This comprehensive guide explores the legal tool of adverse possession in British Columbia, clarifying key terms and addressing common questions that landowners may have. 

If you are involved in a property ownership dispute, this guide will offer insights and certainty to help you understand your rights and options.

What is adverse possession?

Adverse possession, or squatter’s rights, is a common law rule allowing someone other than the registered owner to gain legal title to a property. This occurs when an individual possesses a piece of land for an extended period, meeting specific legal requirements, without the owner’s permission.

Was adverse possession to acquire land title abolished in BC? 

Yes, adverse possession was abolished in 1975, but under the Land Title Inquiries Act and the Land Title Act, adverse possession is still available if it commenced prior to July 1, 1975, and continued adversely for 20 years in the case of land owned by an individual or for 60 years in the case of land owned by the Crown.

Why did the Mowatts claim the land became theirs?

In the leading case on adverse possession of Nelson (City) v. Mowatt 2017 SCC 8, decided by the Supreme Court of Canada, Mary Mowatt and Earl Mowatt claimed ownership of a disputed lot at 1114 Beatty Avenue in Nelson, British Columbia. Their claim was based on a claim of continuous adverse possession of the land by three families in succession, starting in the early 20th century. The Mowatts took possession of the disputed lot in 1992.

What led the courts to deny the Mowatt their claim for adverse possession?

The Supreme Court of Canada denied the Mowatts’ claim of adverse possession. The court found an interruption in the continuity of possession, a key requirement for a successful adverse possession claim.

What facts did the chambers judge find that caused him to deny the Mowatts’ acquisition of the property?

The BC Supreme Court chambers judge denied the Mowatts’ acquisition of the property because they failed to demonstrate continuous possession of the disputed lot for the required period. The judge identified an “evidentiary gap” in the Mowatts’ claim, meaning there was a period where they could not prove continuous possession.

What are the basic requirements at common law for adverse possession?

At common law, the basic requirements for adverse possession are that the act of possession must be:

• Open and notorious: The trespasser’s use of the land must be so open that it serves to give notice to the owner that someone is in possession of the land and asserting a claim of ownership.
• Adverse: The trespasser’s possession of the land must be without the owner’s permission and in opposition to the owner’s title.
• Exclusive: The trespasser’s possession of the land must be to the exclusion of the owner. However, the adverse possessor who successfully obtains title need not always be the same person whose adverse possession triggered the running of the limitation period. In the Mowatts case, the alleged possession was by a succession of 3 different families.

• Actual: The trespasser must be in possession of the land. In the Mowatts case, the Supreme Court of Canada distinguished possession and occupation. Possession does not require continuous occupation, as the common law recognizes that a person may possess land in a manner sufficient to support a claim to title while choosing to use it intermittently or sporadically. That is, property can be possessed, or differently put, controlled, without being at all times occupied.
• Continuous: The trespasser’s possession of the land must be continuous for the entire limitation period.

These are the key tests that the court will examine in order to determine whether the adverse possession claim is justified.

What is the rationale behind adverse possession?

The rationale behind adverse possession is to encourage the efficient use of land. 

It rewards those who actively use and possess land, even if not the rightful owners, and penalizes those who “sleep on their rights” by failing to utilize their property.

In BC law, how long does adverse possession have to be?

Under BC law, in particular, The Limitations Act, the required period for adverse possession is 20 years for claims against private landowners and 60 years for claims against the Crown. The other statutes, cited above, further limited the timeline in which one can make a claim based on adverse possession.

Can adverse possession incorporate ownership of lands over which the owner holds indefeasible title?

No, if the claim met the above limitations requirements, adverse possession still cannot incorporate ownership of lands over which the owner holds indefeasible title. Indefeasible title is a type of title that is guaranteed by the government and cannot be challenged by adverse possession.

What is the difference between adverse possession and acquisition of property rights by prescription?

Adverse possession and acquisition of property rights by prescription are both legal concepts that allow someone other than the owner to gain rights to a property through long-term use or possession. However, there is a key difference between the two. Adverse possession refers to the acquisition of the entire ownership of an estate. In contrast, prescription refers to the acquisition of lesser rights, such as easements or profits, without affecting the estate’s ownership.

Is acquisition of property rights by prescription also abolished in BC? In what year?

Yes, acquisition of property rights by prescription was also abolished in BC in 1975.

In BC law, does the squatters’ intended use have to be inconsistent with the owner’s intended land use?

No, the squatters’ intended use does not have to be inconsistent with the actual owner’s intended use of the land.

The inconsistent use doctrine, that is, that the possessor’s use of the disputed lot must have been inconsistent with the true owner’s present or future enjoyment of the land, does not accord with the legislation in the province of British Columbia. Therefore, the inconsistent use requirement forms no part of British Columbia law governing adverse possession.

Roland Luo: Helping You Protect Your Property Rights

Landowners need to be vigilant in protecting their property rights. Understanding the concept of adverse possession and its implications is important for all property owners. If you believe that someone may be adversely possessing your property or if you have any questions or concerns about adverse possession, it is essential to seek legal advice promptly. Contact us today to schedule a consultation with one of our experienced property lawyers. We can help you understand your rights and options and take the necessary steps to protect your property.

Located in downtown Vancouver, Roland Luo proudly represents clients throughout British Columbia, Canada, and the United States. To schedule a confidential discussion, contact us online or by phone at 604-800-4628.