Can a Person Lose Title to Property By Ignoring the Use of the Property By Another Person?

The Principle of Adverse Possession, Notoriously Known As Squatter's Rights, Involves the Transfer of Property Ownership Rights to Long-Term Users of the Property.

Understanding the Principles of Adverse Possession As Are Commonly Referred to As Squatter Rights

Adverse Possession Involves Property Issues Commonly Referred to As Squatter Rights When a person owns property and appears in law to disregard the property by ignoring the long-term trespass upon the property via the continuous use or occupancy of the property by another person, whom is often referred to as a squatter, the owner of the property may lose rights to the property and the title of the may legally become transferrable to the squatting person.

The Law

As well explained iwithin the case law decision shown below, when seeking to establish a possessory title of property, an applicant to the court, being the squatter, must be able to show an actual possession of the property and that possession occurred over time period required by law.  Specifcally, the case law states:


[31]  To establish a possessory title, the applicants must demonstrate that they have had actual possession of the subject property for the requisite time. Their acts of possession must have been open, notorious, peaceful, adverse, exclusive, actual, and continuous having regard to the nature of the disputed property: Teis v. Ancaster (Town), 1997 ONCA 1688, at para. 13.

[32]  In the assessment of whether conduct amounts to possession, context is very important. In Mueller v. Lee, 2007 CarswellOnt 4194, [2007] O.J. No. 2543, 158 A.C.W.S. (3d) 827, 59 R.P.R. (4th) 199, at para. 15, Perrell J. noted that possession of property can be asserted in a number of ways:

What is sufficient to establish actual possession will vary depending upon the nature of the property and the natural uses to which it can be put: Walker v. Russell (1965), 1965 CanLII 250 (ON SC), [1966] 1 O.R. 197 (Ont. H.C.); Laing v. Moran, 1951 CanLII 74 (ON CA), [1952] O.R. 215 (Ont. C.A.). Professor Bruce Ziff in his text Principles of Property Law (3rd ed.) (Toronto: Carswell, 2000) states at p.126:

In general, the squatter must use the property as the owner might. Looked at another way, the adverse use must be such as to put the paper owner on notice that a cause of action has arisen. After all, the doctrine is based on the failure to take action within the limitation period, and therefore time should not run unless it is fair to hold a delay against the owner. This is reflected in the requirement that the occupation must be open and notorious, and not clandestine. The adverse possessor must send out a clarion call to the owner, who, if listening, should realize that something is awry. If the adverse possession continues, the owner must commence an action within the limitation period to avoid being statute barred.

See also: Aragon (Wellesley) Development (Ontario) Corp. v. Piller Investments Ltd., 2018 ONSC 4607, at para. 130.

[33]  The importance of context in the assessment of actual possession was noted by the Privy Council in Kirby v. Cowderoy, 1912 CanLII 366 (UK JCPC), [1912] A.C. 599, 5 D.L.R. 675, 2 W.W.R. 723, cited in Laing v. Moran, 1951 CanLII 74 (ON CA), [1952] O.R. 215, at para. 37:

. . . the character and value of the property, the suitable and natural mode of using it, the course of conduct which the proprietor might reasonably be expected to follow with a due regard to his own interests; all these things, greatly varying as they must under various conditions, are to be taken into account in determining the sufficiency of a possession.

[34]  In Walker v. Russell (1965), 1965 CanLII 250 (ON SC), [1966] 1 O.R. 197 (Ont.H.C.), Gale, C.J. made the same point:

The sufficiency and character of the possession necessary to pass title must be considered and tested in the light of the circumstances, which surround each particular case. Acts which amount to possession in one case may be wholly inadequate to establish it in another. Matters such as the nature of the property, the appropriate and natural uses to which it can be put, the course of conduct which the owner might reasonably be expected to adopt with a due regard to his own interests, are all matters to be considered in evaluating the adverse possession which has been proved to have been exercised by a trespasser or successive trespassers.

[35]  Property can be possessed without being always occupied. Possession does not require continuous occupation. The common law recognizes that a person may possess land even while using it intermittently or sporadically: Nelson (City) v. Mowatt, 2017 SCC 8, [2017] 1 S.C.R. 138, at para. 31; R. v. Marshall, 2005 SCC 43, [2005] 2 S.C.R. 220 (S.C.C.), at para. 54.

[36]  It is not necessary, in order to establish actual possession, that the land in question be surrounded by a fence or otherwise enclosed. Enclosure is strong evidence of adverse possession, but it is not required in order to establish adverse possession. See: Laing v. Moran, at paras. 31-35.

As per the case law shown above, the criteria that must be met before the owner may lose an adverse possession case, and thus lose the rights to and title of a property, are numerous.  Accordingly, whether a person is the owner or a person is the squatter, adverse possession principles and requirements should be carefully reviewed with advice obtained from a qualified legal practitioner.

Summary Comment

In an adverse possession case, meaning a squatter rights case, the squatter must show a continuous use of the property to which the squatter seeks transfer of title.  What the law will deem as continuous as well as what the law will deem as use, will various based upon the nature of the specific property involved as well as the manner in which the property was used by the squatter.

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