Property 108b Y02
January 19, 2006 Page 1 of 2
Possession – Real Property – Best Claim: Adverse Possession for requisite number of years prior to July 1, 1975
What is adverse possession? Definition: Possession of another’s land without the true owner’s permission for a prescribed statutory period of time during which the true owner has failed to bring suit to recover possession Possession gives the possessor an interest in land vis-à-vis subsequent possessors (better title). We see this in Asher and Wife v. Whitlock. If the possession continues for the statutory length of time (limitation period), and is characterized by the necessary elements, the true owner’s title will be extinguished and the possessor will become the new “true owner” (best title) through adverse possession. open and notorious, adverse, exclusive, continuous, peaceful, actual
Benefit:
Elements:
Is it still possible to extinguish title through adverse possession in BC? Generally, for land under provincial jurisdiction in BC, a person cannot acquire an interest in land through adverse possession: s. 12 of the Limitation Act (“except as specifically provided by this or any other Act, no right or title in or to land may be acquired by adverse possession.”). Indeed, an owner may bring an action for possession at any time: s. 3(4) of the Limitation Act. Exception: It is still possible to extinguish the true owner’s title if the land at issue is not the subject of a certificate of indefeasible title (s.23(3) of the LTA) or if the land is the subject of a first certificate of indefeasible title where the adverse possessor was “in actual possession of and rightly entitled to the land included in the indefeasible title at the time registration was applied for and who continues in possession.” (s. 23(4)). But how can a person acquire title through adverse possession given that the Limitation Act no longer includes limitation periods (i.e., the provisions that set out the number of years a true owner has to dispossess an adverse possessor)? In other words, what is the benefit of ss.23(3) and 23(4) of the Land Title Act, which tell us that title acquired through adverse possession still applies to certain lands, if it is now impossible to acquire title through adverse possession because the limitation periods have been repealed? This is where s. 14(5) of the Limitation Act comes in. The law recognizes right or title to land acquired by adverse possession before July 1, 1975: s. 14(5) of the Limitation Act. Thus, if a person has acquired a right through adverse possession before July 1, 1975, and makes the appropriate application under s. 171 of the Land Title Act (“an application founded in whole or in part on adverse possession must not be accepted by the registrar unless permitted by this Act and supported by a declaration of title under the Land Title Inquiry Act.”), then that person is eligible to receive indefeasible title to land if the land and the possession meets the requirements of ss. 23(3) or (4).
Property 108b Y02
January 19, 2006 Page 2 of 2
How does all of this apply to Canadian Pacific Railway? Subsection 14(5) of the Limitation Act is why CPR was able to, in 2002, establish its claims to title to the Parcel through adverse possession against both the descendant(s) of Roberts and the provincial Crown. Recall that CPR’s claim to the Parcel started (at the very latest) in 1892 when the railway line was completed. Under the limitation periods in effect at that time, this meant that CPR could establish title through adverse possession after 20 years vis-à-vis Roberts and after 60 years vis-à-vis the provincial Crown. Because CPR was in adverse possession in 1912 (after 20 years) and even in 1952 (after 60 years), it was not necessary for the Court to conclusively determine who the true owner actually was from the evidence; CPR would have satisfied the time for length of possession in both situations. In sum: Since both limitation periods expired well before July 1st, 1975, the Court in 2002 was able to recognize CPR’s claims under s. 14(5) of the Limitation Act and CPR was able to acquire title to the Parcel through adverse possession. And since the Parcel was never the subject of a certificate of indefeasible title, CPR was able to acquire, despite s.12 of the Limitation Act, title adverse to the true owner’s (whether Roberts’ descendants or the Crown). * * *
Possession – Real Property – Possession - Better Claim: Asher and Wife v. Whitlock Who is the true owner in this case? a) b) c) d) e) Thomas Williamson (husband) Lucy Williamson (wife) Mary Ann Williamson (daughter) Whitlock (second husband) None of the above
How did Thomas acquire this land? To whom did he devise his interest in the land? What happened to Lucy’s interest in the land once she remarried? Did Lucy and Whitlock continue to live on the land once she remarried? What happened to Mary Ann’s interest in the land once she died? Who is the plaintiff in this action for ejectment? Who is the defendant?