Adverse Possession - What's Yours is Mine

Matthew E. Hewson, Edmonton

Even if it is your land, over time, it may become somebody else’s.  This is the effect of the law of adverse possession. 

Adverse possession arises when somebody occupies the land of another (sometimes referred to as squatter’s rights).  This can occur in many situations, including a mistakenly placed fence line, a misplaced building or even an adverse possessor simply occupying otherwise vacant land – it could even be a person living on the land you own but don’t make it out to very often. 

The point is that it is possible for an adverse possessor to attain an interest in the registered owner’s land just by occupying it.  The key is the occupier possessing the land for long enough (typically 10 years).

The recent case of 1215565 Alberta Ltd. v. Canadian Wellhead Isolation Corp., 2012 ABQB 145 (“Wellhead”) summarizes and interprets the law of adverse possession in light of changes to the Limitation of Actions Act of Alberta.

Wellhead involves a misplaced fence line, put there by predecessors in title.  Shortly before the expiration of the 10 year limitation period (the statutory length of time possession must have occurred for), the owner by title of the disputed lands became aware of the error.  However, he did not do enough to assert his rights within the time limits.  There are a number of key points to take away from the case:

1. The limitation period for the person being adversely possesesd against begins on the transfer of title; because of the Torrens system in Alberta, a purchaser can typically rely on the title they are given.  As an aside, if the adverse possessor sells land they adversely possess, the buyer buys the portion of time the adverse possessor has into the possession.

2. For the adverse possession to be effective to get title:

(a)             the true owner must be out of possession of the lands;

(b)             the claimant must be in use and occupation of the claimed lands;

(c)             the claimant’s use and occupation must be exclusive, continuous, open or visible and notorious for the 10 year period; and

(d)             the belief, ignorance, mistake or intention of the claimant is immaterial.

1. The main ways to deal with an adverse possessor within the 10 years is to:

(a)             re-enter the property in order to recover possession;

(b)             get an acknowledgment of title from the person in possession of the property (i.e. an Encroachment Agreement); or

(c)             take proceedings to recover the property.

One of the main issues in Wellhead was whether the titled owner re-entered to recover possession.  There must be more than a mere entry.  In Wellhead, there were entries to take measurements and such; and this was evidence of an intention to recover possession, but was not an actual act of recovering possession:

It is my view that to be effective any entry must be accompanied by an overt act or acts which objectively show the intention to recover the land then and there. Just as the possession of the Plaintiff had to be open and notorious as against the Defendant and the world, the acts of the Defendant, if it relies on entry to recover the land, should be unequivocal. (at para. 34)

When your land is at stake, it is best not to dawdle but critical to properly assert your ownership in time.  Part of being able to assert your rights is knowing they are being violated.  As such, owners must continually monitor their lands and property boundaries.  This is especially important on what would be otherwise vacant lands. 

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