Easy Livin’ in Canada—Adverse Possession is Only a Couple Elements Away

By: Douglas Johnson

United States citizens, particularly those living along the U.S.-Canada border in a state such as Michigan, have long seen Canada as quasi-foreign at most, because the landscape is similar and the people speak English. While it may be easy for Michiganders to treat a visit to Canada as if simply visiting a neighboring U.S. state, such treatment fails to see the reality of cultural and legal nuances that distinguish the two countries.[1] Notwithstanding the relative familiarity and comfort U.S. citizens feel while in Canada, there are sharp conceptual and developmental legal nuances between Canada and the U.S., the significance of which can easily distinguish the U.S.-Canada border from that of neighboring U.S. states.[2]

Practically, the differences in U.S. and Canadian law will not concern the average U.S. citizen on a day or weekend trip, and no hardship will befall him or her as result of such differences. Despite many small differences in property law between the two countries, there is no serious barrier to real property ownership for U.S. citizens in Canada. However, the doctrine of “adverse possession,” often referred to as “squatters rights” in the non-legal world, has been granted another significant element for consideration in some Canadian courts that is not present in U.S. adverse possession doctrine.[3]

Adverse possession is a legal doctrine that creates a legal avenue of ownership for a person to claim superior title to a landowner’s “otherwise neglected land” based on the person’s (adverse-possessor’s) long-term possession and use of the land.[4] In the U.S., looking at Michigan law specifically, one must have asserted their possession, through the satisfaction of the common law elements of adverse possession, for a period of fifteen years.[5] A  plaintiff, therefore, must establish, in addition to the statutory period, the following five common law elements of adverse possession: (1) actual possession, (2) continuous uninterrupted possession, (3) hostile in nature, (4) open and notorious, and (5) exclusive possession.[6] It is obvious then that adverse possession is a scary concept for real-property owners who for whatever reason acquire land and do not immediately utilize it. Unsurprisingly, Canada recognizes the doctrine of adverse possession as well, the application of which is nearly identical to the U.S. and thus does not at first glance seem to provide any sort of distinguishing criteria to consider when contemplating a land purchase in either the U.S., Michigan specifically, or Canada.

In Canada, adverse possession claims are governed by sections 4, 13, and 15 of the Real Property Limitations Act, R.S.O. 1990, c. L. 15 and common law.[7] Canada’s combination of statutory and common law as a foundation for the doctrine of adverse possession makes the law nearly equivalent to the U.S.’s from a practical application standpoint.[8] However, change may afoot, as the Supreme Court of Canada further addresses a possible additional element to adverse possession—“inconsistent use.”[9]

“Inconsistent use” is a simple concept that, in the context of adverse possession, would require the adverse possessor to use the real property in question in a manner ‘inconsistent’ with that of the owner’s intended use in order to prevail on such a claim.[10] The concept has been accepted in Nova Scotia and Prince Edward Island, and has been outrightly rejected in Alberta and  British Columbia, with the court in British Columbia stating that inconsistent use “forms no part of the law of British Columbia governing adverse possession.”[11] Relatively recently, in Mowatt, the Supreme Court of Canada rejected the concept of “inconsistent use” as being an element of adverse possession in British Columbia.[12] However, the court, in Mowatt, was careful to clarify that it was only speaking on the issue as it pertains to British Columbia, further stating that the issue was unaddressed at the Supreme Court level, and thus open, to a degree, in Ontario.[13] Therefore, in Ontario, with only a ten year statutory period requisite for bringing a claim of adverse possession, the claimant very well may need to show that his or her use of the land was “inconsistent” with that of the true owner.

In sum, adverse possession in Canada occurs in virtually the same way as it does in the U.S., with varying differences in the requisite statutory period of possession, notably in the case of Michigan and Ontario, where the latter requires only a ten-year period as opposed to the former’s fifteen. However, current developments and trends in Canadian case law regarding “inconsistent use” as a relevant element of adverse possession suggest that owners of real property in Canada, particularly Ontario, may have significant additional protection above those of U.S. landowners against would be adverse possessors. Therefore, when looking to buy in Northern Michigan, the legally savvy prospector may be wise to choose a spot just over the border into Canada so as to take advantage of the additional barrier thrown up against would-be adverse possessors.

#Canada #U.S. #RealProperty #Adverse #Possession #International #Law #BlogPost

[1] Selina Koonar, Justice Systems in Canada and the United States, https://pdf4pro.com/view/justice-systems-in-canada-and-the-united-2c5bd9.html.

[2] Id.

[3] See generally Brogan Pastro, Inconsistent Use: A Victory for ownership, or a Concern for the Rule of Law? (Dec. 19, 2018), https://canliiconnects.org/en/commentaries/64970.

[4] Frederick A. Acomb et al., Michigan Causes of Action Formbook, Ch. 21, Section III. (2020), https://www.icle.org/modules/books/chapter.aspx?book=2020555610&chapter=21.

[5] Id.; Mich. Comp. Laws. § 600.5801 (1963).

[6] See Davids v Davis, 179 Mich App 72, 81–84, 445 NW2d 460 (1989); see also Cornell Law School, Adverse Possession, Legal Information Institute (last visited Oct. 9, 20202, 1:30 PM), https://www.law.cornell.edu/wex/adverse_possession; see also. To be clear, “hostile,” in this context, means simply possession that infringes on the rights of the true owner; “open and notorious” means that possession must be obvious and thus puts the true owner on notice that a trespasser is in possession; and “exclusive means the adverse possessor does not share control of the property with anyone else. Id.

[7] Ontario: Adverse Possession is a Limitations Issue, Under the Limit – Developments in Canadian Limitations Jurisprudence, (Aug. 29, 2016), http://limitations.ca/?p=495.

[8] Id.; see also Pflug v. Collins, 1951 CanLII 80 (ON SC), [1952] O.R. 519 (Ont. H.C.) (elaborating on the elements of adverse possession in Canadian law, specifically mentioning all of the enumerated U.S. elements of such law).

[9] See Pastro, supra note 3.

[10] Id. An example of inconsistent use would be when the adverse possessor possesses an abandoned school for use as his or her house, where the true owner intended to renovate the school and use it as a school—adverse possessor prevails. Conversely, if the adverse possessor used an abandoned house as his or her home, where the true owner also intended to use it as his or her home—true owner prevails. Id.

[11] Nelson (City) v. Mowatt, 2017 SCC 8 (CanLII).

[12] Id.

[13] Id.