You can still lose land through squatter’s rights
Over 99 per cent of the land in Ontario is now registered in the government protected system of land titles. However, that does not mean that your boundary lines are always protected. It is still possible to lose land based on the concept of adverse possession, or as we used to call it, squatter’s rights.
Here’s a recent example.
Leslie Truxa and Lydia Sani bought a home in Toronto in 1989. Their driveway extends to the tip of the home to the north of theirs. Their side door opens into the driveway area. According to their evidence and the evidence of a predecessor of theirs on title, they had always used the entire driveway area, believing it to be their property.
Morgan and Leslie Reiner bought the home to the north of Truxa and Sani in December of 2005. They later started to build a new house. In the course of building, they hired a surveyor to prepare a new survey for the property. The survey showed that Reiner’s title actually extended about one foot into the driveway used by Truxa and Sani. They demanded that the driveway be removed. They both ended up in court.
In a decision dated September 24, 2013, Judge Eva Frank ruled in favour of Truxa and Sani, and confirmed the rules for claiming title by possession:
1. There must be actual possession for the statutory period, in this case, ten years, by themselves or those through whom they claim;
2. Such possession was with the intention of excluding from possession the owner or persons entitled to possession; and
3. Discontinuance of possession for the statutory period by the owner and all others, if any entitled to possession.
Both of these homes were registered in the old Registry System until 2001, when they were moved by the government into the Land Titles System. About 65 per cent of the homes in Ontario belong in this category, called Land Titles Conversion Qualified. To prove the claim, Truxa and Sani had to prove that they or their predecessor in title had used the land continuously for at least 10 years prior to 2001 and excluded the owners of the home to the north for the entire period. This was proven from the evidence.
However, the possession was actually based on a mistake, as everyone just assumed the property line was the edge of the driveway. The judge confirmed other prior cases that held that “the law should protect good faith reliance on boundary errors of innocent adverse possessors who acted on the assumption that their occupation will not be disturbed. Conversely, the law has always been less generous when a knowing trespasser seeks its aid to dispossess the rightful owner.”
What this means is that if you know that you don’t own the land to the boundary line and are trying to take it by possession, the burden of your proof will be more strict than if it happened through honest error, as was the case here.
An interesting question is whether Truxa and Sani would have been compensated by title insurance if they lost the use of the one foot as a result of the survey. In my opinion, if they had no knowledge of the error when they took title, and the problem was discovered later, then they would be entitled to compensation, based on the loss of value to their lands in not having use of the extra foot. However, if the Reiners made a claim, then in my opinion they would not be successful as they probably thought that they did not own the extra land when they bought the property in the first place.
What are the lessons of this case?
•Have a survey prepared when you buy a home, to learn if there are any boundary issues before you close your deal;
•Don’t assume that you have “stolen” land, just based upon years of use. A lot will depend on where and when the land was registered in the land titles system. Always seek legal advice before making any claim.
Mark Weisleder is a lawyer, author and speaker to the real estate industry. You can contact Mark at firstname.lastname@example.org