September 2, 2025
When almost all properties in Ontario were transitioned into the Land Titles system, we were told that claims for adverse possession would gradually vanish. The Land Titles system guarantees that the paper title is the real title (subject to a few exceptions) and bans title by adverse possession.
This has not proven to be true. We continue to see these disputes.
THE CASE
Harmur Investments Ltd. v. Pearce is a recent example which illustrates how difficult it is to succeed in these claims, but how important they can be.
First, a few principles are set out:
- Adverse possession may only arise while property is subject to the Registry Act System
- Adverse possession is a defence to an action by the registered owner for possession of the property
- For this reason, 10 years uninterrupted adverse possession must be proved
- The claimant and their predecessors must have had actual possession of the land for the ten years
- That possession must be with the intention of excluding the true owner
- The true owner must be out of possession for the ten years.
- Adversity requires there not to be permission from the owner.
It is surprising to clients how often a claim for the right to cross their neighbour’s land is defeated by the use being on consent, since in these cases, the dispute only arises when the consent is withdrawn.
One of the tricky things in the Harmur case was the involvement of two parcels of land over which adverse possession was claimed. This led to the judge carefully examining all the evidence separately for each parcel. They found that adverse possession was established for one parcel, not the other.
This included the weighing of conflicting evidence.
The presence of a fence , with no gate, was found not to show the necessary intention to exclude the true owner. The true owner used that parcel to maintain privacy of their property, and nothing their neighbours did prevented that.
This parcel was perhaps the more important parcel, as it provided the road access to the property.
Adverse possession was proven over the parcel including a boathouse.
The judgment does not reflect how pleased or displeased the parties were by this divided result.
TAKEAWAYS
- Road access is An important issue for rural and cottage properties
- The best approach is to resolve the issues before buying the property
- If you do not, and a dispute later arises, it is often difficult to find evidence going back many years to establish adverse possession
- Obtaining an order for adverse possession is difficult
WHAT WEILERS LLP CAN DO TO HELP YOU
The real estate team at Weilers LLP have experience in dealing with cottage and rural properties and will take steps to assist you with access. Not every real estate lawyer has this expertise.
If an application to court is necessary, we have the experience to advocate on your behalf.
Give us a call and see if we are the right lawyers for you.