Adverse Possession

In mortgage financing, adverse possession denotes a situation when a person legally takes over another person's property without paying for it. In fact, the prerequisites for possessing a property adversely varies in different provinces, but the process normally comprises unremitting and open utilization of a property for at least five or more years and making the tax payments on the property in question. In other words, adverse possession means a person who is not the owner of a particular property, taking over the ownership of that asset against the wishes and without the approval of the actual proprietor. The individual not only keeps the land under his or her private control and even overlooks the privilege of other persons and this even includes the actual owner of the property. Incidentally, it is likely that the person undesirably occupying the property may even terminate the possession rights of the actual owner of the property. And when this happens, the person occupying the land adversely becomes the proprietor of the property.

Looking back, it is found that the practice of adverse possession or possessing a property or land hostilely or undesirably dates back to the medieval ages. Vast and great estates existed during that period and in most cases the proprietors were not present to look after their properties. Taking advantage of this situation, unlawful tenants moved into these properties and settled there for several years at a stretch. Although the rule stipulates that an individual may get hold of the ownership title of a land in specific conditions by keeping the said land his or her control for a specific time phase as mentioned in the laws of a particular province, the number of unlawful tenants or occupants of a land has diminished over the years owing to more precise land and property appraisals. The laws relating to adverse possession clearly states that it is essential that the occupancy of the property is open, restricted and for a specific period of time minus the sanction of the owner. However, the owner should in effect be aware of such illegal occupation of his or her property. It may be noted here that the illegal occupant may be deprived of the advantage of 'adverse possession' if the owner of the property intervenes into the matter before the expiry of the possession period mentioned in the law. Adverse possession may also come to an end if the unlawful occupant vacates the property before the minimum period stipulated by the law in such situations. In such a situation, it would be deemed that the possession of the property has been taken over by its original owner.

Here is a word of advice for all legal practitioners. They need to exercise caution while dealing with an adverse possession case as the provincial laws in Ontario only accepts ownership rights of an unlawful occupant of a property through registration, especially if the land is listed as per the provisions in the Registry Act of the province. On the other hand, Maritime Provinces and some regions of Manitoba and Ontario are still under the purview of the listing procedure, have decreed a specific period further than which the owner of a property forfeits the merit to get back the ownership of his or her property. The Limitations Act in Ontario has fixed this period at 10 years for proprietors who are under the purview of the registry or listing procedure, while in Nova Scotia, the legal time limit is 20 years as per the provisions in the Limitations  Act. However, law in Nova Scotia further states that in the instance of the owner resides outside the province the time limit for the illegal occupant to take advantage of the provisions under the adverse possession is doubled, i.e. 40 years. It is important to note here that the liability of providing the evidences in support of the adverse possession lies with the person who is asserting the ownership of the property and hence, it is suggested that both parties seek the counsel of legal authorities in resolving such vexed issues.

Although land owners are understandably against the adverse possession, the theory that governs the law of restriction is simple. Either the land owners intervene into the illegal or hostile occupancy of their property within the stipulated time frame or they forfeit the privilege. As the law specifies that adverse possession is only possible with the knowledge of the owner, he or she is not entitled to keep the illegal occupant waiting for initiating a legal action against him or her infinitely. However, it needs to be mentioned here that no individual is allowed to claim the ownership of a land through adverse possession in the Canadian provinces of Alberta, British Columbia, Saskatchewan and the regions of Ontario and Manitoba that are under the jurisdiction of the land titles or ownership arrangements. The law in all these provinces and regions assert that no one is entitled to take over the ownership of a land from its original proprietor through adverse possession. In fact, under no circumstance can an illegal and hostile occupant of a property terminate the possession rights of the original owner.

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