{"id":41936,"date":"2025-12-04T12:01:51","date_gmt":"2025-12-04T17:01:51","guid":{"rendered":"https:\/\/www.millerthomson.com\/?p=41936"},"modified":"2025-12-04T12:01:53","modified_gmt":"2025-12-04T17:01:53","slug":"adverse-possession-of-municipal-lands-what-the-kosicki-v-toronto-decision-means-for-ontario-municipalities","status":"publish","type":"post","link":"https:\/\/www.millerthomson.com\/en\/insights\/real-estate\/adverse-possession-of-municipal-lands-what-the-kosicki-v-toronto-decision-means-for-ontario-municipalities\/","title":{"rendered":"Adverse possession of municipal lands: What the Kosicki v. Toronto<\/i> decision means for Ontario municipalities"},"content":{"rendered":"\n

Until recently, municipal parkland across Ontario was long seen as immune from adverse possession or \u201csquatter\u2019s rights\u201d. From large cities to rural hamlets, the edges of parks and trails are rarely monitored, and private encroachments are common \u2013 an owner may extend a backyard garden or mowed area, or erect a shed or storage pile which results in a minor encroachment. Municipalities have generally taken action on major encroachments, but they did not fear the permanent loss of parkland and felt secure that they held the power in deciding on what terms to permit encroachments.<\/p>\n\n\n\n

That dynamic has changed this year. The Supreme Court of Canada\u2019s decision in Kosicki v. Toronto (City)<\/em><\/a> has ended the common law protections, confirming that parkland is fully subject to adverse possession claims. This article explains what the ruling changes, why it matters, and how municipalities may need to adapt their monitoring and encroachment practices going forward.<\/p>\n\n\n\n

What is adverse possession and how does it apply in Ontario?\u00a0<\/h2>\n\n\n\n

Adverse possession is essentially a limitation deadline for a dispossessed owner of lands within the registry system to re-establish possession or sue for it. In Ontario, that deadline is 10 years from the date of \u201cdispossession\u201d. The traditional doctrine comes from case law, but it was gradually codified in the Real Property Limitations Act<\/em><\/a> (the \u201cRPLA<\/em><\/strong>\u201d) during the early 20th<\/sup> century. As part of the conversion of most Ontario land to the land titles system by 2010, the Land Titles Act<\/em><\/a> prevents any new<\/em> possessory rights from arising after that conversion, while protecting all claims of adverse possession that matured earlier.<\/p>\n\n\n\n

Cases applying adverse possession rely on a long-established common law test that requires a claimant to meet three criteria over the required 10 years:<\/p>\n\n\n

(a) Actual possession that is open, notorious, peaceful, adverse, exclusive, actual, and continuous, having regard to the nature of the disputed property;<\/strong><\/p>\n

This involves treating the property as an owner, without the true owner\u2019s consent. Enclosure with a fence is a strong indicator but not strictly required.<\/p>\n

(b) intention to exclude the true owner from possession; and <\/strong><\/p>\n

\u00a0<\/strong>This is inferred where both claimant and owner mistakenly believe that the claimant owns the land, or where the claimant makes the mistake and innocently acts as an owner.<\/p>\n

\u00a0(c) <\/strong>actual exclusion of the true owner.<\/strong><\/p>\n

\u00a0<\/strong>Where possession and intention are shown, this is sometimes inferred, and the owner generally needs to take some act to stop the limitation clock from running out.<\/p>\n\n\n

The central issue on the Kosicki<\/em> appeal was whether and how the law of adverse possession applies to municipal parkland that has been dedicated for public use or benefit. \u00a0<\/p>\n\n\n\n

What were the facts and the public benefit test leading the Kosicki <\/em>decision?<\/h2>\n\n\n\n

The facts in this case were straightforward.  The homeowners purchased a Toronto residential property in 2017. In 2021, the homeowners determined that a significant portion of their backyard was owned by the City of Toronto (\u201cCity<\/strong>\u201d). These \u201cdisputed lands\u201d back onto a City-owned laneway abutting a municipal park. The full area \u2013 including the disputed lands \u2013 had been expropriated by the Metropolitan Toronto and Region Conservation Authority in 1958 and conveyed to the City in 1971.  At some point between those years, prior owners had erected a fence that prevented public access in the decades since. City personnel had overlooked the City\u2019s title to the disputed lands, until the homeowners approached the City offering to purchase the lands (on which they had already been paying realty taxes). The City refused, in keeping with policies preserving parkland.<\/p>\n\n\n\n

In the resulting litigation, the application judge and Court of Appeal held that adverse possession of public parkland would be a dangerous precedent to allow (echoed in the dissenting opinion at the Supreme Court). One stated basis was that it would be unfair to require municipalities to watch their borders as carefully as a private landowner, as that would burden staff and taxpayers in municipalities across Ontario with the task of monitoring boundaries on hundreds or thousands of acres of parkland. The Court of Appeal also drew on past decisions to affirm a \u201cpublic benefit test\u201d standing in the way: adverse possession claims would not succeed against municipal lands acquired for the use or benefit of the public, unless the municipality had done something to waive those rights (the \u201cPublic Benefit Test<\/strong>\u201d). This analysis or instinct had appeared in several past Ontario decisions going back decades, including the Teis v. Ancaster<\/em> decision formulating the modern adverse possession test.<\/p>\n\n\n\n

How did the Supreme Court of Canada address the Public Benefit Test?<\/h2>\n\n\n\n

At the appeal to the Supreme Court, the City acknowledged that the homeowners satisfied the three-part adverse possession test but argued chiefly that the Public Benefit Test prevented adverse possession of the municipal parkland.<\/p>\n\n\n\n

The majority rejected this argument and found for the homeowners for two related groups of reasons. The majority found that:<\/p>\n\n\n\n