A Claim for Adverse Possession Halts Estate Distribution

February 22, 2023

written on behalf of Feigenbaum Law

For many families, property is a prized asset in terms of its monetary and sentimental value. Family property can bring families together, or in some cases, drive them apart, for example, when the property is related to an estate dispute. 

A recent decision from the Ontario Superior Court of Justice looks at a family divided over a particular property which was subject to an estate dispute. The applicants sought a declaration that their deceased parents had obtained adverse possession because of the way in which their family historically used a piece of property. However, the respondents argued that adverse possession was not applicable. 

What is adverse possession?

The term “adverse possession” is often referred to by its colloquial name “squatter’s rights.” Simply put, adverse possession can occur when a party, who does not own a piece of land, occupies and possess said land as their own, leading to legal ownership of the land. 

In order to establish a claim for adverse possession, a claimant must establish that they: 

  1. have actual possession of the property in question;
  2. intend to exclude the true owner from possession of that property; and
  3. are effectively excluding the true owner from that property.

Family treats entire piece of land as their own despite only owning half 

In the case of McCracken Estate et el. v. Gatt et el., the applicants and respondents are the children and heirs of siblings whose parents jointly owned two adjoining pieces of land. The applicants’ parents purchased their portion of the land from the family plot in 1962. They built their family home on one half of the land and they treated the other half of the land (the “contested land”) as an extension of their yard for approximately 20 years. The respondents’ grandparents legally owned the contested land. 

The fence surrounding the property wrapped around the property as a whole and made no distinction between the two plots. By 1990, the parents of the applicants and the respondents entered into discussions regarding who owned the contested land. These conversations eventually fizzled out until the parents of the applicants passed away. After the death of their parents, the applicants sought confirmation as to whether they could inherit both pieces of land or just the portion their parents held legal title to.

Court applies the test for adverse possession

The Court found that the first element was satisfied as the applicants’ family had actual possession of the contested land since approximately 1962. Despite not having built any structures on the land, they used it as a place to store vehicles and equipment, while the applicants used it recreationally when they were children. Additionally, the parents and grandparents of the applicants cut the grass on the roadside lawn of both pieces of property. 

Adverse possession claim elements not present until years later

The second and third elements of the test which deal with the treatment of the true property owners, were not present until 1989 when the parents of the applicants and respondents began to disagree about who owned the land. Until these negotiations began, there was no effort to exclude the legal owners from the land, or establish who owned it. When the dispute began in 1989, the parties retained counsel, however, no action was taken beyond exchanging written correspondence stating their respective claims to the land. 

Communication between the parents of the parties ceased in 1990. From this point on, the Court found that the adverse possession clock started again. The Court found that it was sufficient for the parents of the applicants to maintain their use of the land, despite being warned that they were not the owners. The Court noted that the respondents’ parents bore the onus of taking steps to regain possession of the land. 

Court grants declaration of adverse possession over disputed property

The Court ultimately held that the applicants were entitled to a declaration that their parents had acquired possessory title of the contested land before its registration in the Land Titles system and that the contested land was vested with the estate of the applicants’ father. 

This case highlights the fact that elements to an adverse possession claim can occur after the initial possession of the land, so long as there is a ten-year window before the land is registered. 

The Experienced Lawyers at Feigenbaum Consulting in Toronto Help Clients Resolve 

The estate law team at Feigenbaum Consulting, led by Mark Feigenbaum, has helped clients navigate the emotionally and financially complex world of estate litigation. Our lawyers work closely with clients to understand their issues and achieve the best possible outcome. By providing comprehensive and tailored advice, we ensure that our clients understand their options and are positioned for swift dispute resolution. We also help clients plan ahead and mitigate legal and financial risks with our estate planning services. To schedule a confidential consultation, please get in touch with us online or call 905-695-1269 (toll-free at 1-877-275-4792).


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