Question:
A property was purchased back in August 2006. New owners have an amicable relationship with the former owners (who are also neighbours) and since purchasing the property from them, have allowed old owners to continue letting their cattle graze on the field in exchange for the trimming of the grass (they bail and use the hay). Old owners do not use the property during winter months. Present owners use it to gain access to their cottage during this time since the road is usually blocked with snow and is impassable.
Present owners just arrived this weekend at the cottage after a couple of months of not being there, only to find that their field and parking portion of the property (which they never use) has been tilled. Old owner confirmed that it was he who tilled the property because it was getting too weedy. Present owners don’t mind but the question is:
Could the neighbour and former owner of the property potentially claim adverse possession of the field portion of the property? He’s never indicated any intent to make a claim but the present owners want to take steps to avoid any problems that could arise from the present use of the property. Since the land recording system went to the Land Titles system around 2006, I know that titles governs over occupation but could there be a remote chance that a claim could be filed and won? If so, how can the present owners further protect themselves against a worst case scenario (apart from asking the neighbour to vacate)?
Answer:
This doesn’t appear to be adverse possession. If so, the new Owner would have been excluded from the lands. This appears at best to be prescriptive rights, that is, an acquisition of an easement.
You need 10 years for adverse possession, but 20 for prescriptive rights.
Could the neighbour and former owner of the property potentially claim adverse possession of the field portion of the property?
No, only a prescriptive easement.
He’s never indicated any intent to make a claim but the present owners want to take steps to avoid any problems that could arise from the present use of the property.
They don’t need to in this case, but there are some easy steps to take if ever required with respect to a property in Registry.
Since the land recording system went to the Land Titles system around 2006, I know that Land Titles governs over occupation, but could there be a remote chance that a claim could be filed and won?
No, when the property went into Land Titles that ended everything, unless there was already a vested claim which would be grandfathered.
The purchase was in 2006. That’s the earliest starting point. The property moved over into Land Titles in 2006, perhaps only a few months later. The claimant would need 20 years of uninterrupted and continuous use, without permission. The earliest that could be, would be 2026, however, Land Titles prevents new rights from accruing.
If so, how can the present owners further protect themselves against a worst case scenario (apart from asking the neighbour to vacate)?
This is simply hypothetical, but a good way to prevent a potential prescriptive easement from accumulating more time would be to grant permission. That assumes that the property is still in Registry.
Brian Madigan LL.B., Broker