Adverse Possession in Ontario: Can You Really Claim Your Neighbour’s Land?
Have you heard the phrase “Sometimes property that does not belong to you can belong to you”? This curious idea is known as adverse possession in Ontario. Rooted in old common law, adverse possession allows someone to claim legal ownership of another’s land under very strict conditions. Let’s break down what this means today, how it applies, and why a recent case could change everything—even for public lands.
What Is Adverse Possession in Ontario?
Adverse possession in Ontario is the legal doctrine allowing someone to gain title to another person’s land if they’ve occupied it “openly, notoriously, and continuously” for long enough. While once broader in scope, today it is limited by Ontario’s Real Property Limitations Act (RPLA). Here’s how it typically works:
- Long possession: You must have occupied the land for at least 10 years before it was converted from the old Land Registry system to the newer Land Titles system.
- Actual, open, and notorious occupation: Your use of the property must be obvious to everyone—including the rightful owner.
- Exclusive intent: You must intend to exclude the registered owner, and the owner must actually be excluded during this period.
Typical Examples of Adverse Possession
Common scenarios where adverse possession in Ontario might be claimed include:
- Building a fence that includes a strip of a neighbour’s yard
- Regularly maintaining, landscaping, or using a disputed area
- Constructing a shed or garden partially on someone else’s lot
But remember: these actions only count if the land was under the old Land Registry system and the occupation lasted at least 10 years before conversion.
New Legal Questions: Can Public Land Be Adversely Possessed?
Kosicki v. Toronto (City): The case shaking things up
Traditionally, it was widely believed that adverse possession in Ontario couldn’t apply to public or government land. But the 2023 Ontario Court of Appeal case, Kosicki v. Toronto, challenged that view. Here’s what happened:
| Issue | Details |
|---|---|
| Facts | Homeowner fenced off city parkland and used it for decades |
| Legal question | Can city parkland be claimed by adverse possession? |
| Outcome (so far) | Ontario Court of Appeal said city parkland cannot be adversely possessed due to “public benefit” exception |
Why the Debate Matters
Majority view
- The Real Property Limitations Act didn’t specifically exclude city parkland, but courts found that public benefit lands shouldn’t be privately claimed.
Dissent by Justice Brown
- Argued that courts shouldn’t invent new exceptions; only Parliament should change laws.
- Warned about judicial overreach undermining democratic principles.
The case has now gone to the Supreme Court of Canada, which will decide if the courts can create exceptions or if only the legislature can act.
How to Avoid Adverse Possession Claims
- Regularly inspect your property boundaries
- Remove encroachments quickly
- Survey your lot to clarify boundaries
- Register land under the Land Titles system if not already done
- Address neighbour disputes early and formally
These steps protect against losing property rights unexpectedly under adverse possession in Ontario.
FAQs About Adverse Possession in Ontario
1. Can I still claim adverse possession today?
Only if the occupation started at least 10 years before the property moved to the Land Titles system—and all legal conditions are met.
2. Does adverse possession apply to condos or shared property?
Very rarely, as shared property or common elements make exclusive occupation almost impossible.
3. Can government or city-owned land be claimed?
Historically no, but recent legal debate (Kosicki case) questions this. The Supreme Court’s decision is pending.
4. Do I need to go to court to claim adverse possession?
Yes, usually through a quiet title action to get formal recognition from the court.
5. How long must I possess land to qualify?
At least 10 years of continuous, open, and exclusive occupation before land conversion to Land Titles.
Conclusion
Adverse possession in Ontario is complex and rarely successful today, especially after land conversion to the Land Titles system. But cases like Kosicki v. Toronto show the law is still evolving—especially about public lands. If you’re worried about losing part of your land or curious about claiming it, consult an experienced real estate lawyer to navigate this tricky legal area safely.
