Adverse possession of land is possession of land similar to a squatter’s right to land. It gives to a person ownership of a part of another’s lands because of the way that person has used the lands for a period of time. Fenced lands relating to a surveyed property line are an example. If your fence does not run along the surveyed property line but runs over the neighbour’s lands to demarcate the property line, you may have possessory title, or ownership, to that part of the neighbour’s lands you are using.
A person claiming adverse possession is essentially a trespasser. To determine possession of the lands in court, a claimant must meet a threefold test: (1) actual possession of the disputed lands for a period of ten years, (2) the intention of excluding the true owner from possession, and (3) the actual exclusion of the true owner from possession throughout the ten year period. The test is a question of fact and the facts relied upon must be considered relative to the nature of the lands and the particular use and enjoyment of it being made.
A true owner defending an adverse claim may argue that the possession was not adverse because the claimant acknowledged the right of the true owner to the disputed lands. As well, an adverse claim may be defeated if there was a mutual mistake as to title or boundary lines, or if there was an honestly held belief that the claimant was the rightful owner of the lands. If you think that your rights as true owner may be at risk, you should consider instructing your lawyer to send a demand letter to the person occupying your lands to assert your legal rights to it. You should also have your lawyer check which registration system your land is registered in. Adverse possession claims accrue under the land registration system established under the Registry Act. However, most lands in the County of Haliburton have now been converted from the registry system to the land registration system established under the Land Titles Act. When that takes place, the clock stops on the ten year period needed to establish adverse possession and the conversion to land titles extinguishes any further adverse possession claim because of this.
