Adverse possession

Ontario: co-owner dispossession under the RPLA

 

In Billimoria v. Mistry, the court founds that Real Property Limitation Act‘s adverse possession provisions apply to situations of co-ownership.  One co-owner may claim under the RPLA that another co-owner has been dispossessed of the property and is precluded from a claim to it because his or her rights have been extinguished:

[63]           Section 4 of the RPLA establishes a 10-year limitation period for a dispossessed owner to bring an action to recover possession, once the right to bring the action has accrued.  Section 5 is concerned with situations in which the holder of the paper title and has been dispossessed or has discontinued possession.  It provides that the right to bring an action begins at the time of dispossession or discontinuance of possession. Section 15 provides that if the dispossessed owner has not attempted to recover the land within ten years after the right to bring the action accrued, the right and title of the owner of the land is extinguished: Osman v. Heath, 2016 ONSC 4812 at para. 49.

[64]           The principals respecting adverse possession are well-established in the jurisprudence.   In Nelson (City) v. Mowatt, 2017 SCC 8 at para. 17, Brown J. explained that adverse possession is the common law doctrine “by which the right of a prior possessor off land, typically the holder of the registered title and therefore sometimes referred to as the “true owner”, may be displaced by a trespasser whose possession of the land goes unchallenged for a prescribed period of time”.

[65]           This case here does not involve a trespasser.  It involves one co-owner and possessor of the land who seeks to displace ownership of another co-owner who is said to have been dispossessed of the property.  I do not accept the defendants’ position that the RPLA is inapplicable to situations of co-ownership.  I see no legal impediment to one co-owner making a claim, under this legislation, that his or her co-owner has been dispossessed of the property for ten years and, as a result, is precluded from making a claim to it because his or her rights over the land were extinguished.

Ontario: Court of Appeal on adverse possession and prescriptive easements

The Court of Appeal decision in Majewsky v. Veveris restates two real property principles:

  1. Adverse passion can be established with respect to lands registered under the Land Titles Act by possession meeting the necessary requirements during any continuous ten-year period prior to registration in Land Titles.
  2. To acquire a prescriptive easement whether under the doctrine of lost modern grant or by prescription under the RPLA, the claimant must demonstrate use that is continuous, uninterrupted, open, and peaceful for a period of 20 years.