Adverse Possession

Question 1

Keefer v Arillotta

Answer 1

Facts: P and D next-door neighbors. P is residential, D is commercial. D owns strip of land (driveway plus grass) that he has used by easement for parking cars, BBQs etc for years, multiple owners of both properties. D doesn’t really use strip except as walkway to get to back of store, or D’s apartment tenants to access apartment. P claims they have acquired possessory title of the strip.

Held: D wins, still has legal possession of the strip (except for garage at back).
Reasons:
The animus possidendi which a person claiming a possessory title must have is an intention to exclude the owner from such uses as the owner wants to make of his property

Question 2

Pflug v Collins

Answer 2

Rule: A person claiming a possessory title must establish:
1. actual possession for the statutory period by themselves and those through whom they claim;
2. that such possession was with the intention of excluding from possession the owner or persons entitled to possession; and
3. discontinuance of possession for the statutory period by the owner and all others, if any, entitled to possession.
If he fails in any one of these respects, his claim fails.

Question 3

Teis v Ancaster

Answer 3

Facts: P farmer lives beside D park. Both parties for over 10 years mistakenly believed P owned the strip, but D actually owned. P would use land to move equipment, D sometimes for parking. P never put up a fence. D built a clubhouse near strip, and public started to interfere more often with P’s use of land.

Held: P wins. Test of inconsistent use doesn’t apply to a case of mutual mistake, and TJ didn’t err in finding possession by P. Municipally owned land can still be lost due to adverse possession, just like private land.

Reasons:
- The first requirement is actual possession for the ten-year period. To succeed, the acts of possession must be open, notorious, peaceful, adverse, exclusive, actual and continuous (requires all of these elements). TJ found all as a finding of fact.

• D’s main appeal is that TJ didn’t give test for inconsistent use. D acknowledges steps 2 and 3 of Pflug test met, but submits P’s use was not inconsistent with D’s use.
  o Inconsistent use can’t apply to mutual mistake cases, otherwise every such claim of adverse possession would fail

Question 4

St Clair Beach Estates v MacDonald

Answer 4

Facts: P lived on residential plot, they used strip in question for some backyard activities, septic tank. D are neighbors and owners of impugned land. D’s predecessors picked cherries on land up to 1966. P tried to buy land from D and D’s predecessors on multiple occasions. In 1972, P claimed possessory title due to adverse possession.

Held: D wins, was never out of possession prior to 1966 at the earliest. Further, P would have required intention to dispossess the owner if the analysis to go farther was necessary.