Chapter 7 Adverse Occupation
Many lawyers call this topic “adverse possession”. They are confused. You know two things about possession; (i) it is a form of property in things, (ii) it is not a form of property in land. The label does not describe a form of property; it describes an action which can have consequences with respect to property in land. The word adverse is clear. Possession has a specific meaning in law of property. Adverse occupation better describes the subject matter of this section without the confusion of the use of a property specific word such as possession.
Section 15 of the Limitations Act(1) contains the core principle of adverse occupation. It reads as follows:
15. At the determination of the period limited by this Act to any person for making an entry or distress or bringing any action, the right and title of such person to the land or rent, for the recovery whereof such entry, distress or action, respectively might have been made or brought within such period, is extinguished.
The basic idea of this section of the Act is simple. If a person stays on the land in which another person holds an estate for a time prescribed by the Limitations Act, the holder of the estate in land loses the right to bring an action to remove that person from the land.. The adverse occupier is at liberty to continue to occupy the land at the end of the limitation period, there being no one that can bring an action to inhibit that liberty; with the exception of Her Majesty. The adverse occupier does not acquire a form of property in land as a result of his adverse occupation.
Another statute, the Certification of Titles Act(2), makes it possible for a civil servant to make an adverse occupier the holder of property in land that he occupies. However under Section (3) of this act
3.This Act does not apply to land registered under the Land Titles Act. R.S.O. 1990, c. C.6, s. 3.
The amount of time that person must adversely occupy land is governed by statute. The Limitations Act(3) sets out a time period. Sections 4 and 5(1) define the duration of the limitation period and the time at which the limitation period runs begins to run.
4. No person shall make an entry or distress, or bring an action to recover any land or rent, but within ten years after the time at which the right to make such entry or distress, or to bring such action, first accrued to some person through whom he claims, or if the right did not accrue to any person through whom he claims, then within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to the person making or bringing it.
5(1) Where the person claiming such land or rent, or some person through whom he claims, has, in respect of the estate or interest claimed, been in possession or in receipt of the profits of the land, or in receipt of the rent, and has, while entitled thereto, been dispossessed, or has discontinued such possession or receipt, the right to make an entry or distress or bring an action to recover the land or the rent shall be deemed to have first accrued at the time of dispossession or discontinuance of possession, or at the last time at which any such profits or rents were so received.
In section 5(1) "dispossessed" refers to an action of the adverse occupier. A common example of this would be the continued use and occupation of the land as if one were the holder of an estate in that land. Discontinuance refers to an action on the part of the holder of an estate in the land in question. This would include an action such as abandonment.
5(7) Where a person is in possession or in receipt of the profits of any land, or in receipt of any rent, as tenant at will, the right to the persons entitled subject thereto, or of the person through whom he claims, to make an entry or distress, or to bring an action to recover the land or rent, shall be deemed to have first accrued either at the determination of the tenancy, or at the expiration of one year next after the commencement of the tenancy, at which time the tenancy shall be deemed to have determined.
Section 4 of the Act sets out a limitation period. Section 5(1) of the Act defines when the 10 years begins to run. Simply put, the time starts to run at the first time at which the holder of an estate could have brought an action to expel the other person from the land or to claim the profits from the land Section 5(7) deals with a situation where an estate holder has allowed a person to occupy land. The effect of this section is to increase the limitation period to a maximum of 11 years. The first year that the person occupies the land as a tenant at will does not count as time against the limitation period. The limitation period will start to run either (i) when the estate holder orders the occupier to leave the land or (ii) one year after the person occupies the land with the permission of the estate holder.
In the case of Crown land, the limitation period is sixty years. [s. 3 of the Limitations Act]. What do you think happens at the end of the 60 year period?
In Ontario it is important to consider s. 54(1) of the Land Titles Act.(4)
54(1) Notwithstanding any provision of this Act, the Limitations Act, or any other Act, no title to and no right or interest in land registered under this Act that is adverse to or in derogation of the title of the registered owner shall be acquired hereafter or deemed to have been acquired heretofore by any length of possession or by prescription.(5)
Consider the following situation. A holds an estate in fee simple in a large piece of land. B has occupied a small section of that land for 15 years. A has known about B's occupation and has done nothing. Does A lose the right to remove B only from the section of that land that B has occupied, or does A lose the right to remove B from any portion of that land that B has occupied, as that land was defined in the grant. Can A still bring an action to remove B from a different portion of that land? In the alternative, does B's adverse occupation on a small portion of that land extinguish any claim that A might have to any section of that land?
The answer to this involves a concept known as "colour of title". If B had entered and remained on the land under the belief that he was the holder of an estate in the land his occupation of the small portion of the land would include all of the land described in the grant. This doctrine only applies where B believes that he has acquired an estate in the land, but in fact that estate was held by A. In any other situation A would only lose the right to remove B from that portion of the land that B had occupied
Also, if B is at liberty to remain on the land after the time period prescribed, A no longer holds an estate in that land (whether it is a small portion of the land described in the original grant or the whole of the land described in the original grant), and the aforementioned civil servant makes B the holder of the estate in land, is this another way to create a fee simple? Yes. It is obvious that the Legislature can accomplish any such result by legislation, so you must be open to the possibilities that (1) maybe a legislature already did + (2) maybe a legislature will do so next week.
C) What is Occupation?
What about a person who camps every year? Or every weekend for the limitation period? Or sleeps there every night but is gone all day?
What did the Legislature mean by Crown land? Is it land that was never granted by the crown to anyone and is not part of treaty lands? Does this mean that a 60 year occupation of such land nullifies the Crown’s right to remove the occupier but it does not grant the occupier an estate in the land? If the effect were the same as for any other estate holder, the Crown would no longer hold an estate in the land, but the Crown holds ownership. Could the occupier acquire ownership by proclaiming himself king of that land?
2. R.S.O. 1990, c. C-6, s. 4(2).
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5. It would seem that all forms of property in land registered
under the Land Titles Act are immune from extinguishment based on
a claim of adverse occupation.
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