Property Rights Acquired Outside the Planning Act

Interaction of Adverse Possession, Prescriptive Easements, and the Land Titles System

By Nathan Henderson and Camdin Kingsbury

Say you are looking to purchase a property, you find a great listing and check it out. One of the best things about this property is its waterfront access. It’s beautiful. You put in an offer and your lawyer takes a look at title. There’s a problem. That wonderful waterfront access is not part of the land that is owned by the vendor, it’s apparently owned by someone else predating the current land titles system. The vendor however has owned this property for more than 40 years and has used this waterfront undisturbed for the entirety of their ownership of the property; the real owner has never surfaced to claim their right to the land. The vendor had used that waterfront access as if they owned it for decades.

This situation is a good example of the legal principle of adverse possession (or as it’s often less positively referred to, “squatter’s rights”). Adverse possession arises when a person occupies another’s land without permission for an extended period, thereby acquiring title to the land from the registered owner. The essential legal elements are that the possession must be “open, notorious, peaceful, adverse, actual, and continuous” as stated in Teis v. Ancaster (Town of), 1997 CanLII 1688 (ON CA). Common examples include fences or buildings erected in error over a property line: a clearly visible and distinct sign of property boundaries that if unchallenged for the required time period, despite not being over the correct boundary, can result in a finding adverse possession if the elements remain intact. Adverse possession is a concept that remains valid; however, its application has been significantly reduced under the Land Titles System, which is the system that all properties in Ontario are currently organized under.

Adverse possession is not a principle that is governed by the Planning Act, R.S.O. 1990, c. P.13, which governs matters such as zoning, subdivisions, severance, etc. Instead, adverse possession is a common law doctrine that interacts with the Real Property Limitations Act, R.S.O. 1990, c. L.15 (“RLPA”). Under the RLPA, a person in possession of land without title may acquire ownership after ten (10) years of continuous possession against the valid owner. The Land Titles System further restricts this doctrine by requiring the whole ten-year period of adverse possession to be completed before the land was converted into the Land Titles System. So the claimant must demonstrate proof of this along with the elements of open, notorious, peaceful, adverse, actual, and continuous possession.

In OAS Management Group Inc. v. Chirico, 1990 CanLII 6909, the court concluded that where a person occupies land in the assumed character of an owner, and exercises ordinary rights of ownership for the statutory period, possessory title is obtained. Importantly, possession acquired by adverse possession was not found to violate the Planning Act and its usual guidelines of acquiring title. Accordingly, adverse possession may be established by demonstrating that an individual treated a neighbour’s land as their own for at least ten years prior to the land's conversion into the Land Titles System.

A related legal principle is that of prescriptive easements, which likewise is not governed under the Planning Act.  An easement by prescription does not fall under the Planning Act, as it occurs through the same mechanisms of adverse possession. This means that one property owner uses a portion of their neighbour's land without permission in an open, continuous and uninterrupted way, and it remains uncontested for twenty (20) years. As with adverse possession, the Land Titles System has significantly curtailed the availability of prescriptive easements, and such rights will only be recognized if the whole twenty-year prescriptive period was completed before the land was converted to that system.

In summary, while the Land Titles System has vastly diminished the use of adverse possession and prescriptive easements, they remain available in limited circumstances. Where the applicable statutory period was completed before conversion to the Land Titles System, and all elements of adverse possession in order to demonstrate ownership or a prescriptive easement are met, the resulting transfer of property rights occurs outside the scope of the Planning Act and may take place without such consents under the Planning Act.