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.

Money Monitor: Are you ready to own property?Video:Money Monitor: Are you ready to own property?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.

Owners need to know their boundaries
There is a lot of confusion between owners who live next door to each other and their rights relating to the boundary lines between their properties.

If you own land in Ontario, it is registered in either the Registry System or the Land Titles System. Most land in southern Ontario is still in the Registry System. A clue is if your legal plan number has the letter “M” in front of it, then you are in the Land Titles System.

As well, if your home is in a subdivision that was built after 1971, all the homes within the subdivision are in the Land Titles System.

The main difference between these two is that in Land Titles, the original boundary lines that were set on title cannot be altered.

In the Registry System, there is the concept of “adverse possession,” so that if a fence was constructed six inches over a property line and remained there longer than 10 years, the owner could claim ownership over this additional six inches. However, if the property was registered in Land Titles, the owner could request the fence to be relocated back to the property line.

This is why it is important for anybody who is looking to buy a home that is registered in the Registry System to receive and review an up-to-date plan of survey by a registered Ontario Land Surveyor before deciding whether to purchase. The survey will indicate whether all fences are on the legal boundary lines.

Who is responsible to pay for the fence that sits on the boundary line? The main principle under the Ontario Line Fences Act is that adjacent owners should co-operate to share the costs on a 50/50 basis. However, if one of the owners wants to build a more elaborate looking fence, he or she will usually be solely responsible for these additional costs, as the 50/50 rule applies to the cost of a simple chain link fence that meets the municipal bylaw requirements.

What about trees that are on the property line? The Forestry Act of Ontario indicates that trees on the property line are jointly owned by the adjacent property owners and both have obligations to maintain the trees. If a tree is on one owner’s land and the branches are hanging over another owner’s land, then the other owner can trim the branches back to the property line. As a courtesy, you should inform your neighbour.

By understanding your rights as an owner regarding your boundary lines, you can hopefully resolve any dispute that you may have with your neighbour.