The Ontario Courts have recently ruled on the issue of Adverse
Possession in the case of Teis v. The Corporation of the Town
of Ancaster. In that case, Teis sued the Town ofAncaster for
a declaration that Teis had acquired what is known as "possessory
title" to two (2) strips of land which were on the western
edge of the public park in the Town of Ancaster. The Town had
a paper title to those strips of land. Teis and his family thought
that the property belonged to them and had created a laneway
to move their farm equipment over that property.
Over the years, members of the public had used the lane way
to gain access to the park. What is unique about this lawsuit
is that it states the current law in the area. The Court held
that "for a successful claim of adverse possession, the
possession must be open, notorious, peaceful, adverse, exclusive,
actual and continuous".
This test would apply where both the paper title holder and
the individual or group claiming are mistaken about their representative
rights regarding the property. If the Plaintiff were not able
to prove that the act of possessing the property was open, notorious,
peaceful, adverse, exclusive, actual and continuous for at least
a ten (10) year period, then they would not succeed.
In
fact, the Court went on to state that if any one (1) of those
elements were missing during the ten (10) year period that
the claim would fail. The finding to be determined is a matter
of fact. In the case at hand, the Plaintiff was able to prove
its case and succeeded.
The Court went on to indicate that open and notorious means
that the person claiming possession is using the property
as an owner might. The possession must be open so that it
puts the true owner on notice that the statutory ten (10)
year period has begun to run. The doctrine of adverse possession
is based on the true owners failure to take action within
the ten (10) year period. The element of adversity in adverse
possession means that the individual claiming must be in possession
of the property without the permission of the owner. If they
acknowledge the right of the true owner, then the possession
is not adverse.
This is an issue which comes up from time to time. If you,
as a Realtor, are faced with an issue involving adverse possession
- SEEK LEGAL ADVICE.
As always, the lawyers and staff at Korman & Associates
are available to assist Realtors 24 hours a day, 7 day a week
basis, free of charge. Please feel free to call anytime.
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