Real Property - Adverse Possession. Vivekanandan v. Terzian
In Vivekanandan v. Terzian (Ont CA, 2020) the Court of Appeal commented as follows on the law of adverse possession:
 As the application judge correctly stated, to establish title by adverse possession, the respondents had the burden of proving:. McClatchie v. Rideau Lakes (Township)
(i) actual “open, notorious, constant, continuous, [and] peaceful” possession of the backyard portion of the disputed strip for the statutory period of ten years in accordance with s. 4 of the Real Property Limitations Act, R.S.O. 1990, c. L.15;
(ii) that such possession was with the intention of excluding the true owner; and
(iii) that the true owner’s possession was effectively excluded for the statutory period.
(See Masidon Investments Ltd. v. Ham (1984), 1984 CanLII 1877 (ON CA), 45 O.R. (2d) 563 (C.A.), at p. 567, leave to appeal refused,  S.C.C.A. No. 232; Barbour, at paras. 35-36.)
In McClatchie v. Rideau Lakes (Township) (Ont CA, 2015) the Court of Appeal reviewed the law of adverse possession in Ontario as follows:
 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.On the issue of easement by necessity the Court stated:
 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.
 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.
 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. 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.
 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).
 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,  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.).. Pepper v Brooker
 Necessity is assessed at the time of the original grant: Nelson, at para. 42; Dobson, at p. 541.
In Pepper v. Brooker (Ont CA, 2017) the Court of Appeal engages in an extended adverse possession analysis in the course of which it states the key elements of this title claim as follows:
 All issues raised on this appeal turn on the correctness of the trial judge’s application of the law of adverse possession. The elements of adverse possession were recently stated in McClatchie v. Rideau Lakes (Township), 2015 ONCA 233 (CanLII), 333 O.A.C. 381, in which Rouleau J.A. said at paras. 9-11:. Sipsas v. 1299781 Ontario Inc.
…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 (Ont. C.A.), at p. 567.
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.
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 (Ont. 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. [Emphasis added.]
In Sipsas v. 1299781 Ontario Inc. (Ont CA, 2017) the Court of Appeal canvasses the law of adverse possession of land:
 The trial judge applied the three-part test from this court’s decision in Masidon Investments Ltd. v. Ham (1984), 1984 CanLII 1877 (ON CA), 45 O.R. (2d) 563 (C.A.), leave to appeal refused,  S.C.C.A. No. 232. In that case the court held that an adverse possession claimant must have:. Nelson (City) v. Mowatt
(1) had actual possession;
(2) had the intention of excluding the true owner from possession, and
(3) effectively excluded the true owner from possession.
 Although title to lands registered in Land Titles cannot be obtained by adverse possession following the registration of title, title may be obtained by adverse possession that can be established for a continuous period of 10 years prior to registration: s. 51(2) of the Land Titles Act, R.S.O. 1990, c. L.5 and s. 4 of the Real Property Limitations Act, R.S.O. 1990, c. L.15. Thus, as the trial judge found, the appellants were required to establish that the Hendricks adversely possessed the disputed lands for any 10-year period ending October 21, 2001.
 It is clearly arguable that the Hendricks’ use of the disputed lands was sufficient to establish actual possession. The Supreme Court recently reiterated that the requirement that a claimant have actual “possession” does not require continuous occupation: Nelson v. Mowatt, 2017 SCC 8 (CanLII),  S.C.J. No. 8, at para. 31. The Hendricks could be said to have used the disputed lands as a backyard, and backyards are necessarily used on a seasonal basis. But even assuming that the actual possession requirement were satisfied, the appellants’ claim would fail on the second step of the Masidon test.
 The appellants were required to establish that the Hendricks intended to use the disputed lands in a manner inconsistent with the rights of Thompson and the use she intended to make of it. There is no question that the “inconsistent use” test makes it more difficult for claimants of adverse possession to establish an intention to exclude, especially where, as in this case, the intentions of the true owner of the disputed lands are unknown.
 The appellants sought to avoid this problem by arguing that this was a case of mutual mistake, rendering the inconsistent use test irrelevant: see Teis v. Ancaster (Town) (1997), 1997 CanLII 1688 (ON CA), 35 O.R. (3d) 216 (C.A). However, a mutual mistake cannot be established on this record. It was not established that Thompson was mistaken about anything at all. The appellants could do no more than suggest it was possible that Thompson also believed that the disputed lands were owned by the Hendricks.
 At the hearing of the appeal, the appellants sought to characterize this as a case of unilateral mistake, submitting that the Hendricks mistakenly believed that they owned the disputed land.
 As noted in Barbour v. Bailey, 2016 ONCA 98, 345 O.A.C. 311, at para. 43, this court has not determined whether inconsistent use is necessary in cases of unilateral mistake, although there is Superior Court authority that supports the proposition that it is not: see Marotta v. Creative Investments Ltd.,  O.J. No. 1399, 69 R.P.R. (4th) 44 (S.C.).
In this BC case, Nelson (City) v. Mowatt (SCC, 2017), the Supreme Court of Canada's analysis is relevant to the common law of adverse possession generally across Canada, particularly on the issue of 'inconsistent use':
 Adverse possession is a longstanding common law device by which the right of the prior possessor of land, typically the holder of registered title and therefore sometimes referred to as the “true owner”, may be displaced by a trespasser whose possession of the land goes unchallenged for a prescribed period of time. From as early as The Limitation Act, 1623 (Eng.), 21 Jas. 1, c. 16, the prior possessor’s right to recover possession was curtailed by limitation periods. This rule allowing for the later possessor acquiring ownership of land after the passage of a certain time was codified in English law by the Real Property Limitation Act, 1833 (U.K.), 3 & 4 Will. 4, c. 27, which was received into the law of British Columbia on November 19, 1858 by operation of what is now s. 2 of the Law and Equity Act, R.S.B.C. 1996, c. 253. Since then, British Columbia’s successive limitation statutes, including the provisions which I have already canvassed and which govern the Mowatts’ claim, have effectively reproduced the 1833 English statutory codification of adverse possession. Under those statutes, the limitation period began to run at the point in time at which the true owner’s right to recover possession first arose: the date of dispossession or discontinuance of possession (see for example s. 17 of the Statute of Limitations (1924)), as determined by the test for adverse possession.The court also commented that 'possession' of real property need not be continuous in order to remain legally valid:
 As to that test, the elements of adverse possession, all of which must be present to trigger the running of the limitation period against the “true owner”, are explained by Professor Ziff in Principles of Property Law (6th ed. 2014), at p. 146. In brief, the act of possession must be “open and notorious, adverse, exclusive, peaceful (not by force), actual (generally), and continuous” (ibid. (footnote omitted)). Significantly for this case, the adverse possessor who successfully obtains title need not always be the same person whose adverse possession triggered the running of the limitation period; successive adverse possessors can “tack” on to the original adverse possession, provided that the possession is continuous in the sense that there is always someone for the true owner to sue (Anger & Honsberger Law of Real Property (3rd ed. (loose-leaf)), by A.W. La Forest, ed., at §28:50).
 To these elements of adverse possession the City would add: that the possessor’s or possessors’ use of the disputed lot must have been inconsistent with the “true owner’s” present or future enjoyment of the land. Alternatively put, possession, to be truly adverse, must entail a use of the property that is inconsistent with the true owner’s intended use of the land. This “inconsistent use” requirement was stated by Lord Bramwell in Leigh v. Jack (1879), 5 Ex. Div. 264 (C.A.), at p. 273:
I do not think that there was any dispossession of the plaintiff by the acts of the defendant: acts of user are not enough to take the soil out of the plaintiff and her predecessors in title and to vest it in the defendant; in order to defeat a title by dispossessing the former owner, acts must be done which are inconsistent with his enjoyment of the soil for the purposes for which he intended to use it: that is not the case here, where the intention of the plaintiff and her predecessors in title was not either to build upon or to cultivate the land, but to devote it at some future time to public purposes. The plaintiff has not been dispossessed, nor has she discontinued possession, her title has not been taken away, and she is entitled to our judgment. [Emphasis added.] The inconsistent use requirement appears in the jurisprudence of Ontario (i.e., Keefer v. Arillotta (1976), 1976 CanLII 571 (ON CA), 13 O.R. (2d) 680 (C.A.); Fletcher v. Storoschuk (1981), 1981 CanLII 1724 (ON CA), 35 O.R. (2d) 722 (C.A.); John Austin & Sons Ltd. v. Smith (1982), 1982 CanLII 2074 (ON CA), 35 O.R. (2d) 272 (C.A.); Masidon Investments Ltd. v. Ham (1984), 1984 CanLII 1877 (ON CA), 45 O.R. (2d) 563 (C.A.); Gorman v. Gorman (1998), 1998 CanLII 17702 (ON CA), 110 O.A.C. 87; Brisebois v. Chamberland (1990), 1990 CanLII 6638 (ON CA), 1 O.R. (3d) 417 (C.A.); Hodkin v. Bigley (1998), 20 R.P.R. (3d) 9 (Ont. C.A.); Elliott v. Woodstock Agricultural Society, 2008 ONCA 648 (CanLII), 92 O.R. (3d) 711) and has also been applied in the appellate jurisprudence of Nova Scotia (Spicer v. Bowater Mersey Paper Co., 2004 NSCA 39 (CanLII), 222 N.S.R. (2d) 103) and Prince Edward Island (MacKinnon, Re, 2003 PESCAD 17 (CanLII), 226 Nfld. & P.E.I.R. 293). Its application has, however, been rejected in Alberta (Lutz v. Kawa, 1980 ABCA 112 (CanLII), 23 A.R. 9) and restricted in Newfoundland and Labrador to consideration as a relevant but not a required factor in determining whether adverse possession has been established (Maher v. Bussey, 2006 NLCA 28 (CanLII), 256 Nfld. & P.E.I.R. 308, at paras. 50-52). Before us, the City argued the merits of considering the (in)consistency between the putative adverse possessor’s intended use and the true owner’s intended use of land. I note that counter-arguments have been made to the effect that the inconsistent use requirement is unnecessary and undesirable (M. H. Lubetsky, “Adding Epicycles: The Inconsistent Use Test in Adverse Possession Law” (2009), 47 Osgoode Hall L.J. 497, at pp. 523-25). Indeed, it is no longer required in England, having been denounced as “heretical and wrong” by Lord Browne-Wilkinson in J. A. Pye (Oxford) Ltd. v. Graham,  UKHL 30,  A.C. 419, at para. 45.
 In my view, the question properly before this Court is not whether the inconsistent use requirement is necessary or desirable; we have received no submissions, for example, on whether it should continue to apply to claims based on adverse possession in Ontario. Rather, the question properly before us is whether it forms part of the law of British Columbia and therefore ought to have been applied by the courts below. I am of the opinion that the City cannot demonstrate that it does.
 As Lord Browne-Wilkinson observed in J.A. Pye, the inconsistent use requirement stated in Leigh appeared to revive the pre-1833 doctrine of adverse possession, under which “the rights of the paper owner were not taken away save by a ‘disseisin’ or an ouster and use of the land by the squatter of a kind which was clearly inconsistent with the paper title” (para. 33). That former concept of adverse possession had, however, been abolished in England by the Real Property Limitation Act, 1833, under which “the only question was whether the squatter had been in possession in the ordinary sense of the word [for the prescribed period of time]” (para. 35). Consequently, the requirement of showing an inconsistent use, not having formed part of the law of England at the date of its reception in British Columbia, was never necessary to establish dispossession under British Columbia’s subsequent limitations statutes, which essentially reproduced the 1833 English legislation.
 Nor has the inconsistent use requirement been imported into British Columbia by the courts. The Court of Appeal’s thorough review of this issue contains no suggestion that British Columbia’s courts have adopted the requirement of inconsistent use, and the City does not suggest otherwise. The City does, however, point to two decisions of this Court as “reflecting” the inconsistent use requirement: Dominion Atlantic Railway Co. v. Halifax and South Western Railway Co., 1946 CanLII 50 (SCC),  S.C.R. 107; and Ocean Harvesters Ltd. v. Quinlan Brothers Ltd., 1974 CanLII 149 (SCC),  1 S.C.R. 684.
 Dominion Atlantic involved a dispute over ownership of lands between the “true owner” and a lessee who had continued to use the land after the lease had expired. In a brief judgment for the Court, Kellock J. cited two alternative tests for possession (pp. 109-10): Lord O’Hagan’s statement in Lord Advocate v. Lord Lovat (1880), 5 App. Cas. 273, at p. 288 that possession must be considered in each case with reference to the peculiar circumstances, and Lord Bramwell’s inconsistent use requirement stated in Leigh. Neither test, however, was endorsed or applied, since Kellock J.’s decision hinged on the finding that the lessee had not maintained exclusive possession (p. 110), which would defeat an adverse possession claim under either test.
 In Ocean Harvesters, oceanfront land was used by the true owner for receiving fresh fish. He permitted his company (he was president and controlling shareholder) to occupy it during the fishing season each year, and the question arose whether he was barred from asserting title to the land by operation of The Limitation of Actions (Realty) Act, R.S.N. 1952, c. 145, after the company had been in possession thereof for more than 21 years. While this Court considered the intended use of the true owner, this was due to the unusual circumstance in which his intention was also animating the later possessor, which he controlled. That is, in order to determine the company’s intention in this case, the Court had to consider the true owner’s intention so that it could be imputed to the company. But this is not the same thing as assessing the true owner’s intention so that it can be measured against the later possessor’s intention for inconsistency. In any event, the adverse possession claim in Ocean Harvesters, like that in Dominion Atlantic, was dismissed not for a lack of inconsistent use but for want of exclusive possession (Ocean Harvesters, p. 691; Dominion Atlantic, p. 110).
 In neither of these decisions, therefore, can this Court be said to have adopted, whether explicitly or by implication, the inconsistent use requirement. It also bears mentioning that this Court has also considered adverse possession claims on several occasions since Leigh (i.e., Sherren v. Pearson (1887), 14 S.C.R. 581; Handley v. Archibald (1899), 30 S.C.R. 130; Wood v. LeBlanc (1904), 1904 CanLII 71 (SCC), 34 S.C.R. 627; and Hamilton v. The King (1917), 1917 CanLII 621 (SCC), 54 S.C.R. 331), without ever expressing or applying an inconsistent use requirement.
 Further, introducing the inconsistent use requirement into the test for adverse possession would revive the pre-1833 necessity of showing a disseisin or an ouster, explicitly removed by statute. While courts have a role in defining what constitutes dispossession under British Columbia’s limitations legislation, legislative intent must be respected. The Court of Appeal was correct to hold (at para. 68) that “the [inconsistent use] doctrine does not accord with the legislation in this Province which has continued to accord with the 1833 English limitations legislation”. It follows that the inconsistent use requirement forms no part of the law of British Columbia governing adverse possession. Whether the requirement is properly applicable in other provinces remains an open question subject to examination of their respective legislative histories, the wording of their particular limitations statutes, and the treatment of these matters by the courts of those provinces.
 As to whether the chambers judge confused possession with occupation, I acknowledge that “possession” does not require continuous occupation. The common law recognizes that a person may possess land in a manner sufficient to support a claim to title while choosing to use it intermittently or sporadically (R. v. Marshall, 2005 SCC 43 (CanLII),  2 S.C.R. 220, at para. 54). In short, property can be possessed without being at all times occupied. And, I also acknowledge that the chambers judge’s repeated use of the term “occupation” (as opposed to “possession” — see, e.g., BCSC #1, paras. 109 and 112 and BCSC #2, paras. 3, 46 and 52 (CanLII)) lends support to the Mowatts’ argument that he confused these two distinct concepts.. 2279088 Ontario Inc. v. Nisbet
In 2279088 Ontario Inc. v. Nisbet (Ont CA, 2018) the Court of Appeal, in dismissing the position of a party, clarifies two points on the doctrine of adverse possession:
 227 argues that the application judge applied an erroneous test for adverse possession. It submits that Keefer v. Arillotta (1976), 1976 CanLII 571 (ON CA), 13 O.R. (2d) 680 (C.A.) created a “modified test” when “one claims adverse possession to lands subject to others’ rights of way.” 227 relies on the following passage from the reasons of Wilson J.A. (as she then was), at pp. 691-692:. Armstrong v. Moore
The onus of establishing title by possession is on the claimant and it is harder for a claimant to discharge this onus when he is on the property pursuant to a grant from the owner. It was held in Littledale v. Liverpool College,  1 Ch. 19, that acts done on another's land may be attributed to the exercise of an easement, even an excessive exercise of an easement, rather than to adverse possession of the fee. This passage does not bear the interpretation urged upon us by 227. Wilson J.A. did not modify the requirements for adverse possession in cases involving pre-existing easements; she merely observed that it will be more difficult from an evidentiary perspective to establish the pre-conditions in these circumstances. As is clear from this excerpt, a stricter approach prevents easements from maturing into title too easily.
In Pflug and Pflug v. Collins, 1951 CanLII 80 (ON SC),  O.R. 519 at p. 527,  3 D.L.R. 681 at p. 689 [affirmed 1953 CanLII 368 (ON CA),  O.W.N. 140,  1 D.L.R. 841], Mr. Justice Wells (as he then was) made it clear that a person claiming a possessory title must establish (1) actual possession for the statutory period by themselves and those through whom they claim; (2) that 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. If he fails in any one of these respects, his claim fails. [Emphasis added.]
 227 further argues that the application judge erred by ignoring the doctrine of inconsistent use, whereby it must be proved that the claimant’s use of the land is inconsistent with the true owner’s present or future enjoyment of the land: see Keefer; and Masidon. We disagree.
 In Teis, Laskin J.A. observed, at para. 24, that inconsistent use is a “controversial element” of an adverse possession claim. This element, which was revived in Leigh v. Jack (1879), 5 Ex. Div. 264 (C.A.), at p. 273, has in more recent times been denounced by the House of Lords as “heretical and wrong”: see J. A. Pye (Oxford) Ltd. v. Graham,  UKHL 30,  1 A.C. 419, at para. 45. See also the discussion in Nelson (City) v. Mowatt, 2017 SCC 8 (CanLII),  1 S.C.R. 138, at paras. 17-27. Counsel for Mr. Nisbet argues that this court should dispense with this element of adverse possession once and for all.
In Armstrong v. Moore (Ont CA, 2020) the Court of Appeal considered the law of adverse possession:
 To succeed on a claim for adverse possession, a claimant must establish possession that is open, notorious, constant, continuous, peaceful and exclusive of the right of the true owner throughout a ten-year period: Real Property Limitations Act, R.S.O. 1990, c. L.15, s. 4. The claimant must prove: (i) actual possession of the land in issue; (ii) an intention to exclude the true owner from possession of their land; and (iii) effective exclusion of the true owner from possession of their land: Barbour v. Bailey, 2016 ONCA 98, 345 O.A.C. 311, at paras. 35-36; McKay v. Vautour, 2020 ONCA 16, at para. 7. The ten-year period of possession must have occurred entirely before the land was placed under the land titles system. Adverse possession cannot arise after that time but is preserved if already acquired: Land Titles Act, R.S.O. 1990, c. L.5, s. 51; McKay, at para. 6.
 However, the trial judge concluded that the Armstrongs had not established the second and third requirements: an intention to exclude and effective exclusion of the true owner from possession. For adverse possession, “[t]he element of adversity means that the claimant is in possession without the permission of the true owner”: Teis v. Ancaster (Town) (1997), 1997 CanLII 1688 (ON CA), 35 O.R. (3d) 216 (C.A.), at p. 221. Or, as the trial judge stated, in a claim for adverse possession “permission is fatal”. ...