Adverse Possession in BC: Can You Claim Land by Occupying It?

Maybe you have mowed, gardened or fenced a strip of your neighbour's land for 20 years and now wonder whether it has become yours. In some places that idea has a name, adverse possession, and it works in some legal systems. British Columbia is much stricter.

This article explains why long use of someone else's registered land almost never creates ownership here, the narrow exceptions, and what options remain if you are on either side of the strip. Every situation turns on its facts, so treat this as general information.

This article covers the law of British Columbia.

The short answer: not on registered land

Under the Limitation Act, except as specifically provided by that or any other Act, no right or title in or to land may be acquired by adverse possession. That is the starting rule, and it is a strong one.

The Land Title Act adds a second layer. After an indefeasible title is registered, a title adverse to the registered owner's title is not acquired by length of possession. In plain words, the years you spend using a neighbour's registered land do not build up into a claim against their title.

An indefeasible title is conclusive evidence that the registered owner is entitled to an estate in fee simple to the described land, subject to listed exceptions such as charges and notices on title and a right of expropriation under an Act. That is why the usual answer to this question is no.

Why long use does not create a right either

People sometimes ask about a lesser right: not ownership, but a right to keep using a path or strip. The Land Title Act abolished all existing methods of acquiring a right in or over land by prescription, along with the common law doctrine of prescription and the doctrine of the lost modern grant. Long use of a neighbour's strip therefore does not create a prescriptive easement.

A registrar will also not accept an application founded in whole or in part on adverse possession unless the Act permits it and it is supported by a declaration of title under the Land Title Inquiry Act. That is not a route most homeowners can expect to use.

Narrow situations that can be different

• Rights acquired by adverse possession before July 1, 1975 are not interfered with by the Limitation Act.
• The general rule applies except as specifically provided by the Limitation Act or any other Act, so an unusual statutory exception could matter.
• Land that is not registered in the land title system may be treated differently, which is a question for a lawyer who can review the actual title history.

If you think one of these applies, get advice before relying on it. These situations are uncommon and depend heavily on documents and dates.

What remedies may remain for the person using the strip

If a survey shows that a building encroaches on adjoining land, or that a fence is improperly placed so that it encloses adjoining land, the Supreme Court may act under the Property Law Act. On application, it may declare an easement for a period it sets, on payment of the compensation it determines; vest title to the encroached or enclosed land in the encroaching owner, on payment of compensation; or order the owner to remove the encroachment or fence.

The trigger is a survey showing the encroachment, so survey evidence is the foundation of the claim. For this purpose, an owner includes a person with an interest in or right to possession of the land. Claims of this kind belong in the Supreme Court, not the Civil Resolution Tribunal.

Notice what this is: a discretionary remedy that usually involves paying compensation, not a free transfer after enough years. The court chooses among the options.

If you are the registered owner

An action of ejectment or other action to recover land with registered indefeasible title must not be commenced or maintained against the registered owner except in the listed cases. Those cases include a person deprived of land improperly included in a title by wrong description of boundaries or parcels, and an action where two or more indefeasible titles were registered for the same land.

The Limitation Act also does not apply to a claim for possession of land by a person who has been dispossessed in circumstances amounting to trespass, so the 2-year period does not bar an owner's claim to recover possession of land. Even so, do not assume you can wait. A neighbour's use can raise other issues, and evidence fades.

What to do next

• Pull your current title search and any survey or plan, and compare them with what is on the ground.
• Commission a current survey if you do not have one, because a survey is the foundation for any encroachment claim.
• Do not assume that years of use have given you ownership or an easement.
• If you are the owner, raise the issue in writing early and keep records of your communications.
• Speak with a BC real estate lawyer before building, selling or starting a court case.

Frequently asked questions