Happy Trails: The Welcome Law of Adverse Possession

In Britain and other parts of the world, there are wonderful path systems throughout the country open to the public and horses. In my youth, we rode the bridle paths of Kent. In Ontario, there are similar beautiful riding trails that stretch over public and private lands.

But private landowners change and sometimes the new owners do not want the trail system through their property. A fence goes up and a favourite trail, perhaps linking other trails and public lands, becomes unusable. What can you do?

It may be a simple matter of communication. The new owners could be unaware of the importance of the trail and its benefits to the community. The new owners could be afraid of risk and accidents. Good neighbours do not have to put up fences and with some knowledge and perhaps, some organization and signed written waivers (if risk is the issue – see more about waivers in an upcoming article), the trail can be opened back up and life goes on.

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What is ‘Adverse Possession’?

If communication does not work, consider the doctrine of adverse possession. In a situation where a person has been using someone else’s land unimpeded for more than 10 years, that person may have a right to continue to use that land in the same manner in perpetuity. More particularly, if a person has been using or occupying another person’s land and they can prove: (1) actual possession for 10 years or more, (2) that possession was with the intention of excluding the legal owner, and (3) that for the duration of possession the legal owner was excluded from possession, the legal owner’s title to the land will be extinguished.

Actual possession must be open, notorious, peaceful, adverse, exclusive, actual, and continuous. In other words, for a period of at least 10 years, the possessor must have used or occupied the land as an owner might have;

without the use of violence to gain or maintain possession;
continuously given the type of property (e.g. cottage season for cottages);
without permission or any acknowledgement of the legal owner’s rights to the land;
such that the legal owner knew or could have known about the use or occupation;
such that the legal owner could not simultaneously use or occupy the land; and
in a way inconsistent with the way that the legal owner intended to use the land.

That last point is interesting because it does not apply where there is mutual mistake about the identity of the legal owner of the land. If the legal owner believed that the possessor owned the land, then they could not have had an intended use for the land. Therefore, the possessor only has to prove that they intended to exclude the legal owner from using the land rather than that they intended to exclude the legal owner from using the land for its intended purpose.

For horse farms, claims for adverse possession can be significant. For example, an owner of a horse farm may have a claim for adverse possession where they inadvertently erected a fence for their horse paddock on their neighbour’s property or their horse-riding trail runs over a portion of a privately-owned beach. In such cases, some important questions to ask are:

Was the use or occupation for a period of at least 10 years?
Was the use or occupation open (i.e. not in secret) and peaceful (i.e. not achieved through violence)?
Did the legal owner know or could they have known about the use or occupation?
Did the possessor have the legal owner’s permission to use or occupy the land? Or did the possessor acknowledge the legal owner’s property rights in any way?
Was use or occupation continuous (e.g. throughout the year, only during summer)?
Was the legal owner able to simultaneously use or occupy the land?
Was the possessor’s use inconsistent with the legal owner’s intended use for the land (e.g. possessor had a horse-riding trail where the legal owner would have had a beach volleyball court)? Or were both parties mistaken about the legal ownership of the land?

A word of caution

A court is unlikely to grant possessory title where a possessor deliberately encroached on their neighbour’s property with the intention of building a case for adverse possession.

Finally, it is important to note that parties cannot advance a claim for adverse possession for properties registered in Ontario’s land titles system. In Ontario, there are two land title registrations systems: the old “registry system” governed by the Registry Act and the new “land titles system” governed by the Land Titles Act. Under the land titles system, each parcel of land has a parcel register which is effectively a statement of title. The benefit of this system is that there is no need to look beyond the parcel register to determine title or encumbrances on title.

When the Government of Ontario converted title registration for properties from the registry system to the land titles system, it created converted parcels known as Land Titles Conversion Qualified parcels and identified approximately 30,000 registry non-convert properties which could not be converted due to deficiencies or questions regarding title. Therefore, in order to make a claim for adverse possession for properties located in Ontario, the first question to ask is: Did the possessor use or occupy the land for at least 10 years before the land was converted to the land titles system; or, is the land a registry non-convert property? If the answer to either question is “yes”, then a possessor can proceed with a claim for adverse possession.

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Catherine E. Willson is counsel in the law firm, Goldman Sloan Nash & Haber LLP, (willson@gsnh.com) a full-service law firm in Toronto, Ontario (www.gsnh.com). This information deals with complex matters and may not apply to particular facts and circumstances. The information reflects laws and practices that are subject to change. For these reasons, this information should not be relied on as a substitute for specialized professional advice in connection with any particular matter.