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Real Property - Adverse Possession

Real Property - Possession

Nelson (City) v. Mowatt (SCC, 2017)

While it is a BC case, the Supreme Court of Canada's analysis here is relevant to the common law of adverse possession generally across Canada, particularly on the issue of 'inconsistent use':
[17] Adverse possession is a longstanding common law device by which the right of the prior possessor of land, typically the holder of registered title and therefore sometimes referred to as the “true owner”, may be displaced by a trespasser whose possession of the land goes unchallenged for a prescribed period of time. From as early as The Limitation Act, 1623 (Eng.), 21 Jas. 1, c. 16, the prior possessor’s right to recover possession was curtailed by limitation periods. This rule allowing for the later possessor acquiring ownership of land after the passage of a certain time was codified in English law by the Real Property Limitation Act, 1833 (U.K.), 3 & 4 Will. 4, c. 27, which was received into the law of British Columbia on November 19, 1858 by operation of what is now s. 2 of the Law and Equity Act, R.S.B.C. 1996, c. 253. Since then, British Columbia’s successive limitation statutes, including the provisions which I have already canvassed and which govern the Mowatts’ claim, have effectively reproduced the 1833 English statutory codification of adverse possession. Under those statutes, the limitation period began to run at the point in time at which the true owner’s right to recover possession first arose: the date of dispossession or discontinuance of possession (see for example s. 17 of the Statute of Limitations (1924)), as determined by the test for adverse possession.

[18] As to that test, the elements of adverse possession, all of which must be present to trigger the running of the limitation period against the “true owner”, are explained by Professor Ziff in Principles of Property Law (6th ed. 2014), at p. 146. In brief, the act of possession must be “open and notorious, adverse, exclusive, peaceful (not by force), actual (generally), and continuous” (ibid. (footnote omitted)). Significantly for this case, the adverse possessor who successfully obtains title need not always be the same person whose adverse possession triggered the running of the limitation period; successive adverse possessors can “tack” on to the original adverse possession, provided that the possession is continuous in the sense that there is always someone for the true owner to sue (Anger & Honsberger Law of Real Property (3rd ed. (loose-leaf)), by A.W. La Forest, ed., at §28:50).

[19] To these elements of adverse possession the City would add: that the possessor’s or possessors’ use of the disputed lot must have been inconsistent with the “true owner’s” present or future enjoyment of the land. Alternatively put, possession, to be truly adverse, must entail a use of the property that is inconsistent with the true owner’s intended use of the land. This “inconsistent use” requirement was stated by Lord Bramwell in Leigh v. Jack (1879), 5 Ex. Div. 264 (C.A.), at p. 273:
I do not think that there was any dispossession of the plaintiff by the acts of the defendant: acts of user are not enough to take the soil out of the plaintiff and her predecessors in title and to vest it in the defendant; in order to defeat a title by dispossessing the former owner, acts must be done which are inconsistent with his enjoyment of the soil for the purposes for which he intended to use it: that is not the case here, where the intention of the plaintiff and her predecessors in title was not either to build upon or to cultivate the land, but to devote it at some future time to public purposes. The plaintiff has not been dispossessed, nor has she discontinued possession, her title has not been taken away, and she is entitled to our judgment. [Emphasis added.]
[20] The inconsistent use requirement appears in the jurisprudence of Ontario (i.e., Keefer v. Arillotta (1976), 1976 CanLII 571 (ON CA), 13 O.R. (2d) 680 (C.A.); Fletcher v. Storoschuk (1981), 1981 CanLII 1724 (ON CA), 35 O.R. (2d) 722 (C.A.); John Austin & Sons Ltd. v. Smith (1982), 1982 CanLII 2074 (ON CA), 35 O.R. (2d) 272 (C.A.); Masidon Investments Ltd. v. Ham (1984), 1984 CanLII 1877 (ON CA), 45 O.R. (2d) 563 (C.A.); Gorman v. Gorman (1998), 1998 CanLII 17702 (ON CA), 110 O.A.C. 87; Brisebois v. Chamberland (1990), 1990 CanLII 6638 (ON CA), 1 O.R. (3d) 417 (C.A.); Hodkin v. Bigley (1998), 20 R.P.R. (3d) 9 (Ont. C.A.); Elliott v. Woodstock Agricultural Society, 2008 ONCA 648 (CanLII), 92 O.R. (3d) 711) and has also been applied in the appellate jurisprudence of Nova Scotia (Spicer v. Bowater Mersey Paper Co., 2004 NSCA 39 (CanLII), 222 N.S.R. (2d) 103) and Prince Edward Island (MacKinnon, Re, 2003 PESCAD 17 (CanLII), 226 Nfld. & P.E.I.R. 293). Its application has, however, been rejected in Alberta (Lutz v. Kawa, 1980 ABCA 112 (CanLII), 23 A.R. 9) and restricted in Newfoundland and Labrador to consideration as a relevant but not a required factor in determining whether adverse possession has been established (Maher v. Bussey, 2006 NLCA 28 (CanLII), 256 Nfld. & P.E.I.R. 308, at paras. 50-52). Before us, the City argued the merits of considering the (in)consistency between the putative adverse possessor’s intended use and the true owner’s intended use of land. I note that counter-arguments have been made to the effect that the inconsistent use requirement is unnecessary and undesirable (M. H. Lubetsky, “Adding Epicycles: The Inconsistent Use Test in Adverse Possession Law” (2009), 47 Osgoode Hall L.J. 497, at pp. 523-25). Indeed, it is no longer required in England, having been denounced as “heretical and wrong” by Lord Browne-Wilkinson in J. A. Pye (Oxford) Ltd. v. Graham, [2002] UKHL 30, [2003] A.C. 419, at para. 45.

[21] In my view, the question properly before this Court is not whether the inconsistent use requirement is necessary or desirable; we have received no submissions, for example, on whether it should continue to apply to claims based on adverse possession in Ontario. Rather, the question properly before us is whether it forms part of the law of British Columbia and therefore ought to have been applied by the courts below. I am of the opinion that the City cannot demonstrate that it does.

[22] As Lord Browne-Wilkinson observed in J.A. Pye, the inconsistent use requirement stated in Leigh appeared to revive the pre-1833 doctrine of adverse possession, under which “the rights of the paper owner were not taken away save by a ‘disseisin’ or an ouster and use of the land by the squatter of a kind which was clearly inconsistent with the paper title” (para. 33). That former concept of adverse possession had, however, been abolished in England by the Real Property Limitation Act, 1833, under which “the only question was whether the squatter had been in possession in the ordinary sense of the word [for the prescribed period of time]” (para. 35). Consequently, the requirement of showing an inconsistent use, not having formed part of the law of England at the date of its reception in British Columbia, was never necessary to establish dispossession under British Columbia’s subsequent limitations statutes, which essentially reproduced the 1833 English legislation.

[23] Nor has the inconsistent use requirement been imported into British Columbia by the courts. The Court of Appeal’s thorough review of this issue contains no suggestion that British Columbia’s courts have adopted the requirement of inconsistent use, and the City does not suggest otherwise. The City does, however, point to two decisions of this Court as “reflecting” the inconsistent use requirement: Dominion Atlantic Railway Co. v. Halifax and South Western Railway Co., 1946 CanLII 50 (SCC), [1947] S.C.R. 107; and Ocean Harvesters Ltd. v. Quinlan Brothers Ltd., 1974 CanLII 149 (SCC), [1975] 1 S.C.R. 684.

[24] Dominion Atlantic involved a dispute over ownership of lands between the “true owner” and a lessee who had continued to use the land after the lease had expired. In a brief judgment for the Court, Kellock J. cited two alternative tests for possession (pp. 109-10): Lord O’Hagan’s statement in Lord Advocate v. Lord Lovat (1880), 5 App. Cas. 273, at p. 288 that possession must be considered in each case with reference to the peculiar circumstances, and Lord Bramwell’s inconsistent use requirement stated in Leigh. Neither test, however, was endorsed or applied, since Kellock J.’s decision hinged on the finding that the lessee had not maintained exclusive possession (p. 110), which would defeat an adverse possession claim under either test.

[25] In Ocean Harvesters, oceanfront land was used by the true owner for receiving fresh fish. He permitted his company (he was president and controlling shareholder) to occupy it during the fishing season each year, and the question arose whether he was barred from asserting title to the land by operation of The Limitation of Actions (Realty) Act, R.S.N. 1952, c. 145, after the company had been in possession thereof for more than 21 years. While this Court considered the intended use of the true owner, this was due to the unusual circumstance in which his intention was also animating the later possessor, which he controlled. That is, in order to determine the company’s intention in this case, the Court had to consider the true owner’s intention so that it could be imputed to the company. But this is not the same thing as assessing the true owner’s intention so that it can be measured against the later possessor’s intention for inconsistency. In any event, the adverse possession claim in Ocean Harvesters, like that in Dominion Atlantic, was dismissed not for a lack of inconsistent use but for want of exclusive possession (Ocean Harvesters, p. 691; Dominion Atlantic, p. 110).

[26] In neither of these decisions, therefore, can this Court be said to have adopted, whether explicitly or by implication, the inconsistent use requirement. It also bears mentioning that this Court has also considered adverse possession claims on several occasions since Leigh (i.e., Sherren v. Pearson (1887), 14 S.C.R. 581; Handley v. Archibald (1899), 30 S.C.R. 130; Wood v. LeBlanc (1904), 1904 CanLII 71 (SCC), 34 S.C.R. 627; and Hamilton v. The King (1917), 1917 CanLII 621 (SCC), 54 S.C.R. 331), without ever expressing or applying an inconsistent use requirement.

[27] Further, introducing the inconsistent use requirement into the test for adverse possession would revive the pre-1833 necessity of showing a disseisin or an ouster, explicitly removed by statute. While courts have a role in defining what constitutes dispossession under British Columbia’s limitations legislation, legislative intent must be respected. The Court of Appeal was correct to hold (at para. 68) that “the [inconsistent use] doctrine does not accord with the legislation in this Province which has continued to accord with the 1833 English limitations legislation”. It follows that the inconsistent use requirement forms no part of the law of British Columbia governing adverse possession. Whether the requirement is properly applicable in other provinces remains an open question subject to examination of their respective legislative histories, the wording of their particular limitations statutes, and the treatment of these matters by the courts of those provinces.
The court also commented that 'possession' of real property need not be continuous in order to remain legally valid:
[31] As to whether the chambers judge confused possession with occupation, I acknowledge that “possession” does not require continuous occupation. The common law recognizes that a person may possess land in a manner sufficient to support a claim to title while choosing to use it intermittently or sporadically (R. v. Marshall, 2005 SCC 43 (CanLII), [2005] 2 S.C.R. 220, at para. 54). In short, property can be possessed without being at all times occupied. And, I also acknowledge that the chambers judge’s repeated use of the term “occupation” (as opposed to “possession” — see, e.g., BCSC #1, paras. 109 and 112 and BCSC #2, paras. 3, 46 and 52 (CanLII)) lends support to the Mowatts’ argument that he confused these two distinct concepts.


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