Adverse Possession & Land Titles Conversion Qualified Lands

Post by: Evan Holt

A recently released Ontario Superior Court of Justice decision clarifies adverse possession claims with respect to property registered in Land Titles Conversion Qualified (LTCQ). The lands in dispute were converted to LTCQ on December 14, 1998. Here, “the critical time period is the time prior to the conversion of title into Qualified Land Titles”.

On October 22, 2004, the plaintiff purchased 322 King Street, Peterborough. The plaintiff had previously been a tenant of the property for a number of years. On December 22, 2000 the defendant purchased 320 King Street, Peterborough, which lies to the east of the plaintiff’s property.

The plaintiff asserted that the defendant no longer had a right-of-way over the easterly 8 feet of the plaintiff’s land. Additionally, the plaintiff asserted that possessory title had been established with respect to a triangular strip of land on the west side of the defendant’s property which had been enclosed by a chain-link fence, and a 6 inch encroachment on the defendant’s property caused by a garage constructed on the plaintiff’s land.

As of the date of registration, LTCQ lands are subject to:

  1. the limitations, qualifications and reservations contained in subsection 44(1) of the Land Titles Act (Ontario) save and except for the provisions of subparagraph 11 (subdivision control), subparagraph 14 (dower rights);
  2. the rights of any person who would, but for the Land Titles Act (Ontario), be entitled to the Lands or any part of it through length of adverse possession, prescription, misdescription or boundaries settled by convention; and
  3. any lease to which subsection 70(2) of the Registry Act (Ontario), attached hereto, applies.

Although not discussed here, as of the date of registration, LTCQ lands are not subject to provincial succession duties and escheats or forfeiture to the Crown.

“Section 51(2) of the Land Titles Act preserves a possessory title if the length of possession that is necessary has elapsed by the time the conversion in the Land Title system takes place”. Therefore, the plaintiff had to establish that prior to December 14, 1998, the requirements of possessory title were satisfied.

201

To establish a claim of possessory title, the plaintiff must prove:

  • actual possession for the statutory period;
  • that such possession was with the intention of excluding the true owner; and
  • discontinuance of possession for the statutory period by the true owner.

An affidavit dated October 21, 1998, provided by the now deceased previous owner of the plaintiff’s land stated that:

  • the garage was constructed and used prior to the previous owner’s acquisition of title to the land in 1939. During the occupation of the previous owner the garage was used without interruption or interference;
  • the owners or owner of the defendant’s property had maintained a fence in the same location as the chain-link fence continuously for a period greater than 30 years;
  • that no part of the 8 foot right-of-way had never been used by occupants or other permitted users of the defendant’s land.

The court found the statements made in the affidavit to be reliable despite the inability of the evidence to be cross examined. The court also found that this evidence demonstrated that the garage and fence had been in place for at least 10 years prior to conversion into the Land Titles system. No evidence to the contrary was provided by the defence. The court granted a declaration that the defendant’s land was subject to the encumbrances of the plaintiff.

The court found for the plaintiff with respect to the defendant’s right-of-way over an 8 foot portion of the plaintiff’s land. The court was satisfied that prior to LTCQ registration the predecessors in title to the defendant’s land had abandoned the right. This was demonstrated through the affidavit evidence and the location of the garage and fence that blocked the use of the right-of-way. In the alternative, the court also noted that the right-of-way was granted in 1913 and ceased to be enforceable 40 years after its original registration.

Access the full decision by clicking here.

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Converting lands to “Land Titles Absolute” before condominium registration

Post by: Craig Robson

In Ontario, before a condominium can register, the lands must be registered in “Land Titles Absolute” or “Land Titles Plus”.  These are the highest categories of title available under the Land Titles Act.  Most Ontario lands continue to be “Land Titles Conversion Qualified”.  The “Conversion Qualified” category has qualifiers that do not apply to the “Absolute” and “Plus” categories, including the qualifier that “Conversion Qualified” lands are subject to “any title or lien that, by possession or improvements, the owner or person interested in any adjoining land has acquired to or in respect of the land”.

The application to convert requires a title search by the project lawyer and a boundary survey by the project surveyor.  The boundary survey is circulated to the neighbouring land owners with a warning that if they do nothing the boundary shown on the survey will be certified as the true boundary of their property.  If a neighbour does not agree with the boundary, then the neighbour can object to the application.

In greenfield developments there are usually far fewer boundary issues than exist in built up areas. In built up areas, very often fences are constructed “off boundary”, sheds encroach and significant use has been made of the proposed condominium property by neighbours.  If the property has been vacant for some time, this use can be significant and long standing.

It is important to respond to neighbour’s objections in a principled fashion to minimize potential for delays in the conversion process, which if lengthy can also delay condominium registration.

For more on options for responding to objections to your LTA conversion application, check out our earlier blog article here: “Responding to Objections to an Application to Convert to LTA”.

http://www.rcllp.ca

Responding to Objections to an Application to Convert Lands to “Land Titles Absolute”

Post by: Craig Robson

What are your options if an objection is made to your application to convert lands to Land Titles Absolute?

As a starting point, you should always conduct a careful review of the materials that support the objection.  They may on their face show insufficient time has passed to give the encroachment the status it needs to defeat your title.  If this is brought to the attention of the neighbour, they may withdraw their objection.

If a review of the materials is inconclusive, then as a second step you may decide to conduct a sub-search of title of the neighbouring land and seek any other evidence you can find through discussions with other neighbours, building permit records, Google Earth searches and the like to try to prove the encroachment has not been in place for the requisite 10 years before the lands went into Land Titles Qualified.

You might also choose to acknowledge the claim if it does not affect the integrity of your development and convey the encroached lands to the neighbor.  Depending on the circumstances, you may need a severance consent from the Committee of Adjustment and it should be kept in mind that this can be both time consuming and expensive.

Another option is to attempt to negotiate a settlement of the objection with the neighbour.  This approach has the benefit of allowing for all manner of compromise resolutions to be found, but typically only works if both sides are prepared to act reasonably.

You can also try to “go around” the neighbour.  That is, if you don’t need the land in question to be in the condominium, then the survey boundary can be adjusted to exclude the area in dispute.

If all else fails, then the Land Registrar can be asked to convene a hearing to rule on the claim or you can apply for a Court order that the claim is without merit.

http://www.rcllp.ca