Adverse Possession in Ontario: Claiming Land You Have Used

Perhaps you have mowed, fenced or gardened a strip of your neighbour's land for years, and everyone treated it as yours. Now you wonder whether time alone has made it yours.

In Ontario the answer depends mainly on which land registration system covers the property. This article explains the difference in plain terms and what to do before you count on it.

What adverse possession means

Adverse possession is the idea that someone who openly uses land that belongs to another, without permission and for long enough, may end up with a claim to it. It usually comes up with a fence in the wrong place, a driveway that crosses a line or a garden that spread over a boundary.

It is not a shortcut. Use with the owner's permission is a different thing, and the facts of the use matter. A court looks at what actually happened on the land.

Land Titles land: new claims are barred

Under Land Titles Act s. 51(1), no title or interest in land registered under the Land Titles Act can be acquired against the registered owner by any length of possession or by prescription, so new adverse possession claims are barred.

There is an exception. Land Titles Act s. 44(1) para. 3 keeps title acquired by possession by an adjoining owner as a liability on registered land unless notice was served at first registration. Whether that applies depends on the history of the particular parcel.

Registry system land: the ten-year rule

For land under the older Registry system, and for possession rights that existed before the land came under land titles, the Real Property Limitations Act applies. Under s. 4 and s. 15, an action to recover land must be brought within ten years, after which the owner's title is extinguished.

Ten years of use does not automatically prove a claim. Whether the ten-year period has run on a particular parcel depends on the facts, so it is worth confirming with a lawyer.

Easements are a separate question

If you have used a path or driveway rather than occupied the land, the rules may be different. A right of way or similar easement enjoyed without interruption for 20 years generally cannot be defeated just by showing it started earlier, and 40 years makes it absolute unless it was enjoyed by written consent.

That can mean you gain a right to use the strip without gaining ownership of it. Knowing which of the two you may have is part of the legal advice you need.

Errors, fraud and title insurance

Separate from possession claims, the Land Titles Act lets the Director of Titles or a court rectify the register where a fraudulent instrument was registered on or after October 19, 2006, where a registered instrument would be absolutely void if unregistered, or to correct an error that would deprive someone of land they legally possess.

A person wrongfully deprived of land through fraud or registration error may apply for compensation to the Director of Titles within six years of suffering the loss, and a Hearings Officer decides eligibility and amount.

Title insurance is optional in Ontario. For a one-time premium it may cover unknown title defects, encroachments, survey and public-record errors and title fraud, but it generally excludes defects the buyer knew about. How any of these protections applies to a boundary dispute depends on the facts, so it is worth confirming with a lawyer.

What to do next

• Get a current parcel register through OnLand, which anyone can search for a fee.
• Ask a lawyer which system covers the land and what it means for your claim.
• Gather proof of how long and how openly you used the strip, such as photos, receipts for fences and statements from neighbours.
• Do not move a fence or build on the strip until you have advice.
• If the neighbour is selling, raise the issue early, because buyers and lenders look closely at boundaries.
• Consider whether a negotiated agreement with the neighbour is a better route than a court case.

Frequently asked questions