Can a Neighbour Claim Your Land Through Adverse Possession in BC?

You may have noticed that a neighbour has fenced in a strip of your yard, parked on it, or used a path across it for many years. Or someone may have moved onto land you own and stayed. A common worry is that enough time passing will hand them ownership.

In British Columbia the answer is much more reassuring for registered owners than many people expect. This article explains the main rules, the narrow exceptions, and how boundary problems are actually resolved.

This article covers the law of British Columbia.

What adverse possession used to mean, and what it means now

Adverse possession is the idea that someone who openly occupies land that belongs to another, for long enough, can end up with a right to it. People often call it squatters' rights.

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. The Act does not interfere with any right or title to land acquired by adverse possession before July 1, 1975. That saving is narrow and depends on the facts, so a lawyer should look at any claim that relies on it.

Registered land: time in possession does not create title

Whether the Land Title Act applies to your land depends on how the land is registered, so it is worth confirming that with a lawyer. 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.

Adverse possession may still arise for land that is not registered under the Land Title Act.

Long use of a strip or path does not create an easement

Some people argue that years of using a neighbour's driveway edge or path creates a right to keep using it. In British Columbia, 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.

• Long use of a neighbour's strip does not create a prescriptive easement.
• Permission, a written agreement or a registered easement is the safer way to protect shared access.
• If you allow a neighbour to use part of your land, putting the terms in writing avoids later confusion.

Your own right to recover land

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.

There are limits on actions to recover land with registered indefeasible title. An ejectment or other recovery action must not be started or maintained against the registered owner except in listed cases. Those cases include land improperly included in a title by wrong description of boundaries or parcels, and two or more indefeasible titles registered for the same land. A person deprived of land through fraud, including forgery, in which the registered owner participated can also challenge the title. A mortgagee or lessor is also not blocked where the mortgagor or lessee is in default.

Fences and buildings over the boundary

When a building crosses a boundary or a fence is improperly placed so that it encloses adjoining land, the Property Law Act, s. 36 is the main statutory route, and the court chooses among an easement, a transfer of title with compensation, or removal. Where a survey shows the encroachment, the Supreme Court may on application declare an easement for a period it sets on payment of compensation, vest title to the encroached or enclosed land in the encroaching owner on payment of compensation, or order removal of the encroachment or fence.

The Civil Resolution Tribunal cannot hear claims to remove an encroachment or vest title under Property Law Act s. 36; those are for the Supreme Court.

What to do next

• Get a copy of your title and a current survey of the boundaries.
• Note when the fence, structure or use began and who is responsible.
• Do not assume a neighbour's long use gives them rights, and do not assume yours gives you any.
• Put any permission or boundary agreement in writing.
• Speak with a lawyer before building, removing a fence or signing anything about the disputed area.

Frequently asked questions