Adverse Possession, Squatters Rights and Land Titles
Many real estate owners in Toronto wonder if they have lost title to a portion of their property by virtue of the fact that they allowed their neighbors to put a fence close to the property boundary. The legal rule that would justify such an event is referred in Canadian law as Adverse Possession, more commonly known as ‘Squatter’s Rights’.
Adverse Possession is based on an old rule that many real estate lawyers believe to be very unfair, which is part of the reason that the law has evolved to make enforcement of a Squatter’s claim to be very difficult. The legal test to have an adverse possession claim established outlines that the claimant, or a predecessor of the claimant’s title, must demonstrate that for 10 years the claimant
was in actual possession of the lands claimed;
had the intention of excluding all the world including the true owner from possession of the lands; and
effectively excluded the owner from possession.
To prove part 1 of the test, the possession had to be “open, notorious, constant, continuous, adverse, exclusive” in relation to the right of the true owner, “without the permission of the true owner.” While this aspect of the test is often difficult to meet, subsequent court rulings have instituted the Inconsistent Use Test, which is even more onerous for prospective plaintiffs.
The Inconsistent Use Test requires claimants to demonstrate that their 10 year possession was inconsistent with the current or intended use of the titled owner. So more often than not, property owners can rest assured that title to their entire property remains theirs; however, there are other claims that can attach to your property, such as easements, depending on the arrangement between yourself and your neighbor when you erected your fence.
If you have any doubts about whether your neighbor may have an Adverse Possession claim, or would like to ask some questions about easements, do not hesitate to contact us for a free consultation.