Acquisitive Prescription: When “Title” Isn’t Everything

By: Gabriel Di Genova

Avoid losing your title rights to land: Be vigilant and proactive. Demonstrate your possession is useful, peaceable, continuous, public and unequivocal.

The Superior Court of Quebec recently reaffirmed a judicial trend making it easier to recognise “rights” of interested parties to acquire land via ten year “acquisitive prescription.” In motion since the Supreme Court of Canada rendered a landmark decision in 2017 (Ostiguy v. Allie, 2017 SCC 22), a series of similar decisions have since followed.

In the most recent example (Pion v. Latour, 2022 QCCS 4768 (CanLII)), the Superior Court recognised the rights of an individual who occupied a parking lot adjacent to her land. The parking lot straddled the dividing line between the plaintiff’s property and the neighbour. For over ten years, there was continuous and public use of the space, in addition to evidence of maintainenance (paving, snow clearance, etc.) – all without objection from the neighbour. Following a dispute between the parties, plaintiff succeeded in petitioning the Court for judicial recognition of the land.

Points to consider:

1. Crown land: It is impossible to use this mechanism to acquire crown land (provincial or federal). However, this mechanism can be applied against privately or municipally held land.
2. Certificate of location: It may reassure a lender, but a COL may be of limited usefulness in this scenario. (This is especially important for new purchasers!) You cannot assume a land surveyor’s report captures the entirety of the historical activity and use of a piece of land. Nothing replaces a site visit and hard due diligence.
3. It’s all in the facts: The outcome of a title dispute under acquisitive prescription is fact heavy. Ensure you can document and easily assess which party used and/or maintained the land (financially or by its own labour).
4. Ten years isn’t a long time: The ten-year acquisitive period can be accumulated between successive owners.
5. Title insurance: If you have concerns about title to land you will acquire, it may be worth subscribing to a title insurance policy.

Once met, the conditions for acquisitive prescription are unforgiving, justifying a heightened level of attention to the boundaries of your current or future property. If you believe you are entitled to have your land ownership rights recognized, are concerned your rights are being eroded by another party, or, if you are questioning the ambiguous title to land you intend to acquire, contact a member our real estate or litigation teams.