Possessory Title Claims Over a Strip of Land in Ontario

Maybe you have mowed, fenced or gardened a strip of land beyond your lot line for many years, and everyone treated it as yours. Now you wonder whether time alone has made it yours, or whether a neighbour could take it back.

The answer in Ontario depends on how your land is registered, how long the use has lasted, and a number of exceptions. This article explains the general rules in plain language so you know what questions to ask before you act.

What a possessory claim means

A possessory title claim, often called adverse possession, is a claim that you have occupied land belonging to someone else for so long that the owner can no longer take it back. It is not a quick or automatic process, and the strip does not become yours just because you use it.

The statute behind these claims says no one may enter land or bring an action to recover land except within ten years after the right to do so first accrued, and when an owner is dispossessed, that right accrues at the time of the dispossession or discontinuance of possession. When that time limit expires, the right and title of the person who could have recovered the land is extinguished.

First question: is the land in Land Titles?

This is the single most important point. For land registered under the Land Titles Act, no title, right or interest adverse to the registered owner can be acquired by any length of possession or by prescription, despite the Real Property Limitations Act. In practice, that means adverse possession and prescriptive easements cannot start running after land is in Land Titles.

The ten-year rule therefore matters mainly for land that is still in the older Registry system, which is where adverse possession claims to land have their basis. There is an exception for rights that existed at first registration: 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.

Whether a claim could have fully matured before the land was converted to Land Titles is a detailed question about dates and history. A lawyer can check the registration history of both properties.

Time limits and what can change them

Even where a claim is possible, the clock is not always simple. Several rules can change it:

• Written acknowledgment: a written acknowledgment of the owner's title affects when the limitation period runs against the person entitled to the land.
• Minors and incapable persons: if the person entitled was a minor or incapable when the right accrued, they may sue to recover the land within five years after the minority or incapacity ends, or after their death, whichever happens first.
• Crown land: the Crown has sixty years to recover land, and the ten-year provisions do not apply to waste or vacant Crown land.

A note on timing: any letter, email or document in which you acknowledge the neighbour's ownership of the strip could matter. Think carefully before signing or sending something about the boundary.

Possession versus a right to use

Sometimes what you really have is a long-standing right to use a neighbour's land, such as a path or driveway, rather than ownership. That is a different claim. A right of way or other easement cannot be defeated if the right was actually used without interruption for the full period of twenty years, and after forty years of such use the right is absolute and indefeasible.

That 40-year result does not arise if the use was enjoyed by consent or agreement expressly given for that purpose by deed or writing. The same Land Titles bar applies, so these claims cannot start running after land is in Land Titles. Which kind of claim fits your situation is worth confirming with a lawyer.

What to do next

The courts decide possessory claims using tests that come from case law, so the outcome depends on your particular facts. Before you rely on a claim, or before you worry about one against you, take these steps:

• Find out how both properties are registered, and how long they have been in that system.
• Write down who used the strip, how, and for how many years, and gather photos, receipts and other proof.
• Get a survey. Preparing plans that determine or establish a boundary is cadastral surveying, which requires a licensed surveyor or work under a licensed member's supervision.
• Remember that the Line Fences Act process does not decide where the property line is.
• Speak to a lawyer before you sign anything or confront the neighbour.

Frequently asked questions