Possession and Title

Question 1

Define adverse possession

Answer 1

the uninterrupted enjoyment of land
1) of the correct nature
2) over right period of time (10 years in ON - from statute)
deprives the owner of their title and gives the squatter title to the land

Question 2

What is the relationship between adverse possession of a particular piece of land and the surrounding lands? (i.e., can you adversely possess surrounding lands?)

Answer 2

No, adverse possession only affects the land occupied

Lundrigans - would not have been able to access the cabin in the woods because they only could argue title was acquired for the land the cabin was on

Question 3

Define ‘inchoate possessory title’

Answer 3

the type of possession an adverse possessor has before they acquire title

Question 4

Can inchoate possessory title be passed from person to person?

Answer 4

Yes, as long as the possession is substantially continuous, the ‘adverse possession clock’ continues to run even if the possessor changes

Question 5

If the owner of land changes while someone is adversely possessing that land, what happens to the ‘adverse possession clock’?

Answer 5

Nothing, the clock continues to run

Question 6

If multiple individuals sequentially adversely possess land, who gets the title at the end of the appropriate time period?

Answer 6

the last possessor when the clock runs out gets the title

Question 7

If a squatter has permission from the owner to possess is it adverse possession?

Answer 7

No

Question 8

What is required to establish adverse possession?

Answer 8

2 and #3 are qualified with the ‘inconsistent use test’ (Masidon)

From St Clair Beach
1) Actual possession (actual, continuous, peaceful, exclusive, adverse, OPEN, NOTORIOUS)
2) possession intended to exclude others
3) the true owner is effectively excluded from possession

possession must be through acts that are inconsistent with the use intended by the owner!

inconsistent use test does NOT apply to mutual mistake (not true for unilateral mistakes) (Teis)

Question 9

In the context of adverse possession, what is a mutual mistake?

Answer 9

both parties think that the adverse possessor is actually the title holder

if both the owner and the possessor think that the possessor is the owner, then do not need evidence of intention to exclude the owner specifically

Question 10

How does mutual mistake effect adverse possession?

Answer 10

In cases of mutual mistake, only ‘possession without authorization’ of the true owner is required

Question 11

Importance of St. Clair Beach?

Answer 11

(used neighbour’s area of land like their own - cherry picking)
set out the test for adverse possession

Question 12

Importance of Lundrigans?

Answer 12

(cabin in the woods)
qualified the test of adverse possession - possession must be open, visible, notorious

Question 13

Importance of Beaudoin?

Answer 13

(error in the deed about the boundary)
before the inconsistent use test was created held that adverse possession meant possession inconsistent with the title of the lawful owner

animus possidendi - intent to exclude

Question 14

Importance of Keefer?

Answer 14

(strip of land along property)
Incorporated inconsistent use into the second step of the adverse possession test

possessor must have the intention to exclude the owner from uses that the owners wants to make of his property

Question 15

Importance of Fletcher?

Answer 15

(cement pad on buffer land)
incorporated inconsistent use into the third step of the adverse possession

the adverse possession must be inconsistent with the form and use of enjoyment the plaintiff intended to make of the land

Question 16

Importance of Masidon?

Answer 16

(using land half not his as private runway)

most complete articulate of the inconsistent use test:

person claiming possessory title must demonstrate that they effectively excluded the possession of the true owner and used the land in a way that was inconsistent with the way the owner wanted to use it

Question 17

Importance of Teis?

Answer 17

articulated that the inconsistent use test does not apply in cases of mutual mistake

If the true owner believes that the claimant owns the land, they have no intended use and therefore the use of the possessor cannot be inconsistent with the owner’s use

Question 18

in the context of adverse possession, what is a unilateral mistake?

Answer 18

where the owner knows the adverse possessor is trespassing, but the possessor is mistaken in believing that they are possessing in good faith (e.g., believe they have the title)

Question 19

What does the court think about unilateral mistakes?

Answer 19

Laskin: the law should protect good faith reliance on boundary errors or at least the settled expectations of innocent adverse possessors who have acted on the assumption that their occupation will not be disturbed

Could make the argument that the owner (who knows the trespasser is there) is sleeping on their rights

Question 20

What is the doctrine of the colour of title?

Answer 20

If a person enters land under a defective title (e.g., a deed that is wrong) and adversely possesses part of the land, they will gain title over all of it (possession must be as open, actual, exclusive, notorious as when claimed without colour)

Without a deed, they would only be entitled to the area they had actually possessed

Question 21

Does adverse possession include easements?

Answer 21

No, Wilkes v Greenway says that there is no creation of ‘ways of necessity’

sounds kind of like the same argument about why you only get the land you adversely possess and not the surrounding land

Question 22

Which doctrine recognizes there are two types of trespassers?

Answer 22

The doctrine of colour of title recognizes there is a difference between those who know they are trespassing and those who do not

Question 23

true or false: When claiming possessory title, inconsistent use is related to the owner’s future use of the land?

Answer 23

False, inconsistent use refers only to the current use and not to any future use