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In This Volume

  • 171 An application founded in whole or in part on adverse possession must not be accepted by the registrar unless permitted by this Act and supported by a declaration of title under the Land Title Inquiry Act.

1979-219-168.

PRACTICE

An applicant claiming to be the owner of land who bases their title on adverse possession must first make a claim under the Land Title Inquiry Act, R.S.B.C. 1996, c. 251. The aim of that Act is to “quiet” title; that is, to make a declaration of the validity and conclusiveness of title. An applicant then supports their application under s. 171 of the Land Title Act with the declaration of title obtained under the Land Title Inquiry Act. The declaration of title does not have the same effect as the issuance of an indefeasible title under the Land Title Act.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Appeal to Court

Where the registrar refuses to effect a registration on the grounds that the applicant’s title must be declared under the Land Title Inquiry Act, a court may order that appeal proceedings under s. 309 of the Land Title Act be governed by the Land Title Inquiry Act.

Claims against the First Indefeasible Title Registered

See s. 23(4) of the Act, which allows certain claims of adverse possession against the first indefeasible title registered.

Secondary Sources

See Di Castri, Registration of Title to Land, vol. 1, para. 49, and vol. 3, para. 842.

CASE LAW

Purpose and Application of Land Title Inquiry Act

The purpose of the Land Title Inquiry Act (formerly, the Quieting Titles Act, R.S.B.C. 1960, c. 327) is to allow the court to investigate “presently existing titles” and to make a declaration of validity (Re Quieting Titles Act; Re a Certain Lot in New Westminster District, 1962 CanLII 538 (BC SC)).

The Land Title Inquiry Act provides the machinery for a court to investigate an “unquiet” title, such as a title based on prescription or rights acquired by accretion, and is not applicable to an indefeasible title (Re Quieting Titles Act, Re a Certain Lot, Kootenay District, 1967 CanLII 507 (BC SC)).

The petitioner attempted to invoke the Land Title Inquiry Act where the deceased had failed to give the petitioner a conveyance after he claimed to have made all payments under an agreement for sale. The Land Title Inquiry Act does not give a court any power to vest an outstanding interest in an applicant. The most a court can do is declare a title that already exists (Re Quieting Titles Act; Re Waters; Re Sherman 1957 CanLII 542 (BC SC)).

Adverse Possession

The petitioner applied for a judicial investigation under the Land Title Inquiry Act and a declaration of title on the basis of adverse possession. The land in question comprised about 6 acres. It had been used for more than 100 years as part of the petitioner’s railway right of way. No indefeasible title to the parcel was ever registered in the land title office in the petitioner’s name or in any other person’s name. The court found that a claim to title based on possession must be open and notorious, adverse, exclusive, peaceful (not by force), in general actual (as opposed to constructive), and continuous. In this case, the petitioner’s use of the parcel for building a railway track and running trains over it met the requirements for open, notorious, and exclusive possession. Furthermore, no evidence was offered to suggest that the petitioner either sought or received permission to use the land for railway purposes. Accordingly, it was safe for the court to infer that the petitioner had no permission to use the land, that the petitioner’s possession was adverse to the true owner, and that any claim to the parcel by the true owner was extinguished before 1975 by the Statute of Limitations as it then existed. In these circumstances, the court issued a preliminary order granting the legal and beneficial ownership of the parcel to the petitioner in fee simple (Re Canadian Pacific Railway, 2002 BCSC 1041).

The petitioners sought a judicial investigation under the Land Title Inquiry Act of a disputed area of land and a declaration that they were the owners in fee simple in possession as title to the disputed area had been acquired by adverse possession before July 1, 1975. In 1891, a company acquired a large parcel of land, including the disputed area, and registered title to the land in absolute fee. Title was never registered in indefeasible fee. When the company dissolved in 1930, the land escheated to the Crown. The plaintiffs provided evidence that various parties had lived on the disputed area from 1909. In order to establish a claim of adverse possession, the court held that while possession need not have been by the same person, it must have been continuous. In this case, the petitioners did not provide evidence of possession over a period of more than two years from 1917 to 1919. As a consequence, the court was not satisfied and noted that, under s. 11 of the Land Title Inquiry Act, it was required to provide the petitioners with 30 days to produce any further evidence they might have (Mowatt v. British Columbia (Attorney General), 2014 BCSC 988).

In a subsequent proceeding, the petitioners provided additional evidence of possession that the court found actually broadened the gap in possession, with the result that the petitioners failed to show continuous occupation of the disputed area (Mowatt v. British Columbia (Attorney General), 2014 BCSC 2219). The petitioners appealed. The Court of Appeal accepted the petitioners’ evidence and found that there had been no gap in possession from 1909 to 1923 (Mowatt v. British Columbia (Attorney General), 2016 BCCA 113). The City of Nelson was granted leave to appeal to the Supreme Court of Canada. The Attorney General intervened. The Supreme Court of Canada found that the Court of Appeal erred by interfering with the chambers judge’s findings of fact which, it said, stemmed from a difference of opinion over the weight to be assigned to the evidence. The chambers judge, in considering the evidence before him, was carefully attuned to the historical nature of the claim and to its implications for the quality and availability of evidence. He held two hearings, carefully canvassed the evidence in cogent and thorough reasons, and reached findings that were available to him on the evidence. In the result, the Supreme Court of Canada allowed the appeal and restored the decision of the chambers judge with the result that the petitioners/respondents did not acquire an interest in the disputed lot by adverse possession (Nelson (City) v. Mowatt, 2017 SCC 8).