February 10, 2023
Don’t take adverse possession off life support yet.
THE ISSUE
Most lawyers in Ontario assumed that adverse possession – the ability to obtain the rights of an owner of land by possessing it as if you were the owner – would have vanished by 2022. Ontario has transitioned almost all property into the Land Titles System, which does not allow for adverse possession.
But here’s the trick – rights of adverse possession that existed prior to conversion survive conversion. There is no requirement that the claimant file anything to maintain that status as long as they retain possession. Over time, they have become more rare, but adverse possession claims may still come out of the woodwork indefinitely.
How does this happen?
THE CASE
A recent illustration is found in 185 King Developments Inc. v Tewson. The applicant applied for a declaration that it owns a thin strip of laneway that runs behind 185 King Street East, Toronto, just wide enough for a car or a horse and buggy. Title to the laneway remains registered in the name of John Henry Boulton who bought it in 1824. He died in 1870.
The applicant is a developer who had bought the rest of the block, except the laneway.
The respondents were mainly the great-great-great grandchildren of John Henry Boulton.
The judge was Myers J., well known for calling a spade a spade. He stated simply that: “None of the respondents has proven that he or she has any legal interest in the land.”
Though John Henry Boulton’s will was in evidence, it did not mention the laneway. None of the wills of his heirs or descendants was in evidence. Therefore, the laneway might have been gifted by will to anyone. Justice Myers gives the examples of gifts to charity or to a relative by marriage.
Although deeds to 183 King Street East and 181 King Street East refer to rights of way over the laneway, there was no evidence of a grant of easement by John Henry Boulton.
Justice Myers sidesteps this confusion by looking at the actual use of the laneway since 1941, for which there was a living witness, Lewis Mitz, the son of former owner of 185 King Street West, who later became an owner with other family members. The witness testified that from at least 1941, his father parked a car in the laneway. Once his father died, the witness took over the building, and parked there. No one else objected. In the early 1970s, the Mitz’ erected a chain across the laneway to prevent access without their permission.
These are classic signs of adverse possession.
Lewis Mitz’ evidence was corroborated by the prior owner of 181 and 183, who recalled the Mitz’ parking there and the chain which denied him access.
This evidence satisfied Justice Myers that the Mitz family had the necessary ten years of open, exclusive, continuous and peaceful possession and use of the laneway to claim adverse possession.
This decision illustrates not only that adverse possession is alive and well in Ontario in 2022, but it also demonstrates the value of the applicant’s lawyer making sure that the judge was focused on the correct issues, and that the applicant supplied the court with appropriate evidence to establish the claim. This differed from the hearsay and double hearsay which the respondents attempted to use to confuse the issue.
Possibly the respondents will appeal. Even if they do, Justice Myers has written a clear, concise, and evidence focused judgment – just the sort the Court of Appeal is likely to affirm. Even if the appeal court overturns, it would be unlikely to drive a stake through the heart of adverse possession.
WHAT WEILERS LAW CAN DO FOR YOU
Part of our proud tradition is understanding not only the basics of conveyancing but also real property law in depth. We understand adverse possession. Clients have hired us for decades to sort out title problems whether by negotiation or litigation.
We bring our progressive approach to real property litigation. Our real estate lawyers work closely as resources with our litigation team in property cases. Our litigation team has the experience and expertise to know what evidence is needed to prove the claim, and what evidence (such as hearsay) is irrelevant or inadmissible.
If you are on either side of a real property title issue, we may be the right lawyers for you. Give us a call and find out.