Thursday, April 9, 2015

Adverse Possession under the Registry Act

McClatchie v. Rideau Lakes (Township), 2015 ONCA 233:

9]          Before turning to the trial judge's decision and the issues raised by the appellant, I will briefly review the law of adverse possession. This law is not in dispute. To establish adverse possession of certain lands, a claimant must demonstrate that throughout the ten-year adverse possession period, he or she: a) had actual possession of the lands in question; b) had the intention of excluding the true owner from possession; and c) effectively excluded the true owner from possession: Masidon Investments Ltd. v. Ham (1984), 45 O.R. (2d) 563 (C.A.), at p. 567.

[10]       An adverse possession claim will fail unless the claimant meets each of the three criteria, and time will begin to run against the true owner of the lands only from the last date when all three are satisfied: Masidon, at p. 567.

[11]       To establish actual possession, the acts of possession must be "open, notorious, peaceful, adverse, exclusive, actual and continuous": Teis v. Ancaster (Town) (1997), 35 O.R. (3d) 216 (C.A.), at p. 221. If any one of these elements is missing at any time during the statutory ten-year period, the claim for possessory title will fail: Teis, at p. 221.

[12]       If the claimant acknowledges the right of the true owner, then possession will not be adverse. Acknowledgment of title will thus stop the clock from running: Teis, at p. 221; Goode v. Hudon (2005), 30 R.P.R. (4th) 202 (Ont. S.C.), at para. 184; 1043 Bloor Inc. v. 1714104 Ontario Inc., 2013 ONCA 91, 114 O.R. (3d) 241, at para. 73.[3] Legislation likewise makes this clear. Section 13 of the Real Property Limitations Act, R.S.O. 1990, c. L.15, provides that a written and signed acknowledgment of title to land resets the clock for an adverse possession claim over that land.

[13]       An agreement regarding one part of a property that the parties do not contemplate as applying to another part will not constitute an acknowledgement sufficient to interrupt adverse possession on that latter part: Tasker v. Badgerow, 2007 CanLII 23362 4086 (Ont. S.C.), at paras. 47-49, aff'd on other grounds 2008 ONCA 202.

No comments: