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Adverse Possession Claim

Preface:Is there a possessory title claim to be made? If not, proceed via Adverse Possession.

Step 1: Is the land registered under the Land Registry Act? If so, we can proceed.

Step 2: What common law elements of adverse possession are engaged?

o Open & Notorious

Is the possession secretive?

Is it public?

o Adverse & Exclusive

Is the squatter using the property as the owner would and without their

permission? Are they excludingthe owner and others?

If at any time the squatter acknowledgesthe right of the paper title holder the

claim will fail(Re: St. Clair Beach Estates v Macdonald)

o

Peaceful Was possession taken by force?

o Continuous

The occupation of the squatter will not be sufficient if its occasional or limited

Intermittent usecan still be sufficient if the context allows it (ie. Seasonal)

The above acts of possession are highly contextual. Focus on those that are most

relevant to the case. Do not belabour them.

Step 3: Does the Statute of Limitations apply?

Is there discontinuance ORdispossession? If so the clock starts to tick.

(St. Clair Beachsays you need both, but common law no longer recognizes this;

one or the other will suffice)

Paper title owner must bring their action within 10 years (s4Real Property

Limitations Act(Ontario))

The clock starts ticking from the moment of discontinuance or dispossession (s5

RPLA ON), and the clock continues to tick for subsequent squatters

Step 4: Is there Discontinuance (about paper title holder)

Paper title imbues constructive possession; the smallest act ensures theowners continuance (intention to possess)

Acquiescence to the squatters (saying and doing nothing) is not implied consent

(Keefer)

When there is consentyou must show discontinuance ANDdispossession

(Keefer)

Step 5: Is there Dispossession (about the squatter)

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Step 5(a):Is there Actual Possession (factum)?

Does the squatter have Actual Possession

Is the squatter using the land as AN OWNER would use the property (not THE OWNER)

Upkeep (i.e. planting things) is not sufficient (St Clair)

There has to be intention to exclude the true owner:

Step 5(b): Is there intent to posses (animus possedendi)?

Is there a mutual mistake?

Mistake:Then you do not need to show intent to posses, because

discontinuance/dispossession cannot be shown, because the intended use of the

owner cannot be determined.

o (Wood v Gateway) (TEIS v Ancasterdefinitively says the test wont apply).

o Claim wins.

If only one side is mistaken

o The case falls between Kiefer v Arilotta(no mistake) and Wood v Gateway

(mistake)

o You will look to the facts and argue whether or not the squatter could be

deemed a Land Grabber (dishonest). If dishonest, proceed as if there was no

mistake.

No Mistake:You must show dispossession via the Inconsistent User Test

o Is the squatter using the land in a way that the owner intended to use it?

Yes: Then the squatter does not have intent to excludethe owner

and the claim fails.

No: Then the squatter is excluding the ownerand the claim wins.