Suing for Adverse Possession

Land Titles Qualified

Harmur Investments Ltd. (“Harmur”) and Katherine Lillian Pearce (“Pearce”) owned neighbouring cottage properties on Calabogie Lake in the Township of Greater Madawaska.

• Harmur’s property: Lot 110 on Plan 156 (acquired by the Murphy family in 1943, transferred to Harmur in 1994).
• Pearce’s property: Lots 111 and 112, purchased in 1975.
  Both properties were converted from the registry system to the land titles system on May 11, 1998, after which new adverse possession claims could no longer accrue.

Harmur sought a vesting order for ownership of two disputed areas on the Pearce property:

1. The Triangle – a 485 m² section near the northern boundary, crossed by Harmur’s driveway.
2. The Boathouse Parcel – an 80 m² strip on the lakeshore adjacent to Harmur’s boathouse.
   The dispute arose due to an old, irregular wire fence that mistakenly divided the lots.

Legal Test for Adverse Possession

To establish adverse possession under Ontario law (as reaffirmed in McCracken Estate v. Gatt, 2023 ONSC):

1. Actual Possession: Continuous, open, notorious, peaceful, adverse, and exclusive possession for at least 10 years before conversion to land titles.
2. Intention to Exclude: Possession must show an intention to exclude the true owner (or a mutual mistake as to ownership must exist).
3. Discontinuance of Possession: The true owner must be out of possession during the statutory period.

Court’s Analysis and Decision

1. Boathouse Parcel – Claim Succeeds

• Actual Possession: Proven through photos and testimony showing continuous use since the 1940’s, access to the boathouse, swimming, storage, landscaping, and maintenance.
• Intention to Exclude: A mutual mistake existed, the Pearces believed the Murphys owned this area, rarely visited it, and made no effort to assert ownership for nearly 50 years.
• Exclusion: Pearce had visited the area only once (by invitation), and there was no access from her cottage.
  Result: Harmur successfully established possessory title to the Boathouse Parcel.

2. The Triangle – Claim Fails

• Actual Possession: Established, the Murphys used and maintained the area, including paving the driveway.
• Intention to Exclude: Not proven. The Murphys, a family of lawyers, could have easily determined the true boundary from the registered plan. No evidence of mutual mistake.
  • The Pearces allowed the Murphys to cross the area out of courtesy, suggesting permission rather than exclusion.
• Discontinuance: Not met, Pearce’s husband occasionally maintained the area, showing shared use.
  
  
• Result: Claim for the Triangle was dismissed.

Considerations

• Adverse possession remains fact-specific and requires clear proof of all three elements.
• A mutual mistake can replace proof of inconsistent use, but knowledgeable owners (especially professionals) are held to a higher standard.
• Conversion to the land titles system stops new adverse possession claims, but pre-conversion rights may survive if the title bears a Land Titles Conversion Qualified (LTCQ) qualifier.
• Preventive measures:
  • Obtain or update surveys and verify property boundaries.
  • Monitor and mark property lines clearly.
  • Challenge encroachments early.
  • Use written agreements for shared access.
  • Convert remaining registry lands to the land titles system.

Brian Madigan LL.B., Broker
www.OntarioRealEstateSource.com