'Use it or lose it' under Land Titles System

Bob Aaron in Legal

Land Survey post

Is it possible to claim possessory title to a parcel of someone else’s land if the registered owner entered the property only once during the claimant’s 10 years of otherwise undisturbed occupation?

That was the question facing Justice Edward Morgan in a case which came before him this past June.

Theodoros Maras and Chrisoula Sourasis own a home at 2 Milton Rd., in Toronto. George Milianis owns 4 Milton Rd., to the north. Between the two houses is a driveway 70 feet long and 10 feet wide. Maras and Sourasis own the south three feet of the driveway. Milianis owns the north seven feet and has a right of way to use his neighbours’ portion of the land.

At the end of the driveway is a small triangular piece of land originally created to allow the owners of 4 Milton Rd. to turn into their garage. The triangle is entirely within the land owned by 2 Milton but many years ago the owners of 4 Milton fenced it off so that the title holders were excluded from this piece of their own land.

By law, if a person is excluded from his land for a period of 10 years prior to the date the registered title of that parcel was converted by the government from the old Registry Act system to the electronic Land Titles system, the person who has possession of the parcel will be able to claim squatter’s rights, technically known as adverse possession or possessory title.

A successful claim for adverse possession must show actual possession with the intention of excluding the true owner, and that the possession was open, obvious, continuous, exclusive and without permission.

In the Milton Rd. case, Milianis claimed title to the triangle by adverse possession. The period of possession had to crystallize before January, 2001, when title was converted to the Land Titles system. If Milianis could show continuous possession of the triangle for 10 years before that date, and he met the other tests, he would be entitled to a court order granting him ownership.

By January, 2001, the triangle was fenced in a way that suggests the owners of 2 Milton were completely deprived of access to the area. Unfortunately, it is currently impossible to establish a starting point for the exclusion.

Robert Gouinlock was the owner of 2 Milton from 1998 to 2007, when he sold it to the current owners. The fence was there when he bought the property yet he always considered the triangle to be part of his land.

If nothing happened to interrupt the exclusive possession of the triangle by the current and past owners of 4 Milton Rd. for 10 years from the date of Gouinlock’s purchase in 1988, adverse possession would have crystalized prior to the conversion to Land Titles in 2001. In that case, the owners of 2 Milton Road would have lost title to the triangle carved out of their land.

The only question for the court was whether he ever physically interrupted his neighbours’ exclusive possession.

At the trial, Gouinlock testified that on at least one occasion, in 1996, he entered the triangle to cut down some “swamp maple trees.” His testimony was not contested.

Based on that evidence, Justice Morgan found that the exclusive possession of the triangle by the owners of 4 Milton Rd. was interrupted and the 10-year period of adverse possession could not have displaced the owners of 2 Milton by the deadline of January, 2001.

The court ruled that the triangle at the west end of the driveway between the two properties belongs to Maras and Sourasis who own 2 Milton Rd. Milianis has no possessory title over this piece of land, and Maras and Sourasis were given the right to remove any fence on the land.

In late June, Justice Morgan ordered Milianis to pay his neighbours $31,500 in costs. Of course, he had to pay his own lawyer as well, making the attempt to gain ownership of a small parcel of his neighbours’ property a very expensive undertaking.

Bob Aaron is Toronto real estate lawyer. His Title Page column appears on this blog, Move Smartly, and in The Toronto Star. He can be reached at bob@aaron.ca , on his website aaron.ca, and on Twitter, @bobaaron2.

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