Oct 2025
Can a Homeowner Claim Ownership of a Parkland?
What the Supreme Court Says About Squatters' Rights and Municipal Parkland.
By Victory Adeosun and Slonee Malhotra
What Is Adverse Possession?
Adverse possession, commonly known as squatters’ rights, is a legal doctrine that allows a person to acquire ownership of land by using it openly, continuously, and without the true owner’s permission for a prolonged period.[1] In Ontario, this doctrine is governed by the Real Property Limitations Act (RPLA). Under the RPLA, if an individual has occupied another’s land for at least 10 years and meets all the legal requirements, the true owner’s title may be extinguished, allowing the occupier to claim ownership.[2]
The concept of adverse possession originates from centuries-old common law principles which were designed to encourage landowners to actively monitor and use their property. The rationale behind the doctrine is that the law favours diligent and attentive owners. When a property owner neglects their land for an extended period while another person uses and maintains it as their own, the law may, transfer ownership to the possessor.
Courts in Ontario have seen various examples of adverse possession in action. For instance, in the case of 185 King Developments Inc. v Tewson, a century-old title issue arose when a developer claimed ownership of a laneway that a family had openly used since the 1940.[3] This shows while the concept of adverse possession may be centuries old, it still holds a lot of relevance in our current society.
Kosicki V. Toronto (City)
Let’s take a look at a more recent case involving adverse possession. On September 19, 2025, the Supreme Court of Canada (SCC) released a decision on the Kosicki v. Toronto (City), case which examines whether private homeowners could successfully claim ownership of a portion of municipal parkland through adverse possession.
In this case, Mr. Pawel Kosicki and Ms. Megan Munro purchased their Toronto home in 2017. Their backyard, surrounded by a chain-link fence, included a small strip of land that, unknowingly to them, belonged to the City of Toronto.That piece of land was originally part of a larger area that the city took over in 1958 and officially turned into parkland in 1971. However, a fence had been around that small strip since at least 1971, and the city never used it or took care of it.[4]
After purchasing the property, the homeowners paid property taxes on the fenced area and maintained it as part of their yard. When they later learned the City held title to that portion, they attempted to purchase the strip, but the City refused, citing a policy against selling green space. The homeowners then sought possessory title under the RPLA. The case eventually reached the SCC after the lower courts denied their claim.
Test For Adverse Possession
To prove that someone has possessed land long enough to make an adverse possession claim, the court looks at three key factors. The person making the claim must show that their possession of the property meets the following:
- Actual possession: The claimant must have physically used or controlled the land as an owner would for at least 10 continuous years.
- Intention to exclude: The claimant must have intended to exclude the true owner from the property.
- Effective exclusion: The claimant must have effectively prevented the true owner from accessing or using the land during that period.[5]
To establish step one, actual possession, the claimant’s occupation of the land must meet several important characteristics.
- The use must be open and notorious, meaning it is visible and obvious to anyone and not hidden from the true owner.
- It must also be adverse, meaning it must be carried out without the owner’s consent or permission.
- It must be exclusive. This means that the claimant must exercises sole control over the property without sharing it with the owner or the public.
- It must be peaceful and continuous, meaning it must be maintained without force, secrecy, or interruption throughout the entire statutory period of 10 years.
Application to the Case
In the case of Kosicki, all these requirements were met:
- The fence had clearly and openly enclosed the land for over 50 years.
- The homeowners and their predecessors had maintained, used, and paid taxes on the property as if it were their own.
- The City of Toronto never consented to this use or attempted to reassert ownership.[6]
As Justice O’Bonsawin, writing for the majority noted that the claim satisfied the RPLA’s statutory test. The City’s title to the disputed land was therefore extinguished decades earlier, and the homeowners were entitled to ownership.[7]
Prior to the final ruling from the SCC, the lower courts in Ontario, the Ontario Superior Court of Justice (SCJ) and the Ontario Court of Appeal (ONCA) both dismissed the claimants’ claim by attempting to expand the traditional test for Adverse possessions. At the Superior Court level, Justice Donohue introduced what she referred to as a “public benefit test,” reasoning that public policy should prevent private individuals from fencing off and claiming public parkland.[8] In her view “a private landowner may not proceed to fence off public lands, exclude the public and succeed in a claim for adverse possession,” She then emphasized that allowing such a result would set “a dangerous precedent” as a matter of public policy.[9] The Court of Appeal also upheld that Justice Donohue’s decision but reframed the test, holding that if land was “dedicated to a municipality for the benefit of the public,” then an adverse possession claim could not succeed unless the municipality had agreed or consented to the private use.[10]
However, when the case reached the Supreme Court of Canada, the judges rejected the lower courts’ reasoning. The majority explained that courts cannot change or add to laws in ways that go against what the legislature intended. Justice O’Bonsawin noted that the RPLA already lists the types of public land that are protected from adverse possession, such as Crown land, road allowances, and public highways. Municipal parkland is not on that list, which means it can still be subject to an adverse possession claim. The court emphasized that attempting to create a common law except for municipal parkland would undermine the legislature’s policy choices and exceed judicial authority. By trying to create a new rule to protect parkland, the lower courts had gone beyond their authority and ignored the choices already made by lawmakers. The SCC made it clear that only the legislature, not the courts, can decide whether to expand these protections in the future.[11] The Supreme Court also explained that the Court of Appeal’s approach conflicted with the very idea of adverse possession. By requiring proof that the city knew about and allowed the private use, the test effectively turned an unauthorized occupation into a permitted one, which defeats the purpose of adverse possession altogether.[12]
The Supreme Court ultimately ruled in favour of the homeowners, declaring them the legal owners of the disputed strip of land. As discussed in our earlier article, this decision is expected to shape future cases involving municipal land and adverse possession, highlighting the important balance between statutory law and common law in property disputes.[13] This ruling also serves as a reminder for homeowners to regularly check their property boundaries and title records.
If you believe you may have rights to land you’ve occupied for many years or if your property boundaries are being challenged our real estate lawyers at Sorbara Law can help. We have extensive experience resolving disputes involving adverse possession, encroachments, easements, and title defects.
To learn more, read our related articles: