171 Adverse Possession

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. 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 , R.S.B.C. 1996, c. 251Land 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, §3:17, and vol. 3, §18:74.

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, reversed 2014 BCCA 113, affirmed (sub nom. Nelson (City) v. Mowatt), 2017 SCC 8).

First Indefeasible Title and Adverse Possession

In 1910, three parcels of land were transferred, or were intended to be transferred, to the City of Victoria for the purpose of building a high school. At that time, the owners of the three parcels held “absolute titles” under an absolute title system used before the adoption of the Torrens system (these were converted by the Registrar of Land Titles to first indefeasible titles in 2000 and 2003). However, transfer of titles to the City was never perfected. The school continued in operation since 1910. The City sought a declaration that it was the legal and beneficial owner of the properties. Held, petition allowed; the court declared that under the authority of the Land Title Inquiry Act, the City is the legal and beneficial owner in fee simple in possession of the three properties, subject to the conditions, exceptions, and reservations enumerated or referred to in s. 23(2)(a) to (j) of the LTA, but free from all other rights, interests, claims, and demands, and that it holds good safe holding and marketable title. Under the Land Title Inquiry Act and the LTA, adverse possession is available if the possession commenced prior to July 1, 1975 and continued adversely for 20 years in the case of land owned by an individual, or 60 years in the case of land owned by the Crown. On the evidence the court found valid adverse possession against first indefeasible titles, satisfying s. 23(4) of the LTA. A claim of adverse possession requires possession of the subject land that is (citing Re Canadian Pacific Railway Co., 2002 BCSC 1041 at para. 57) “open and notorious, adverse, exclusive, peaceful (not by force), in general actual (as opposed to constructive), and continuous”. It was difficult to imagine use of land more open, notorious, and exclusive of others than in the present case, involving as it did the construction and operation of a high school for 110 years on a large piece of property located among busy suburban streets. The development of the land had to have been a major and obvious change in the surrounding neighbourhood, if not in the city of Victoria itself. There was no evidence that any of the names on title or their heirs or anyone objected to the adverse possession by the City for 20 or 60 years after 1910, or ever. Section 171 of the LTA states that an application “founded in whole or in part on adverse possession” must not be accepted unless permitted by the LTA and “supported by a declaration of title under the Land Title Inquiry Act”. The City was accordingly entitled to the declaration it sought (Re Victoria (City), 2020 BCSC 1942).