2017 Harvest

2017 Harvest

Monday, August 11, 2014

Is entering your property only once in 10 years enough to prevent a successful claim for adverse possession?

Justice E.M. Morgan's decision begins with this question: "Can a claimant have possessory title if the registered owner entered the property only once during the claimant's ten years of otherwise undisturbed adverse possession?".  Under Ontario law, the interest of the registered owner of land may be extinguished by a person who has been in adverse possession of the land for ten years.  The registered owner is then open to losing title to the property to the adverse possession claimant.

In this case, the land in dispute was a small triangle at the top end of a driveway between two properties.  The adverse possession claimant had a right of way over the driveway, but not over the small triangle.  The triangular area was used to facilitate the claimant's turning his car into his garage at the rear of his property.  The registered property owners asked the Court to make a declaration confirming their ownership of the triangle.  They also sought orders requiring their neighbour to remove fencing, interlocking brick and a gate that he had installed on the driveway (which they owned).  The claimant responded by asking the Court to declare him the owner of triangle by adverse possession.

Justice Morgan reviewed the evidence of adverse possession, which must constitute "strict proof".  In the past, a chain link fence had been erected to separate the triangle from the rest of the registered owners' property.  It was established that the fence was installed no later than March 31, 1988.  Owing to the conversion of the property to the Land Titles system in 2001, the claim for adverse possession would depend on establishing exclusive possession by the claimant (or his predecessors in title) of the triangle for an interrupted period of ten years between 1988 and 2001. 

What does it take to interrupt the exclusive possession?  In this case, a previous owner of the triangle deposed that on at least one occassion, in 1996, he entered the triangle to cut down some "swamp maple trees" located there.  That meant that the 10-year clock stopped and restarted in 1996, which did not leave enough time before 2001 to establish continuous adverse possession.  Therefore, Justice Morgan ruled that the registered owners retained their title to the triangular area on their property.

As for the encroaching fence, gate and interlocking brick, Justice Morgan again ruled in favour of the registered owners of the property: "The Applicants are showing their frustration, and are being somewhat difficult by insisting that the interlock be removed from their portion of the driveway.  Nevertheless, they are within their rights to so insist.  The Respondent is not permitted to alter the Applicant's property without consent even if the alteration is, objectively speaking, an improvement."

Read the decision at: Maras v. Milianis.