Adverse Possession

"Owners!" echoed the squatter. "Can you tell me, stranger, where the law or the reason is to be found which says that one man shall have perhaps a county to his use, and another have to beg for earth to make his grave in?"

James Cooper in The Prairie Tale, 1827.

Use It Or Lose It

The most common word for what is understood by lawyers to be the law of adverse possession, is "squatter's rights" [don't miss the Legal Definition of Adverse Possession].

Image of hippies or hillbillies acquiring rights to land through long uninterrupted possession come to mind.

antiquity of time extract from Hobart's ReportsBut "squatter's rights" is no myth. For centuries, the courts of law have rung with these words of Justice Henry Hobart, circa 1620, in Slade v Drake (Hob. 295):

"Prescription and antiquity of time fortifies all ... titles, and supposeth the best beginning the law can give them."

Acquiring valid title to real property through adverse possession is possible in most Canadian common law provinces.

The fundamental rule is simple enough: if a person occupies land for the required period of time as set out in provincial limitation acts and, during that time, no legal action is taken to evict or in trespass, the ownership in the land goes from the legal owner to the squatter.

In his book, Principles of Property Law (Carswell, 1993, p. 95), law professor Bruce Ziff explains that:

"The penalty for non-use (of land) is tantamount to private expropriation by a squatter without compensation."

In some cases, as little as ten years of "actual, continuous, open, visible, notorious and exclusive" possession is required.

adverse possession squatters © Antonio Oquias - Fotolia.comIn other provinces, the statute of limitations says you have to enjoy adverse possession for 20 years before title can be claimed. Still others explicitly prohibit the acquisition of someone else's land by adverse possession, regardless of the period of continuous, open, visible, notorious or exclusive possession.

Some other points on adverse possession:

  • The squatter must have an intention to possess the land and not be merely passing through or using the property on an ad hoc or irregular basis.
  • Intermittent use, under certain circumstances, will not necessarily preclude a plea of continuous possession provided that there are acts of ownership.
  • It is said that the possession of the squatter must be open, notorious, adverse, exclusive, actual and continuous.
  • The possession must not be with the permission of the true owner (such as a claim by a custodian), otherwise it is not "adverse."
  • The adverse possessor need not be aware that he or she is adversely possessing someone else's land. It is enough that she be in possession and the true owner be out of possession (Lutz v. Kawa in the Case Book).
  • Walker v. Russell provides two important points. First, a trespasser can only adversely possess that part of the land actually occupied (as opposed to the whole tract under the title). Secondly, mere visits by the true owner to assert his or her ownership may not be enough to interrupt the adverse possession.
  • If one squatter leaves and is replaced by another, the second can have the first's time tacked on his time, provided there is continuity of possession (see Mulcahy v. Curramore in the Case Book).
  • Above and beyond adverse possession under statutes of limitations, the courts may retain a residual jurisdiction, notwithstanding some legal action taken within the limitation period, to allow vesting of property under equity principles of acquiescence or laches (see the Re: O'Reilly case in the Case Book).
  • The absence of possession during winter months does not appear to prevent adverse possession if to do so would have been impractical (Pipes v. Maskell (1992) 114 Nova Scotia Reports 271 and Beaulieu v. Gagnon (1982) New Brunswick Reports 433).

Each case is really judged on its merits as the following table shows, constructed from Canadian law reports. For a comprehensive list, readers are invited to consult the Canadian Abridgment under the title Limitation of Actions (Real Property).

Acts held to constitute adverse possession Acts which were refused as adverse possession claims
  • Erecting fences, maintaining a garden and grazing horses.
  • Building a house and barn.
  • Building a small fishing shack even though unoccupied during winter.
  • Regular use as parking space.
  • Operating a lumber camp or military base.
  • Seasonal blueberry picking
  • Seasonal use of land for pasturing cattle, including the building of a fence.
  • Cutting of the lawn.
  • Irregular use for duck hunting.
  • Parking space but where title holder also used for parking.
  • Intermittent cutting of wood.
  • Cultivation and crops on island during summer months only but no building.

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Published: Friday, October 20, 2006
Last updated: Monday, August 13, 2012
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