Ontario Superior Court Clarifies the Test to Establish Adverse Possession Over Land

Published on: April 2021 | What's Trending

Traffic sign with two options - Squatting vs Protection of Property

The Ontario Superior Court recently clarified what is required to establish adverse possession over a parcel of land.

Often referred to as “squatter’s rights”, adverse possession is a concept that allows a party to gain legal ownership of land which it does not actually own. In order to acquire land by way of adverse possession, the party must establish a number of distinct factors.

In Jamnisek v. The Estate of Gordan A. Wyant, Ms. Jamnisek and Mr. Raisp (the “Applicants”), together with Ms. Jamnisek’s late husband, Alois Jamnisek, bought a large parcel of land in the Stayner area as tenants in common over 40 years ago. The land was a 50-acre rural property which remains undeveloped. Since purchasing the land, the Applicants used it exclusively.

In 2019, the Applicants discovered that a strip of land forming part of their property (the “Subject Property”) belonged to the estate of Gordan A. Wyant (the “Respondent”), who held legal title to it. The Subject Property had been  purchased by Gordon A. Wyant in 1944 as part of a larger parcel of land.

The Applicants brought an application for an order granting them lawful ownership and an order vesting title in the Subject Property in their names, as tenants in common. They claimed that they had maintained open, exclusive, continuous, and peaceful possession of the Subject Property since it was purchased, and argued that their adverse possession entitled them to an order granting legal title to the Subject Property.

The Court noted that, in order to succeed, the Applicants had to establish that their use of the Subject Property was “open, notorious, constant, continuous, peaceful and exclusive of the right of the true owner”, for any 10-year period prior to November 20, 2000, which was when the Subject Property was transferred into the Land Titles system.

The Applicants also had to establish that their use met the following criteria:

  • they had actual possession of the property in issue;
  • they intended to exclude the true owner from possession of his property; and
  • they effectively excluded the true owner from possession of his property.

The Court concluded that the Applicants had been in actual possession of the Subject Property continuously since they purchased it. In particular, it was noted that the Applicants walked the Subject Property occasionally and put up “no trespassing” signs. The Court held that these actions constituted “open, notorious, peaceful, adverse, exclusive, actual, and continuous” possession.

The Court also stated that the municipality in which the Subject Property was located considered the Applicants’ use of the Subject Property to reflect their actual possession. There was no evidence that anyone else made use of the Subject Property since it was purchased by the Applicants, and the Applicants did what the owner of the land would reasonably be expected to have done in order to assert possession of it.

In regard to the second factor, it was held that the Applicants intended to exclude all persons, including the true owner, from the Subject Property through their actions in posting and maintaining the “no trespassing” signs. The Applicants also demonstrated this intention because their possession of the Subject Property was open, notorious, and continuous, such that the true owner would have been aware of their use and able to challenge it if he wished to do so.

Lastly, the Court found that the Applicants had effectively excluded the true owner since the “no trespassing” signs asserted their possession of the Subject Property and served to exclude all others, including the title owner. The Court also found that no one had challenged the Applicants’ entitlement to post the signs to prevent others from entering the land, nor had anyone requested their permission to enter the Subject Property.

It was therefore held that the Applicants successfully passed the test to establish possessory title by way of adverse possession, as their possession of the Subject Property had been “open, notorious, constant, continuous, peaceful, and exclusive of the rights of the true owners” since they purchased it. The Applicants were granted an order extinguishing the rights and title of the Respondent to the Subject Property and a declaration that the Subject Property was to be vested in the name of the Applicants as tenants in common.

In this case, the claim to adverse possession was clear. However, not all such claims are nearly as straightforward; and, in general, adverse possession is not easy to establish. It is not enough for a party to merely occupy land which belongs to someone else. If the party does not make conscious efforts to exclude others and if there is any indication that the rightful owner has tried to lay claim to the land during the subject period, adverse possession will likely prove to be elusive.

Before trying to establish legal ownership through adverse possession, parties would be wise to keep the subject factors in mind. This case serves as a good resource for how to establish those factors in a given case.

Author: Daniel Waldman, Lawyer

The author would like to thank Lucas Morini, Student-at-Law, for his assistance with this article.