis v. Ancaster (Town) (1997), 35 O.R. (3d) 216 (C.A.), at p. 224; Key v. Latsky (2006), 206 O.A.C. 116, at para. 18.

 

[19]          The trial judge did not ignore that law.  He met the question of mutual mistake head on and found as a fact that this was not a case of mutual mistake.  As we have indicated, he was justified in making that finding.

 

[20]          In any event, the criterion of effective exclusion of the true owner throughout the 10-year period remains a requirement, even in cases of mutual mistake.  We do not read the decisions of this Court in Key and Teis as reading the “effective exclusion of the true owner” criteria out of the adverse possession requirements in cases involving mutual mistake.  Neither case dealt with the effective exclusion requirement, and nothing was said in the reasons of the Court in either case to rule it out in cases of mutual mistake.