Adverse Possession in Alberta: Can You Claim Someone's Land?

Maybe you have mowed, fenced or gardened a strip of your neighbour's land for years and wonder whether it is now yours. Or maybe the reverse is true, and someone has been using part of your lot. Either way, you want to know where you stand.

Alberta uses a land titles (Torrens) system, where the register is meant to show who owns what. That system, together with recent changes, limits adverse possession sharply. Older articles you find online may describe a rule that no longer applies.

This article covers the law of Alberta.

What adverse possession means, and what Alberta says now

Adverse possession is the idea that someone who openly occupies another person's land for long enough can end up owning it. In Alberta, that is no longer how the law works. The Law of Property Act provides that no right or title in or to land may be acquired or deemed to be acquired by adverse possession.

The same section bars acquiring an implied licence by use or adverse possession, and bars acquiring easements or profits a prendre by prescription. In plain terms, long use alone does not create a right to the land, to a licence, or to an easement.

Older writing sometimes describes a route to title after many years of occupation. Treat that with caution, and confirm the current rules with a lawyer before relying on it.

Why the title system matters

A certificate of title is conclusive proof in all courts of ownership, with exceptions for fraud in which the owner participated or colluded and for land included by a wrong description of boundaries. The register is the main evidence of who owns the land, not how it has been used.

The Limitations Act adds to this. There is no limitation period for a claim for recovery of possession of real property, and a defendant does not have a defence based on adverse possession.

If you have been using a neighbour's land

If you built something or made improvements that turned out to cross the line, you are not necessarily without options. Under the Law of Property Act, for improvements made on the wrong land, the Court may order removal, an easement, acquisition of the land, or compensation by the registered owner for the added value, having regard to what is just in all the circumstances.

Where a building encroaches on adjoining land, the Court may order the encroachment removed or abandoned, an easement given, or the building owner to acquire the encroached land. The Court may also find that a claimant does not have to prove their belief that the land was their own, when it considers it just.

Transition rules exist as well. Remedial actions commenced under the former section 69 and not concluded before the 2022 amending Act came into force continue as if section 69.1 were not in force. If you had a case underway before that change, ask a lawyer how it is treated.

The most practical path is often a written agreement with your neighbour, such as an easement or a purchase of the strip, properly registered. A lawyer can explain how that works.

If someone is using your land

Because no right or title can be acquired by adverse possession, and because a defendant cannot use adverse possession as a defence to a claim for possession, long use by someone else does not take your land from you. That does not mean you should ignore it. Unaddressed encroachments can complicate a sale, a refinance or a relationship with your neighbour.

Consider these steps:

• Confirm the boundary with a current survey before you raise it.
• Talk to your neighbour and keep a written record of what is said.
• Decide whether you would prefer removal, a written permission, or a registered arrangement.
• Get legal advice before acting, since the Court's options depend on what is just in the circumstances.

Protecting an interest through a caveat

If you have a genuine agreement with the owner, such as an unregistered instrument, a caveat may be relevant. A person claiming to be interested in land for which a certificate of title has been issued may file a caveat with the Registrar, on grounds including a will, trust deed, instrument of transfer or an unregistered instrument.

While a caveat remains in force, an instrument registered after it is subject to the caveator's claim. A caveat does not by itself prohibit a sale, but a buyer takes subject to the caveator's claim. A caveat filed or continued without reasonable cause can make the person liable to compensate someone who suffers damage.

What to do next

• Get your certificate of title and a current survey.
• Collect photos, receipts and dates for any improvements.
• Note any conversations or permissions in writing.
• Do not assume long use gives ownership.
• Speak with a lawyer about an agreement, a court application or a caveat before you act.

Frequently asked questions