Possessory Title and Land Titles Property in Ontario

You may have used a strip of land beside your home for decades. You mowed it, gardened it, maybe built on it. Now you are wondering whether that long use gives you any right to it, especially if your property is registered under Land Titles.

In Ontario, Land Titles is designed to give certainty to what the register shows. That makes long use a much weaker basis for a claim than many people expect. This article explains how, and where the exceptions are.

How Land Titles limits possession claims

For land registered under the Land Titles Act, no title, right or interest that is adverse to the registered owner can be acquired by any length of possession or by prescription. This applies despite the Real Property Limitations Act.

By contrast, outside Land Titles, the Real Property Limitations Act can extinguish the title of an owner who waits more than ten years to recover land after being dispossessed. Land Titles removes that route, so adverse possession and prescriptive easements cannot start running once land is in Land Titles.

If you have used a strip for a long time, long use by itself will generally not make it yours once the neighbouring land is in Land Titles. That surprises many people, so it is worth confirming how both parcels are registered.

What possessory title means for the exception

The Land Titles Act contains a narrow exception. The bar does not prejudice an adverse claim based on possession by a person who was in possession when the first owner was registered with a possessory title only. In other words, the exception looks back to the moment of first registration.

Whether your parcel was registered with a possessory title only, and who was in possession at that time, are questions answered by the registration history. A lawyer can review the parcel register and related records. Claims that were already complete before land moved into Land Titles are also fact-specific.

Easements and rights that already exist

Land Titles does not erase every right affecting a property. Unless the register says otherwise, all registered land is subject to existing rights of way, watercourses, rights of water and other easements. An easement is registered on title to the servient land, which is the land it crosses, and may also be registered on title to the dominant land, which is the land that benefits.

For land that is not in Land Titles, a claim to a right of way cannot be defeated if the right was used without interruption for twenty years, and after forty years of such use it is absolute. That 40-year right does not arise where use was by consent or agreement expressly given by deed or writing. Land Titles bars new claims of this type on registered land.

Confirming a doubtful boundary

Sometimes the real question is where the boundary is, not whether anyone can claim past it. Under the Boundaries Act, where there is doubt about the true location on the ground of a parcel's boundary, an application may be made to the Director of Titles to confirm it. An owner of an interest in the parcel may apply, or a surveyor may apply with that owner's consent.

• The application must include an up-to-date plan of survey signed by a surveyor and a copy of the survey's field notes.
• The Director gives notice, and anyone objecting must deliver a written objection within the time set in the notice.
• If an objection is received, the Director must offer a hearing. If there is none, the Director may confirm the boundary without a hearing.
• A party aggrieved by the order may appeal to the Divisional Court, filing and serving within thirty days after the order is mailed.
• Once confirmed and certified, the boundary is deemed to be the true boundary of the parcel despite any other Act.

Preparing plans that determine or establish a boundary is cadastral surveying, which requires a licence, or work under the supervision of a licensed member. The Line Fences Act process does not decide where the property line is.

What to do next

• Find out how your parcel and your neighbour's parcel are registered.
• Get a current survey to see where the boundary sits against the strip.
• Gather evidence of how long and how the strip has been used.
• Avoid signing documents about the strip without advice, since written acknowledgments can affect limitation periods.
• Ask a lawyer whether a negotiated agreement, a boundary confirmation application, or another step suits your situation.

The right path depends on the registration history and the facts, so early legal advice can save a lot of uncertainty.

Frequently asked questions