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Real Property - Adverse Possession

Real Property - Easement by Necessity

McClatchie v. Rideau Lakes (Township) (Ont CA, 2015)

In this case the Court of Appeal reviewed the law of adverse possession in Ontario as follows:
[9] Before turning to the trial judge’s decision and the issues raised by the appellant, I will briefly review the law of adverse possession. This law is not in dispute. To establish adverse possession of certain lands, a claimant must demonstrate that throughout the ten-year adverse possession period, he or she: a) had actual possession of the lands in question; b) had the intention of excluding the true owner from possession; and c) effectively excluded the true owner from possession: Masidon Investments Ltd. v. Ham (1984), 1984 CanLII 1877 (ON CA), 45 O.R. (2d) 563 (C.A.), at p. 567.

[10] An adverse possession claim will fail unless the claimant meets each of the three criteria, and time will begin to run against the true owner of the lands only from the last date when all three are satisfied: Masidon, at p. 567.

[11] To establish actual possession, the acts of possession must be “open, notorious, peaceful, adverse, exclusive, actual and continuous”: Teis v. Ancaster (Town) (1997), 1997 CanLII 1688 (ON CA), 35 O.R. (3d) 216 (C.A.), at p. 221. If any one of these elements is missing at any time during the statutory ten-year period, the claim for possessory title will fail: Teis, at p. 221.

[12] If the claimant acknowledges the right of the true owner, then possession will not be adverse. Acknowledgment of title will thus stop the clock from running: Teis, at p. 221; Goode v. Hudon (2005), 30 R.P.R. (4th) 202 (Ont. S.C.), at para. 184; 1043 Bloor Inc. v. 1714104 Ontario Inc., 2013 ONCA 91 (CanLII), 114 O.R. (3d) 241, at para. 73.[3] Legislation likewise makes this clear. Section 13 of the Real Property Limitations Act, R.S.O. 1990, c. L.15, provides that a written and signed acknowledgment of title to land resets the clock for an adverse possession claim over that land.

[13] An agreement regarding one part of a property that the parties do not contemplate as applying to another part will not constitute an acknowledgement sufficient to interrupt adverse possession on that latter part: Tasker v. Badgerow, 2007 CanLII 23362 (ON SC), 2007 CanLII 23362 4086 (Ont. S.C.), at paras. 47-49, aff’d on other grounds 2008 ONCA 202 (CanLII).
On the issue of easement by necessity the Court stated:
[48] Easements of necessity are easements presumed to have been granted when the land that is sold is inaccessible except by passing over adjoining land retained by the grantor. The concept arises from the premise that the easement is an implied grant allowing the purchaser to access the purchased lot. See Nelson v. 1153696 Alberta Ltd., 2011 ABCA 203 (CanLII), 46 Alta. L.R. (5th) 113, at paras. 40-43, leave to appeal to S.C.C. refused, [2011] S.C.C.A. No. 423; and Dobson v. Tulloch (1994), 1994 CanLII 7239 (ON SC), 17 O.R. (3d) 533 (C.J. (Gen. Div.)), aff’d (1997), 1997 CanLII 14542 (ON CA), 33 O.R. (3d) 800 (C.A.).

[49] Necessity is assessed at the time of the original grant: Nelson, at para. 42; Dobson, at p. 541.
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