Making a Claim of Adverse Possession Against the Province
"Adverse possession" or "squatter's rights" are terms used to describe when a person claims ownership of land for which they don't have a legal title document. To gain ownership of land by squatting or adverse possession you must use and occupy the lands in a way that clearly shows that you believe that you own the land. In legal terms, a squatter must be able to show actual, open, visible, notorious, exclusive, and continuous possession and enjoyment of the land in a fashion which is adverse to the ownership interest of the owner.
In plain language that means you must be using the land in a visible and public way that is known in the community where the land is located. If you are claiming to own land that belongs to the province, you must have total control of the land and you must be able to show that you or others who used and occupied the land before you have been on the land for a total period of 40 years without any breaks in time. Your activities on the land must demonstrate that you believe that the land is yours and that the person with the deed to the land has no right to the land. If you are claiming land owned by a private individual, you need to show 20 years of continuous use and occupation.
The squatter must prove that they have met the legal tests (i.e. actual, open, visible, notorious, exclusive, and continuous possession) and are in possession of the whole property.
If you are making a claim of adverse possession of land owned by the province, you should go to see a lawyer and explain the history of your use and occupation of the land. The lawyer will help you prepare the information you need to send to the Department of Natural Resources to prove your claim.
Below is an outline of what you will need to establish your claim:
- A sworn legal statement (statutory declaration) from you setting out the information (facts) that prove that you are the owner of the land
- A sworn legal statement from someone in the community who is not related to you (an independent third party) who can provide information that describes your use and occupation of the land.
- The sworn statements and other information provided should show clearly:
- When the land was first occupied and who has occupied it over the years (e.g I inherited it from my dad (John Brown) in July 1995. My dad lived on the land from 1960 until his death. My father bought it from his neighbour (Mary Smith) in August 1960. Mary Smith had inherited it from her mother in 1945.);
- The location of any fences, buildings or other structures that would show how much of the land you have occupied (the area -acres/hectares);
- Information about activities that took place on the land and any maintenance done on buildings or other structures on the land;
- How you get to and from the land (driveways, rights of way etc.);
- Information about any changes made to land and buildings/structures/fences on the land, including dates and names of those who made the changes.
- You should attach any wills, or deeds or other documents that support your claim;
- If you need to include some time in the past when someone else owned the land, you will need to submit sworn statements to prove their ownership and use.
- You need to provide a sketch or a plan that shows:
- Where the parcel is located, who owns the land on all sides of the parcel;
- Any roadways and paths used to get to the land;
- The location and size of all buildings;
- Information on how the land is being used (e.g. pasture, cultivated field, garden etc)
MAKING A CLAIM OF ADVERSE POSSESSION IS COMPLEX AND SHOULD BE DONE WITH THE ASSISTANCE OF A LAWYER.
Definition of Legal Conditions for Adverse Possession:
- Actual Possession - The land must have been actually used by the claimants without the approval of the owner. The use must be consistent with the nature of the land and in a manner similar to the use a true owner might make of the land. Isolated and separate acts of trespass do not establish possessory title.
- Open and Notorious - The use and occupation must take place in an open and visible manner so that others, in particular the true owner, might know of or could regularly observe it. The use and occupation will generally be widely known by others in the area. The degree of notoriety will be consistent with the nature of the area in which the land is located.
- Continuous - The possession must be continuous for the duration of the 40 years (e.g. daily, weekly, depending on the nature and location of the land). A series of adverse possessors may be linked together to make a continuous period, if previous trespassers followed each other in succession in an unbroken chain.
- Exclusive - The possession must be exclusive, not only with regard to the true owner, but also all others. Random acts of possession by various individuals will not meet the exclusive requirement for a possessory claim.