Adverse Possession in Ontario – Viable strategy or a thing of the past?

Adverse possession is a proceeding by which a property owner loses his/her claim of ownership of a portion of their property to a neighbouring land owner who has established a possessory claim in a court of law. This occurs as a result of the neighbour having used that portion of land for an extended period of time. Does a property owner who built a fence that encroaches on his neighbour’s land by a couple of feet have the right to claim that land as his own? If so, under what circumstances?

The simple answer is that, while technically possible in some specific situations, it is most likely not possible.

It wasn’t always that way, and depends on when your property was converted from the old Registry System to the newer Land Titles System and (crucially) whether or not the adverse possession claim predates that conversion.

Under the old Registry System, property owners operated under the “use it or lose it” rule of thumb. If you let someone else use a portion of your land you could end up losing it if they could prove continuous and uninterrupted use of that land for a period of ten years. Property owners were encouraged to know where their property boundaries lay and visibly mark their use of the land with fences, landscaping, walls and other features that demonstrated their use of land. It wasn’t enough to own the land; you had to prove that you were using it too.

That’s not the situation anymore in the Greater Toronto Area.

Some 35 years ago the Province of Ontario introduced provisions to the Land Titles Act, which, amongst other things, sought to provide property owners certain guarantees of title, and in doing so, protection against adverse possession claims. By 1980, 65% of properties in Ontario had been converted to the Land Titles system. Today that number is 99.9%.

The Adverse Possession Rule in Ontario

If your property is registered under the Land Titles Act then no one can claim adverse possession against your property regardless of how long (or how convincingly) they’ve been using a portion of your land.

 The Exception

The exception to this rule relates to claims that predate your property’s conversion to Land Titles. An adverse possession claim may be considered if:

The use of that land lasted ten consecutive years, AND that entire ten-year period predates the property’s conversion to Land Titles.

In other words, if your property was converted to Land Titles in 2000, any claim of adverse possession would have to prove that the portion of land in question was used continuously for ten years prior to that conversion date – 1990 or earlier.

Today’s Reality

Under these circumstances proving adverse possession is not an easy task. The number of claims in recent years has dramatically decreased.

• The majority of properties are now in Land Titles.
• Adverse possession cannot be claimed against those properties from their date of conversion to Land Titles.
• That just leaves the opportunity for claims that pre-date the property’s conversion, and even then, there has to be concrete proof that the use of that land happened for at least ten uninterrupted years, all before the property’s conversion to Land Titles.

Adverse possession, while still technically possible, is now a rare occurrence in the GTA.

So, How Do I Know if a Property is in Land Titles?

Every property in the GTA has a Parcel Register – the official property description held by the Land Registry System of Ontario. The Parcel Register indicates whether the property is registered under Land Titles or not. You can get a property’s Parcel Register from your Land Registry Office or on GeoWarehouse.

Ontario: Adverse Possession and Residential Real Estate

As a real estate professional you have the opportunity to add value to your client’s experience by correcting buyer and seller misconceptions around adverse possession, and helping them avoid the often-disastrous strategies that arise from them. Most homeowners are unaware of the new Land Titles System and how that has affected adverse possession. They still believe that “squatter’s rights” is a viable course of action. That is simply not true.

Dealing with Sellers

When a seller reveals to you that their fence or shed is, for example, a foot on the neighbour’s land, “but that’s OK because the new owner can claim squatter’s rights over the land a year from now”, you know differently and can advise as much. This example is a classic boundary issue with the potential to lead to a boundary dispute or title insurance claim – both of which have the potential to negatively impact your seller and you.

It’s also an opportunity for you to offer your client the value of current knowledge and develop a smart survey strategy that proactively discloses the boundary issue, and discourages conditions and objections in the bidding process.

Dealing with Buyers

During due diligence it is not uncommon for a potential buyer to discover that the property in question is actually encroaching on neighbouring land. As with sellers, buyers often assume that this may offer them an opportunity to claim adverse possession over that land. This is unlikely to be the case and in fact is anything but an opportunity. Encroachments are boundary issues and have the potential to flare into boundary disputes, title insurance claims and even costly legal actions that your client should thank you for helping them avoid.

The Bottom Line

Adverse possession is a thing of the past. In the rare case where a property owner has the right to make a claim, the proof required to support the claim is challenging to produce. Adverse possession claims in residential GTA properties are now few and far between, and those that are made are most often an uphill battle for the claimant.

Whether representing buyer or seller, due diligence on a property with a survey plan will help you understand were the official boundaries are and begin to make sense of your client’s claims.

Resources

Protect Your Boundaries  –  Visit: www.protectyourboundaries.ca for online survey plans, tools and great information on property boundaries.

Mark Weisleder Toronto Star, Published on Fri Dec 13 2013  – You can still lose land through squatter’s rights.

Teranet  –  Land registry System in Ontario