Adverse Possession of Rural Land in Ontario: Possessory Title

On many rural properties, fences, lanes and fields have drifted from the legal boundary over decades. You may have farmed or mowed a strip of a neighbour's land for years, or a neighbour may have been using part of yours. The question people then ask is whether long use can turn into ownership.

In Ontario, the answer depends heavily on how the land is registered. This article explains the basics of possessory claims under the Real Property Limitations Act and the Land Titles Act, the position on easements, and the practical steps worth taking. It is general information; these cases turn on their facts and usually need a lawyer.

The ten-year rule

Section 4 of the Real Property Limitations Act says no one may bring an action to recover land except within ten years after the right first accrued. Under section 15, when that period expires the former owner's right and title are extinguished, not merely the right to sue. This is the basis for adverse possession claims on Registry system land, as the next section explains.

There is an exception. These provisions do not apply to waste or vacant Crown land. So long use of Crown land generally does not work the same way. When the timing starts, and whether the use qualifies, are fact-heavy questions that a court decides.

Registry system versus land titles

Ontario land is registered in one of two systems. In the older Registry system, ownership rests on a chain of recorded documents. In land titles, the register itself is the authority. That difference matters a great deal here.

Section 51(1) of the Land Titles Act, headed No title by adverse possession, says that despite the Real Property Limitations Act or any other Act, no title or interest in land registered under the Land Titles Act that is adverse to the registered owner can be acquired by length of possession or prescription. In practice, possessory title claims work mainly for land in the Registry system, or where a claim was already complete before the land came under land titles.

To find out which system applies, a lawyer can search the parcel register. Many rural parcels in Ontario have been converted to land titles, so do not assume.

Other exceptions and possessory titles

Land titles has more nuance. Registered land is subject to overriding interests unless the register says otherwise, and these include a title or lien acquired by possession or improvements by an owner of adjoining land. A parcel is not subject to that paragraph if a notice of first registration was properly served with an accurate description and no objection was filed.

Where a first owner was registered with only a possessory title, registration does not affect rights adverse to the owner's title, and the owner may apply to convert to absolute or qualified title after ten years. These situations are technical, and the answer turns on the history of your parcel.

Rights of way and easements

Sometimes the issue is not owning land but using a lane or path across a neighbour's property. Under section 31 of the Real Property Limitations Act, a claim to a right of way or other easement is not defeated merely by showing it began before a 20-year period, and after 40 years of enjoyment the right is treated as absolute unless granted by express written consent. Under section 32, an interruption counts only if submitted to or acquiesced in for one year after notice.

Prescriptive easements apply to Registry-system land, and section 51 of the Land Titles Act bars prescription against registered land. A right of way is safest when it is a registered easement or deeded right of way, and a prescriptive claim is generally not something to rely on without a court declaration. Registering a transfer of easement involves the servient land, which the grantor must own, and the easement is entered on both parcels. Registration practice has changed since that guidance, so confirm current procedures.

If you are the user or the owner: what to do next

Fence-viewers under the Line Fences Act cannot decide where the boundary is, and the Act cannot be used for fences that are not on a boundary line. Boundary disputes need legal advice and a survey.

• Get a current parcel register to see whether the land is Registry or land titles.
• Order a survey by an Ontario land surveyor to show where the boundary actually is.
• Write down how long and in what way the land has been used, and who has used it.
• Collect old photos, tax records, fence invoices and any letters between neighbours.
• If you own the land and someone is using it, get advice promptly, because the ten-year period matters.
• Do not sign anything granting or acknowledging rights until you have had advice.
• Ask a real estate lawyer whether a court application is realistic for your facts.

Frequently asked questions