Pushing your boundaries

January 18, 2012

Law Day

Last week, I posted about the two types of property registration systems in Ontario. One element of the Land Titles system is that it generally cancels out any possibility of adverse possession, or squatters’ rights, so this week I’m going to delve a little further into what exactly adverse possession is.

If you live in an urban subdivision built in the past ten or 15 years, chances are the borders of your property are exactly where they appear to be – right down the fence line and to the edge of the street. There is an extremely low likelihood that part of your deck is on the neighbour’s property, or part of their fence is on yours. This can be drastically different, however, when it comes to older properties or properties in more rural areas.

Adverse possession occurs when the person encroaching onto the neighbouring land knows he or she is doing so, and does so without permission. An example would be if you built a garage over the edge of your property knowing that it was not your property. After ten years, if the adverse possession continues, you can bring a court application claiming the extra strip of property as your own. In order to be adverse, the use of the property must be open, continual (which includes seasonal use, where relevant), notorious and exclusive to the actual owner. It must also be without permission; if at nine years and 11 months the owner stops you and says that you have permission to be there, then the adverse possession claim is blocked.

A further wrinkle to possible adverse possession claims in Ontario is the land titles system, because properties in land titles are exempt from adverse possession claims unless the adverse possession started before the property went into land titles. If you want to claim that extra strip, you have to prove the date that your adverse possession started was before the conversion out of land registry.

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About Cesia

Cesia is a real estate lawyer at Wall-Armstrong and Green, a boutique law firm in Barrie focusing on real estate and estates. When she’s not online, she can usually be found in her garden.

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