Adverse Possession in British Columbia: Does It Still Exist?

Perhaps you have mowed, fenced or gardened a strip of your neighbour's land for decades. Or perhaps your neighbour has been using part of your lot and you worry they will end up owning it.

In British Columbia, the answer is very different from the popular idea of squatters' rights. This article explains what the law now says, the narrow exceptions, and what options exist when a boundary has been blurred by long use.

This article covers the law of British Columbia.

Adverse possession: what the law now says

Adverse possession is the idea that someone who openly occupies another person's land for long enough can become its owner. In this province that route has been closed. Except as specifically provided by the Limitation Act or any other Act, no right or title in or to land may be acquired by adverse possession.

There is a narrow saving. The Limitation Act does not interfere with any right or title to land acquired by adverse possession before July 1, 1975.

For land under the Land Title Act, after an indefeasible title is registered, a title adverse to or in derogation of the registered owner's title is not acquired by length of possession. An application founded in whole or in part on adverse possession must not be accepted by the registrar unless the Act permits it and it is supported by a declaration of title under the Land Title Inquiry Act. Land that is not registered under the Land Title Act can raise different questions, which a lawyer can confirm.

Long use does not create an easement either

Some people accept that they cannot own the strip but hope that years of use give them a right to keep using it. That also fails. All existing methods of acquiring a right in or over land by prescription are abolished, and so are the common law doctrine of prescription and the doctrine of the lost modern grant, so long use of a neighbour's strip does not create a prescriptive easement.

How registered title protects the owner

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. An action of ejectment or other action for recovery of land with registered indefeasible title must not be commenced or maintained against the registered owner except in the listed cases.

The listed exceptions are limited. They include the following:

• Land improperly included in a title by wrong description of boundaries or parcels.
• Fraud, including forgery, in which the registered owner participated in any degree.
• Two or more indefeasible titles registered for the same land, where the owner claiming under the first-registered instrument prevails.
• A mortgagee or encumbrancee where the mortgagor or encumbrancer is in default, or a lessor where the lessee is in default.
• A right of expropriation or an escheat under an Act, which registration does not override.

Separately, the Limitation Act 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. In practical terms, an owner's silence for many years does not hand over title.

What you can do if a fence or building crosses the line

If a survey shows a building encroaches on adjoining land, or a fence is improperly placed so that it encloses adjoining land, the Supreme Court may on application declare an easement for a set period on payment of compensation, 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. This is the main statutory route, and survey evidence is the foundation of the claim.

A tenant or other person with a right to possession can also apply or be affected. A claim to remove an encroachment or vest title is for the Supreme Court, not the Civil Resolution Tribunal. Neighbours can also settle the matter by agreement, such as a boundary line adjustment or a written licence, ideally with legal advice.

What to do next

• Get a current title search for both properties.
• Order a survey to show where the boundary actually runs.
• Keep photos, dates and any past correspondence about the strip.
• Do not assume years of use give you ownership or an easement.
• If you own the land, do not ignore an encroachment, and raise it early in writing.
• Speak with a lawyer before building, selling or signing anything about the disputed area.

Frequently asked questions