What is Adverse Possession?

Adverse possession describes the case where a third party, a ‘squatter’, gains lawful title to your land, because he/she enjoyed actual possession and use of it, without interruption or deceit and did so openly and obviously for a set period of time. When it comes to provincial land, the squatter must show that he used the land openly, visibly and publicly and had total control and possession over it for 40 years, with no breaks in between. For private land, the time period is reduced to 20 years of continuous occupation and use.

Obtaining a valid and legal title to a land through adverse possession is possible in some Canadian provinces. The basis behind this law is to penalize those who are ignorant of their land and are not using it constructively. However, some provinces don’t allow a squatter to obtain a title to land, no matter how long his/her occupation and use of it. In regions where adverse possession is recognized by law, the following conditions need to be met:

• Nothing short of intention to possess the land will suffice on part of the squatter. Irregular use does not constituted adverse possession.
• Breaks in possession and use will not always invalidate a plea for adverse possession, as long as obvious acts of ownership are present.
• The squatter must prove that his possession of the land was open, adverse, notorious, exclusive, actual and continuous.
• The squatter’s presence on the land should not be with the true owner’s permission.
• It need not be proved that the adverse possessor was aware of the nature of his possession as long as he/she was in possession and the true owner was not.
• A squatter can only adversely possess the part of land under actual occupation and mere visits by true owner may not be sufficient to interrupt the squatter’s possession.
• If another squatter occupies the land after the first one departs, the time period can continue running against the true owner if there was no real break in occupation.
• The absence of occupation and possession during harsh weather does not invalidate an adverse possession claim as long as it was impractical to possess the land during such time.

While every case is decided depending on the particular facts and circumstances, some of the cases where adverse possession was recognized include:

• Maintaining a garden, putting up fences and grazing animals.
• Constructing a house and a barn.
• Constructing a fishing shack.
• Frequent use of land as parking space