Introduction to St. Clair Beach Estates Ltd case p197
There are 2 systems of recording title in Canada:
Registry system:
Allows registration of all documents pertaining to land.
Allows the owner to protect his title against all unregistered documents.
Does not protect the owner against unwritten unregistered claims (i.e. a squatter).
It is not mandatory.
It does not guarantee title.
So prospective buyers must perform an independent title search by checking all the documents registered against a particular piece of land.
Land Titles or Torrens system:
The government stands behind the title as shown on record.
When recorded, all outstanding interests are investigated.
A certificate of title is then issued.
An insurance fund provides compensation in the event of official errors.
There is no need to perform an additional title search.
Used in BC, AB, SK, parts of MB and northern ON.
Re: St. Clair Beach Estates Ltd. v. McDonald, ON Gen Div, 1974. P198; No Possessory title; 3 requirements of possession
Facts: MacDonald (appellants) lived on land adjacent to Grant Farm. Grant Farm was owned by St. Clair Group (registered title holders, “true owners”). MacDonald acted as if land was theirs (removed trees, put in a dog house, skating rink in the winter, picnic table, sceptic tank, etc.). On the other hand, Grants (the predecessors to St. C) occasionally picked cherries on the land up until 1966. MacDonald offered to buy land from Grants (evidence that they knew that land rightfully belonged to Grants) in 1969, but Grants never sold. After their purchase in 1972, St. Clair Group surveyed the land and planted stakes. MacD’s tried one more time to buy the land from St. C.
Issue: Does MacDonald have possessory title? [NO]
Rule: A person has possession if all these 3 conditions are met:
He has actual possession for the statutory period (together with those with whom he is claiming);
Such possession had the intent of excluding others;
The owners and all others discontinued their possession for the statutory period.
Ratio (Pennell, J.):
The 10 year period had not lapsed;
Although MacD wanted to exclude all others, this alone is insufficient.
The clock started ticking either in 1966 (when the Grants stopped picking cherries) or in 1969, when they rejected the buyer’s offer.
Important points:
What is the quantity of possession needed to demonstrate possession? The smallest act by the owner would be sufficient to show that there is no discontinuance of title. Animus possidendi = occupation with the intention of excluding the owner as well as other people.
Does the owner have to demonstrate possession every day? No, there may be long intervals between the acts of the user.
Does split possession exist? No, possession is single and exclusive.
D. Mendes Da Costa and R. Balfour, “Property law: Cases, Text and Materials”. P203; examples of establishment and failure of AP
This article lists various rules, as stated in different cases. In general, establishment of adverse possession varies with the circumstances. A short list follows.
Hughes and Hughes v Speight, Speight, and O’Dell, 1979, NB: constructing and operating a lumber camp, putting trailers on the premises, digging a well, and hauling a quantity of fill.
Re Taylor and Willigar, 1979, NS: building and using a small shack where the use included a base for fishing and the shack was vacant during the winter.
Brown v Phillips, 1963, ON: making regular use of land for the parking of cars.
Neary’s Estate v Neary, 1981, Nfld: seasonal farming; building a house, clearing land, putting up a barn.
Pugh v Calhoun, 1980, NB: regular planting of crops on land, pasture, erection of fence, cutting of logs.
Collicutt ltd v Dorey, 1980, Federal court: farming and lumbering or cutting, more than isolated acts of trespass.
Re Chaytor, 1980, Nfld: Fending land with the intention of obtaining title, using for pasture and cutting wood.
Port Franks properties v Queen, 1980, Federal court: establishing and operating a military base used for infantry and vehicle training.
Afton Band of Indians v Atty Gen’l of NS, 1978, NS: In the case of an Indian band: cutting pulpwood, firewood and Christmas trees, berry picking, use of land for religious or burial purposes.
Insufficient cases of AP:
Hillegass v Hawco, 1977, Nfld: the seasonal use of land, including maintaining a fence, cutting hay, pasturing cattle.
Re Tri-development Ltd, 19889, NB: Occasional wood cutting.
H. A. Sempk ltd v Minister of Natural resources, 1976, NB: isolated acts of cutting timber on woodland.
Clarke v Olscamp and Hughes, 1979, Nfld: casual or periodic cutting of a lawn and minor clearing of underground.
Griffin v Poirier, 1980, NS: The registration of a deed, the intermittent dumping of rubbish, children playing on land, the occasional gathering of apples.
Attersley v Blakely, 1970, ON: Sporadic use of land.
Beaudoin v. Aubin, 1981, ON HC, p. 205 Adverse Possession does not require intent; possession is certain and unequivocal
Facts: Plaintiffs are owners of property acquired by deed adjoining the defendant’s property. There is a dispute of 4.7 feet wide, delineating the line between properties. 4.7 feet is the possessed land, which is on defendant’s land according to the deeds. Plaintiff’s first occupied in 1951, purchasing land in 1966, defendants purchased in 1973. B in possession from ’51-66, and possession continued to 1973. From 1951-1968, the portion was fenced. Plaintiff’s possession was not directly challenged until 1979 Boundary line “line of occupation” is to north of boundary, as was determined by a surveyor in 1979. Ss. 4 & 15 of Limitations Actlimits reclaiming of land, and is statute of limitations. Defendant’s claim a “misapprehension of occupation” by the plaintiff’s.
Issue: Is the defendant’s claim that a “misapprehension of occupation” legitimate based upon a lack of animus possidendi legitimate?
(Anderson -- NO):
Animus possidendi: Intentional Possession. When the possessor knowingly/intentionally retains property, thus distinguished from mere custody.
Animus Possidendi is only important when possession is doubtful or equivocal. Here, when possession is certain and unequivocal (both parties knew that the plaintiff’s were in possession), then animus possidendi is presumed.
Defendant’s claim narrow interpretation of “misapprehension of occupation,” statute did not run during mutual misapprehension and that the line of occupation represented the boundary, and only after 1966 did the possession start the running of the statute. Inherent in this is the contention that a specific intention to exclude the owner is essential.
Specific intention to exclude the owner is NOT essential to constitute adverse possession in the nature and proof of animus possidendi.
In common law, as a general statement of principle, the plaintiffs were entitled to succeed. They posses, occupied, and used that land as if it was their own, and at any time the defendants could have made an entry or brought action.
Banning: Statute Law of Limited Actions The doctrine of adverse possession in the old sense is abolished (old sense is that wrongful possession did not ripen into a claim to extinguish the owner’s remedy unless there had been an outsider of the legal owner) – Adverse possession now simply means possession inconsistent with the title of the lawful owner, and all possession without the direct authority of the owner may now be considered as adverse.
It is false to propose that before a party can successfully rely upon ss. 4 and 15 of the statute, he must establish a subjective intention, with knowledge of the rights of the plaintiff to present to his mind, to occupy in defiance or denial of those rights.
Lundrigans v. Prosper, NL, 1981, p. 210 Adverse possession must be exclusive, uninterrupted, open, and notorious,
Facts: Plaintiffs built two cabins (1956/1973) on land originally held in title by Bowater Newfoundland. Limitations of Actions (Realty) act, R.S.N. 1970, is a statute of limitations that states that no person has rights to recover land after person has been in possession of land for 20 years. Prosper now has title, and Lundrgians is attempting to have a certificate of title issues.
Issue: Can a holder of documentary title be dispossessed by exclusive and uninterrupted possession of land only through statute?
(Gushue J.A. - NO): 1 – Exclusive, 2 – uninterrupted, 3 – open, and 4 – notorious occupation must all be present for adverse possession to bar the true owner’s title in land (here 20 years through statute).
Visibility = the opportunity for the title owner to have knowledge of the proposition.
Presumption of ownership = The burden of proof is upon the adverse claimant to prove the constituent elements of the claimed possessory title. Presumption of ownership must remain with the holder of documentary title.
Case = Neither openness nor notoriety of possession has been demonstrated.
Wilderness land: thus no actual knowledge of Bowater.
Cabin well hidden (though not intentionally) and could only be seen from the air.
Location unknown despite proximity to Cornerbrook, Humber river, and Transcanada highway.
Respondents brought forward no real evidence of the knowledge in any other persons besides themselves and immediately family members.
Outcome: TJ erred, and unqualified certificate ought to be granted to the appellant (Lundrigan).
Wood v. Leblane., SCC, 1981, p. 212 Doctrine of Colour of Title, misinformation leads to entire property
Normally adverse possessors gain title only on the part of the land that they occupy. If a person though enters land under “defective title,” and possession is open, actual, exclusive, continuous, and notorious, the possession is extended by construction to all lands within the boundaries of deed but only when and while there is that part occupation.
The person claiming the AP has some title to the land, but maybe not complete title that would actually make them an owner. They are honestly relying on some sort misinformation…they would get title to the entire property.
Ocean Harvesters v. Quianlan Brothers, SCC 1975, p. 213 Importance of Intent for adverse possession
Facts: Quinlan Bros. have registered conveyance from the administrator of the estate of Silaw W. Moores. Appellant ocean Harvesters Limited claims that Mr. Moore’s title to the property was extinguished through possession, because North Eastern Fish Industries Limited, through whom Ocean Harvesters acquired title, were in possession of the property by the will of Mr. Moores for over 21 years. Moores held title of the property in his own name, from purchase date to his death in 1961, but he allowed north Eastern to use and occupy the premises during the fishing season, some seven months a year, each year. No rent was paid. Moores purchased properties in his own name, and in his company name. Although they were paid by North Eastern, Moores personally hired and fired employees at the property. He decided when the operations would start and stop each year. Possession by North Eastern was seasonal for seven months of the year.
Issue: In cases of corporate ownership, is intent to exclude True Owner (sole-shareholder) important to determine the title holdership?
Majority (Dickson -- YES)The company had occupancy for part of each year with his benevolent concurrence, thus his intent was to keep possession and control in a personal capacity, and the company DID NOT possess the property in exclusion to Mr. Moores.
With nothing in writing to define intent, there is only the incongruity of Mr. Moores retaining title leads one to think that relations between Mr. Moores and North Eastern were not intended to create any proprietary interest.
Masidon Investments v. Ham, ON CA, 1984, p. 216 A trespasser’s use must be inconsistent w title holder intent for true adverse possession.
Facts: Masidon investments acquires half a 100-acre parcel of land through mortgage negotiations, and the title to the other half is with Ham (respondents). On Ham’s disputed property, Masidon’s owner Mayzel builds a private airport with two grass runways (1st in 1950s and 2nd in early 1960s). A wind-sock was visible from the highway, and prior to 1960, a small building was built with a parking lot. Airport used generally year round, with exceptions of spring and fall when conditions were muddy, and limited winter as no snow clearance equipment. Listed in gvt and private airport listings. Appellant had someone living in house on property, and a fence was built solely to keep horses in. Appellant’s legal right to be on the land was terminated by a registration of the final order of foreclosure – Thus he was trespassing. When foreclosure notice came inappellant testified that “he would use lands as he had in the past… until excluded by judges order… [and close to the end of the 10 year period] he fashioned a design to acquire possessory title to the land in dispute. Appellants were unaware of the respondents use of property. They found out when they were re-zoning to develop the land. Issue: 1 – Was the use of the land by Masidon (the trespasser), inconsistent with the intent of the respondents, thereby excluding the owner and supporting the claim of adverse possession? [NO, not inconsistent, AP denied]
2 – Does Masidon have the required animus possidendi (the intention to exclude the respondents from possession? [NO] Reasoning Majority (Blair – NO/NO)
A claimant to a possessory title throughout the statutory period must have
Had actual possession;
Had the intention of excluding the true owner of possession; and
Effectively excluded the true owner from possession.
1 - The trespasser’s intended use of the land was not inconsistent with the respondent’s intended use of the land (to hold for a sale at the appropriate time at the right price. Nothing was done on the land which conflicted with the respondent’s purpose of holding it for sale for development.
To determine “inconsistent with the use”: Consideration is given to the use made by the owner during the period of trespasser’s possession, and excludes all future intended use.
No attempt to fence in, facilities not permanent, and refused to make facilities commercial.
To have a successful adverse possession claim, M would have to prove that his actions were inconsistent; actions that demonstrate a holding of the land for sale at an appropriate time.
Policy Issue: This means that possessory title cannot be obtained against “development land” which is in the holding stage.
Not an issue: There is no policy reasons for concern about the rights of any trespasser seeking to acquire possessory title to land held for development
2 – Animus possidendi did not start at the moment M became trespasser, facts suggest that this occurred sometime closer to the end of the 10 year period, further, the appellant did not in fact exclude the respondents from possession makes it unnecessary to consider if he had the intention of doing so or not.
Occupation of colour of right only works when the trespassers occupied the land with the intention of excluding all others including the true title holder. This is not the case here.
Teis v. Ancaster Town, ON CoA, 1997, p. 225 Mutual mistake does not require proof of inconsistent use – claimants can be inferred as having land title.
Facts: The Teises claimed possessory title over two pieces of land that both the Teises and the town mistakenly believed belonged to the Teises.
Issue: 1 - Must a person claiming possessory title show “inconsistent use” when both the claimant and the paper title holder mistakenly believe that the claimant owns the land in dispute.
Holding (Laskin J.A.) – NO)
Inconsistent use does not apply to cases of mutual mistake, for if it did, every adverse possession claim in which parties were mistaken about title would fail.
Inconsistent use of means the claimant’s use of the land is inconsistent with the owner’s true intended use.
If a true owner mistakenly believes that the claimant owns the disputed land, then the owner can have no intended use for the land and, correspondingly, the claimant’s use cannot be consistent with the owner’s intent.
In cases of mutual mistake the court may reasonably infer that the claimants, intended to exclusion all others (including the paper title holder) Case: it is possible to determine what use the claimant intended for the property when they at no time contemplated its use as they believed they owned it and had no intent.
Notion of “Adversity”from Masidon: In Masidon J. Blair found that inconsistent use captured the notion of “adversity” in adverse possession.
If “adversity” is required, then at least in the case like this one under appeal, adversity simply means being in possession without the authorization of the paper title holder.
Colour of Right (or mistake as to title or boundaries) in cases of mutual mistake: Occupation under colour of right or mistake might just justify the interference that the trespasser occupied the lands with the intention of excluding all others (which would include true owners).
Adverse Possession of Municipal Park Land [232]
On AB has legislation to prevent the AP of Municipal land.
The right of ownership of real property held by municipality for the common benefit cannot be lost by adverse possession.
Gorman v. Gorman, O.A.C., 1998, p. 233 In marriage splits, animus possedendi is not established without cogent evidence of intention
Facts: Appellant and respondent were married, they split up, husband left house. He would return to visit, but never returned to live full time. Also only paid some minor support to his children and wife. He continued to ask for his share of the matrimonial home over the years, respondent said that she could not raise the $ to buy him out – she believed that when he left home, as 25 years had passed that the house was hers. TJ held that appellant had actual possession for 20 years, but that the appellant failed to establish animus possidendi.
Issue: 1 – Is it necessary to prove an animus possedendi to establish a claim for adverse possession?
(Laskin – YES) Moldaver J. inWood v. Gateway provides that 1 – the party seeking possessory title must prove the animus possidendi, and 2 – in cases of mutual mistake, the requisite intent can be inferred from the evidence itself.
This is not a case of mutual mistake as both the appellant and the respondent were well aware that the respondent had a legal interest in the property as a joint tenant.
Therefore, the burden was on the appellant to prove the requisite intent.
Robins J. in Re Strong and Colby et al: In a divorce situation, where the statutory period is relied upon, in whole or in part, during the currency of the spousal relationship… the onus of establishing requisite animus possidendi not be treated as satisfied and the ownership of a spouse extinguished unless some cogent evidence of intention, in addition to the fact of possession itself is adduced.
In determining requisite intent in marriage situations, it is a question of fact and a determination of the conversations between the parties.
Comment: Inconsistent Use Test is still good law in Canada.
Case
Facts
Rule
How applied here.
St Clair Beach Estates Ltd.
MacD took care of another’s land for many years. Tried to buy it 3 times, without success.
Does MacD have title? No.
3 conditions to AP: 1) actual possession for statutory period, 2)the intent of excluding others, the owner discontinued their use of the land for the period.
No. Did not exclude owner from using land. No, owner tolerated but did not stop using the land..
Beaudouin v Aubin
Mistake of where the property ends. After a survey, owner wants it back. B uses land for 28 years. Had put up a fence at one point.
Has B acquired title? Yes.
Continuous; Peaceful; For a time greater than statutory period; Unequivocal.
Yes; Yes; more than 10 years; fence = unequivocal therefore intent is presumed.
Lundrigens v Prosper
Tiny shack hidden in a huge tract of timberland. L regularly surveys their land, never saw the shack.
Does P get AP? No.
Open; Exclusive; Notorious; Uninterrupted; Actual; Constant; Visible; For 20 years.
Yes to all except that the shack was not visible to anyone. The TH did not have the opportunity to oppose the AP.
Ocean Harvesters v Quinlan
See little drawing. OH new owner. Wants title (T) because they use 7 months / 12 like previous owner did for a long time.
Does OH get title? No.
Possession must be exclusive, sole or dominant control against the world.
Here, the old owner did not intend to exclude others and OH does not have the limitation period.
Madison v Ham
M sells land to H because he went bankrupt. Sets up airport on it for a long time. Lies low. H holds on to land for speculation. Is told by prospective buyer that there is an airport on it.
Did M get AP? No.
A possessor must show that he intends to exclude the true owner from possession.
Owner was not effectively excluded. M’s use was not adverse to H’s. Plus he had some bad faith so the true owner may not have had the opportunity to see an inconsistent use.
Teis v Ancaster
Teis and Town both make a mistake as to the true boundary of Ties’ property. Town looses out.
Does Teis have AP? Yes.
A mutual mistake negates the importance of the Madison v Ham test: the occupier no longer has to intentionally exclude the original owner.
There was a mutual mistake, the limitation period had lapsed. Note: open possession serves as notice to the owner.
Gorman v Gorman
H&W get divorced. He leaves house and lets W live in it with the kids.
Does W get AP? No.
The AP must have the intention to exclude the owner.
Here, the owner did not have the intention of occupying the house so he could not be excluded from it because of her (had it been a 3rd Party maybe that would have been different.).
Final Notes [238]:
Keil v. 762098 Ontario Inc. et al.: Using possessed land as a driveway was not inconsistent with use of land purchased for redevelopment (but only found out about the possession when land was purchased. The owner’s intention must relate to a time during which the limitation period was running (the did not own the land before).
Georgco Diversified Inc. v. Lakeburn Land Capit al Corp (1993): Land was possessed over 40 years, and turned into backyards with fences. In order to establish adverse possession, the claimant must be inconsistent with the intended use of the property by the true owner. Ground J. found that the evidence indicated that the intention in terms of use of the disputed land would be that no one should make use of the lands.
UK House of Lords has abolished the inconsistent test use test.
All land titles statutes, except Alberta, declare the land titles act to be paramount to the limitations act.
Steps to Establishing Adverse Possession (as applied is Masidon) – All 3 steps required to start Limitation Period
1
Possession
Adverse
Beaudoin
Masidon
Teis
AP was certain and unequivocal.
Trespasser’s actions were not adverse to owner
IUT captures notion of adversity- not required in cases of mutual mistake
Exclusive
St. Clair B
Masidon
Ocean Harv
Beaudoin
Lundrigans
Requires intent of excluding others – can’t have split possession
Trespasser act not exclusive – no fence, permanent structure
Corp used property seasonally, but owner/SH was present – not exclusive
Trespasser held land exclusively for 28 years, land was fenced
Exclusive not enough on its own to disposes owner
Open and Notorious
Lundrigans
Mendes de C
Trespasser must be visible to owner (opportunity to see) to have knowledge–cannot be hidden
Cases cited mostly involve: farming, grazing, building, logging – all open
Continuous
Lundrigans
St. Clair B
Teis
Continuous possession Not enough on its own to disposes owner
Smallest act by owner is enough break possessor continuity
