A case on Adverse Possession - a 200 year old lawyer disrupts a modern condo development

By David Young

185 King Developments Inc. v Tewson, 2022 ONSC 6776 is a recent case which involved a dispute over the ownership of a strip of land beside a building on King Street East in Toronto. The applicant, a developer who had purchased the rest of the block to build a 33-story mixed-use tower, claimed adverse possession of the laneway, which had been possessed and used by the same family, Harry and Lewis Mitz, since at least 1941 to park their car.

Adverse possession is a legal concept which allows a person to acquire ownership of land by occupying it openly, exclusively, continuously, and without permission from the owner for a certain period of time. Most property in Ontario has been transitioned into the Land Titles System, which does not allow for adverse possession. A developer needs absolute ownership of the land that they are building on, so the developer sought a declaration from the court that it owns the narrow strip of land.

Henry John Boulton, the original owner, died over 150 years ago, and the respondents to this case were, in the main, the great-great-great-grandchildren of Mr. Boulton.

The court found that Harry and Lewis Mitz had met the necessary requirements for adverse possession, including open, exclusive, continuous, and peaceful possession and use of the laneway for at least ten years. Witnesses testified that from the early 1970’s, Harry and Lewis Mitz even placed a chain across the entrance to the laneway. The court also noted that the laneway had not been mentioned in the will of the original owner, Henry John Boulton, and there was no evidence of a grant of easement.

The court's decision illustrates that adverse possession is still a viable legal claim in Ontario, even after the transition to the Land Titles System.

It also highlights the value of thorough research and due diligence before buying a property, especially in areas like Toronto where the land's ownership may be unclear, as well as the importance of proper estate planning to ensure that one's assets are passed on to the intended heirs without any complications.