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Real Property - Adverse Possession

Pepper v. Brooker (Ont CA, 2017)

Here the Court of Appeal engages in an extended adverse possession analysis in the course of which it states the key elements of this title claim as follows:
[32] All issues raised on this appeal turn on the correctness of the trial judge’s application of the law of adverse possession. The elements of adverse possession were recently stated in McClatchie v. Rideau Lakes (Township), 2015 ONCA 233 (CanLII), 333 O.A.C. 381, in which Rouleau J.A. said at paras. 9-11:
…To establish adverse possession of certain lands, a claimant must demonstrate that throughout the ten-year adverse possession period, he or she: a) had actual possession of the lands in question; b) had the intention of excluding the true owner from possession; and c) effectively excluded the true owner from possession: Masidon Investments Ltd. v. Ham (1984), 1984 CanLII 1877 (ON CA), 45 O.R. (2d) 563 (Ont. C.A.), at p. 567.

An adverse possession claim will fail unless the claimant meets each of the three criteria, and time will begin to run against the true owner of the lands only from the last date when all three are satisfied: Masidon, at p. 567.

To establish actual possession, the acts of possession must be "open, notorious, peaceful, adverse, exclusive, actual and continuous": Teis v. Ancaster (Town) (1997), 1997 CanLII 1688 (ON CA), 35 O.R. (3d) 216 (Ont. C.A.), at p. 221. If any one of these elements is missing at any time during the statutory ten-year period, the claim for possessory title will fail: Teis, at p. 221. [Emphasis added.]


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