Adverse possession only applies to real property and fixed.
Being a possessor or owner is not a legal term of art: it is not defined and does not form the basis of a cause of action.
Statute only sets up the time to obtain title, other requirements are imported from case law
Case law requires the Key Notions: Adverse, exclusive, open, notorious, peaceful, actual, continuous
MOST AP CLAIMS DO NOT SUCEED.
The statute sets up a limitation period when the true owner can take action against a person who has entered the property and remove them from his land.
Peaceful: The law will protect if an AP voluntarily transfer his possession to another to continue the statutory period. But if someone forcefully removes an AP the statutory period is broken and restarts. Nothing can happen under threat of violence.
Continuity: it has to be continuous given the nature of the land – ie a farm must be farmed every year, but not 24 hours a day every day.
Open and Notorious: cannot be secret, there has to be a sense that the true owner is excluded, and you can’t exclude someone who doesn’t know.
Exclusive: the AP must exclude the true owner
Adverse: possession must be adverse to someone. It doesn’t have to be a specific intention to exclude the title holder, but you must have to intent to exclude everyone (presumably among everyone will be the owner). You act like the owner, and people treat you like the owner. No one contests your possession. (Ocean Harvesters)
Inconsistent Use Doctrine
Arose in Masaidon v. Ham, but doesn’t make a lot of sense and will likely be overruled in Canada soon. Judge says the present intended use of the land is important and not the future use. Means for AP to prevail must show that their current use is inconsistent with what the owners want to currently use the land for. Ie. Future development land cannot be AP’ed b/c the owner always wants to let the land sit and await future development. How can you be inconsistent with that?)
Introduction to Adverse Possession. P186
Crown owns all land – thus better in a dispute to ask who has the better title?
Adverse possession deals only with land (and buildings);
Definition: Adverse possession means that uninterrupted enjoyment of land of the correct nature over a period of time stipulated by law by a squatter (non-owner) deprives the owner of his or her title and effectively gives to the squatter a title to the land, a title better than all others.
Two principle aspects of adverse possession: 1 – Time (statutory period to hold land), 2 – and possession of land itself.
The Crown owns all real property, this is the starting point. Individuals only have title in real property.
It is from these 2 points that title in land is relative, it cannot be absolute because the Crown owns all the land.
Possession is 9/10ths of the law because it provides a method to acquiring title to unoccupied lands. Possession gave title to the possessor.
Possession also serves as proof title over and against other claimants.
Seisin is the old/medieval word for possession.
Short example used to prove the relational theory of common law property:
A sells land to B.
B never occupies it.
C occupies the land, thinking it is vacant.
D kicks C out.
Does C have a claim against D? Yes, because he has a superior right to D.
For B to claim the land from C, he must assert his title.
“A wrongful possessor will be able to defend his possession against trespassers and adverse claimants who have no better right.”
Today, title registries have displaced in part the role of possession in the common law.
But it is still true that it remains possible to acquire title to land at common law, good against all the world, through long possession.
Adverse possession is a defence against title possession (i.e. a paper title).
Adverse possession can serve as a grounds for an affirmative claim.
Provided there is no gap in possession, the potential adverse possessor can have “inchoate possessory title that can pass from one person to another. However if a squatter abandons the land before expiry of the limitation period, the holder can regain full rights and does not have to bring an action for recovery.
Test (St. Clair):
Meet the time requirements.
Have the intention to exclude others
Discontinuance of possession by owners
Ontario Limitations Act, R.S.O. 1990, c. L-15 (example of a statute of limitations dealing with possession) p.187
4.Holder of title must claim within 10 years. Squatter has title after 10 years of continuous possession.
5.1 Clock starts ticking when the squatter is dispossessed.
5.9 When the person claiming land becomes entitled by reason of breach of condition/forfeiture, the right is deemed to have accrued when the forfeiture was incurred or condition broken.
13. Possessory title can pass from one person to another by succession and the successor then in possession will acquire a title good against all the world including the true owner.
15. After the 10 year period, the title holder’s right extinguishes.
16. This does not apply to any land right acquired before June 13, 1922. After that date, land in common cannot be possessed.
36. If you are sick, disabled, a child, the period is 5 years and starts when you are cured or die.
Comments:
Possession must be continuous;
Fleet v Silverstein, Ontario High Court, 1963: “There is an abundance of authority that is binding on me that where there has been adverse possession by A as against B which is surrendered to C and C immediately enters into possession of a right which has been handed over to him by A the Statute of Limitations continues to run against the true owner.”
B is the owner. A is the possessor. A hands over the land to C. C continues to occupy the land. C, after 10 years, will hold title against B.
If possessor abandons land before the expiration of the limitation period, the land returns to the owner.
A gap in possession means you have to start back at time = 0.
A trespasser, who has not stayed the correct amount of time has still acquired something, even if it is not a title that can be passed on other than by the successor immediately possessing the land.
Perry v Clissold, Australia Court, 1907: Expropriation of land bill passed by the Crown. Clissold is the possessor of it but has not yet met the time requirements of the local statute of limitations (New South Wales). Crown doesn’t want to pay just renumeration because of it, which the AC permits. UKHL overturns: the Act should not have the effect of shaking titles or take advantage of the infirmity of anybody’s title in order to acquire his land for nothing.
Perry v. Clissold? 1 – possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has perfectly good title against all the world by the rightful owner – government was trying to expropriate land, but here the expropriation was for every person deprived of the land, and read in “land” to include title for the possessor. Aus NWS to Privy.
T.W. Merrill : “Property rules, liability rules, and adverse possession” 1985. P189; Justification of AP
This article deals with the justification of adverse possession per its Statute of limitations. In the end, the Statute is justified because it would be unreasonable to expect interested 3rd parties (contractors, tenants, suppliers, creditors) to perform title searches concerning persons that appear to be owners (the AP). These 3rd parties have a reliance interest that the person who appears to hold legal title does in fact hold it.
The statute of limitations/Adverse possession is justified because:
With the passing of time, memories fade, witnesses die, evidence disappears. The Statute recognizes this: proving claims after a certain time has passed is difficult. Result: the possessor is presumed to hold title.
Gather proof – as time goes by – becomes gradually more difficult and expensive. The Statute is an efficient (cost and time) solution and; it prevents unfair surprises coming from claims arising out of nowhere that become next to impossible to refute.
Use it or lose it! Title owners that sleep on their rights should be punished.
Rational #1: Because owners should be active and exploit their land (Bentham);
Counter argument #1: holding on to land for speculation can be beneficial (i.e. preserve the land for future generations to use).
Counter argument #2: the owner is free to do what he wants so long as he doesn’t injure others.
Rational #2: Really, all the TO has to do is assert his right, not develop his land.
Counter argument #1: The owner will be tougher to negotiate with since he’s never there.
Counter argument #2: The land must stay in the market (to avoid feudalism).
Rational #3: Reliance interest theory of AP:
The possessor has developed some sort of reliance interest in the land and it is important to preserve peace (frontier mentality).
And he may have developed a very strong attachment to the land (person-hood).
The possessor has spent money to develop the land (put up a building) and it would be unfair to the AP for the TO to claim back the land for he would extract the value of the land plus the value of the building.
Counter argument: But the TO also has a reliance interest. Property rights are created by law rather than unilateral expectations.
Rational #4: Reliance interest of 3rd parties. Creditors, suppliers, agents, contractors, tenants: its just not feasible to expect this class of persons to perform title verifications for someone who appears to be the TO.
No counter argument: this one seals the deal. The statute of limitations is justified.
Patricia Seed, “Ceremonies of Possession in Europe’s conquest of the New World, 1492-1640. Houses, Gardens and Fences. 192 - Adverse possession: The quality of Possession.
This is a short but very powerful article that explains that for a property system to be meaningful, it must understood by others, its audience must have shared values and beliefs in which actions speak. So a property system is culture specific.
Europeans believed in their right to rule the New World. They created these rights by deploying symbolically significant words and gestures. In continental Europe, settlers had to request land from the Crown. In English settlers simply had to occupy it, since land was considered to be in common. Title was acquired by building a house, putting up a fence, and working the land. Geographical surveys reinforced this system. It mapped who occupied what.
Native Americans also worked the land, but since they did not fence their pastures, the English did not recognize their possessory title.
English signs of possession in the NW were fences, gardens, houses.
K. Green, “Citizens and Squatters: Under the Surfaces of Land Law”. p195; Justification of possession for title
Another excellent article that justifies Lockian and Benthian theory as a function of the physical state of English land. It takes work to make English land productive. Had England been a desert, labour would not have rendered the land useful. Had England been a rain forest, the land would have been naturally productive.
Well cared for English land screams: I am owned.
Furthermore, the ideal English citizen is modeled on the ideal English owner (the one who lives in a house, with a manicured garden, and a nice fence): middle aged, middle class, heterosexual white man. This becomes the ideology of ownership.
The article also highlights the self-reference and circular justification of possession as door into title (ownership). Possession (occupying and tilling land) was justified because it reduced legal costs. It eliminated endless litigation over matters of title. The rule became normative in English society. The norm idealized the owner as a mythical character: patient, hard-working, and honest, so the land would be productive. This mythical character became the ideal English citizen. The ideal English citizen, the one who, when in possession of land mixes it with labour becomes its title holder.
