AS PREVIOUSLY PUBLISHED IN THE RURAL VOICE:
Until recently, there
was a thin strip of laneway running behind a building not far from Downtown
Toronto that still belonged – at least on paper – to the man who bought it
1824. Although that owner died in 1870,
he was still considered by the Land Registry in Ontario to be the registered
owner of the strip, which is wide enough only for a car (or horse and cart) to
pass along. On an application made to
the Superior Court, the present-day corporate owner of the adjacent property
has now been declared the owner of the strip of laneway on the basis of adverse
possession.
By operation of
Sections 4 and 15 of the Real Property Limitation Act, a person who has
been in legal possession of another’s land for a period of ten years while the
land has been registered under the Registry Act – adverse possession –
can obtain possessory title to the land; the ownership interest of the
registered titleholder will be extinguished.
The claimant for possessory title must meet three requirements: 1) the
claimant (or his or her predecessors-in-title) must have had actual possession
of the land being claimed, which means “open, notorious, peaceful, adverse,
exclusive, actual, and continuous having regard to the nature of the disputed
property”; 2) the claimant must have had the intention to exclude the
registered owner and other persons entitled to possession of the disputed land
(an “animus possidendi”); and, 3) the registered owner and any other
persons entitled to possession must have been excluded for the 10-year
statutory period. Where the three
requirements are met, the claimant can seek a declaration from the Court that
the claimant is the true owner of the disputed lands and an order requiring
that the Land Register be amended to reflect that ownership (i.e. making the
claimant the “new” registered owner).
The claim for possessory
title to the lands in this case was fairly straightforward – the Judge even
said it was “not a close call”. The
Applicant, the current corporate owner of the adjacent property, had purchased
its land from a family who had held the land continuously since 1941. The son of the 1941 purchaser gave
uncontested evidence in support of the application that his family had always
believed that they owned the thin strip of laneway at the back of their
property. They didn’t know that it was
not part of their property. The 1941
purchaser ran a business and parked his car on the laneway every day. When he passed away, his son continued to
park there. No one ever objected to that
use or challenged the family’s control of the laneway. In fact, in the early 1970s, the family
erected a chain across the entrance to the laneway to prevent any access to it
without their permission.
What was noteworthy
about this case, though, was the involvement of the great-great-great grandchildren
of the 1824 purchaser. The Applicant had
hired a genealogist to identify and locate the descendants of the registered
owner of the laneway so that they could be given notice of the proceeding. Notice of the application was given so that
anyone with rights of ownership in the property could assert their claim to the
lands in opposition to the Applicant.
However, as observed by the Judge: “some of the respondents seem to have
misunderstood the purpose of the notice they received. They oppose the application as if they, as a
group, have some residual right to share the property (or its monetary
value). They do not have any such
rights.”
None of the
great-great-great grandchildren of the 1824 purchaser provided evidence to show
that any of them had a right to the land in issue. The fact that the respondents could “trace
roots to an owner 200 years ago” did not mean they owned the land. While the last will and testament of their
ancestor was known, the possible history of the ownership of the land after
that is unknown: “… no one knows the identity of any residual beneficiaries of
[the owner’s] children, let alone his grandchild, great-grandchildren etc. Gifts could have been made to charity or to
relatives by marriage, or to anyone.”
Ownership now of the
laneway strip for the great-great-great grandchildren would have been a
windfall – there was no evidence that any of them knew anything about the
laneway before being given notice of the court application. However, taking a run at that windfall came
with a cost. The Applicant incurred
costs of more than $112,000; it sought indemnity for about $25,000 from those
respondents who opposed the application.
In response to the costs claim by the applicant, the respondents pleaded
that any costs they are ordered to pay should be reduced because they were
self-represented litigants: “Individuals cannot afford the legal costs that a
large corporation can afford. Yet we
feel we should be able to present our case at a Hearing without having to risk
a huge (huge for us) legal bill. For
access to justice to be fair, we think it is reasonable that the costs award to
the applicant be substantially reduced from the amount requested.”
The Judge didn’t go for that argument, awarding
the $25,000 requested by the Applicant.
The Judge concluded: “Like all civil litigation, this case was about
money. The opposing respondents wanted
the developer to pay them for great-great-great grandfather’s laneway. … The opposing respondents felt a heavy
responsibility to make a ‘large corporation’ building a ‘high rise development’
pay them money. They chose to see a
refusal as an affront.”
Read the decision at: 2022 ONSC 6776 (CanLII).