September 8, 2023
Is adverse possession available to extinguish the title of a municipality in favour of someone who claims adverse possession?
The answer, says the Ontario Court of Appeal, is “sometimes”.
First, almost all land in Ontario, and especially in Thunder Bay and Northwestern Ontario, is in the Land Titles registration system. Adverse possession cannot extinguish title under that system, which is a title assurance system – except in very limited situations of fraud; the registered owner is the true owner (assuming that we are taking “owner” in a legal sense of “able to sell or mortgage property”, not a trusts sense of beneficial ownership). Adverse possession is not possible when land is in the Land Titles system.
However, a lot of land was registered under the Registry system until converted to Land Titles. Under the registry system, the register is the notice of claims to title (usually through a deed) but is not a guarantee of the title- lawyers still had to review documents back 40 years to establish a “chain of title”. That chain, however, could be broken by an unregistered interest acquired through adverse possession.
If adverse possessory title existed when the property was converted to Land Titles, it remained lurking behind the register because conversion to Land Titles is generally “qualified title”- that is, subject to claims that existed on the date of conversion.
Second, the test for adverse possession is hard to meet in any event, as we have discussed in prior articles. But as those articles point out, adverse possession is not dead in Ontario.
Third, there has long been a belief that municipal lands, or almost all municipal lands, were protected by what is now Section 16 of the Real Property Limitations Act, which states that:
Nothing in sections 1 to 15 [establishing adverse possession] applies to any waste or vacant land of the Crown, whether surveyed or not, nor to lands included in any road allowance heretofore or hereafter surveyed and laid out or to any lands reserved or set apart or laid out as a public highway where the freehold in any such road allowance or highway is vested in the Crown or in a municipal corporation, commission or other public body, but nothing in this section shall be deemed to affect or prejudice any right, title or interest acquired by any person before the 13th day of June, 1922. [Explanatory interjection added.]
Despite the clear wording of this section prohibiting the extinguishing of adverse possession affecting municipal highways (roads), a series of Superior Court decisions up to the Superior Court decision in Kosicki v. Toronto (City) had developed the “Public Benefit Test”, which went beyond the Act to protect municipal lands, such as parkland, held or used for a public benefit. This protection would extend to almost all municipal lands, except perhaps very limited wastelands.
In Kosiki, the Court of Appeal says that the Public Benefit Test is NOT the law and that the Superior Court was wrong to extend the prohibition on adverse possession beyond highways as described in section 16. The appeal court applied the doctrine of paramountcy, which, in summary, means that if the legislature passes a law governing a subject, the common law, as developed by courts, has no business in that subject matter. The adjacent landowners, the Kosikis, were successful in proving adverse possession.
- Adverse possession may be possible against municipal lands which are not highways.
- This will be limited for the reasons described above.
- Because adverse possession claims are only historical, little can be done about the possibility of future claims coming forward.
- The best defence is good record keeping to preserve evidence that the possession was on consent (therefore not adverse), was not continuous, or did not exclude the rights of the municipality. Very few cases have facts as solid for the claimants as Kosiki, but frequently, documentary evidence is the only evidence.
WHAT WEILERS LLP CAN DO TO HELP YOU
Fortunately, adverse possession claims are rare, but Weilers LLP has the experience and expertise to advise both landowners and municipalities about their rights. If a court proceeding is required, we will tirelessly advocate for the best result for our client. If you have an adverse possession issue or any other municipal land issue, please give us a call to see if we are the right lawyers for you.