When possession is more than 9/10ths of the Law

Adverse possession of real property, commonly referred to as squatter’s rights, has been a part of Alberta law since the inception of the Province in 1905. The law traces back to the United Kingdom’s Real Property Limitation Act of 1833.

Adverse possession arises when a registered landowner fails to take action to remove a trespasser during the statutory limitation period. In Alberta, this period is 10 years. After 10 years of exclusive possession, the trespasser or squatter may extinguish the owner’s rights to the adversely possessed lands.

The legal test for adverse possession is relatively simple:

First, the claimant must be in possession and the owner must be out of possession.

Second, the possession must be exclusive, continuous, open or visible and notorious for the 10-year limitation period.¹

The possession must also be adverse meaning that the occupation of the land must not be with the owner’s consent.² A person cannot be an adverse possessor if they have a license or lease to use or occupy the land. An encroachment agreement, easement, or right of way should also defeat a claim for adverse possession.

It usually does not matter if the adverse possessor was aware that they were in possession of another person’s land. The trespass that gives rise to adverse possession can be intentional or accidental. It also does not generally matter if the owner was aware of the possession or if the possession was a result of a common misunderstanding of the location of property lines.

Once the test is made out, the Law and Property Act provides that the possessor is quieted in the exclusive possession of the land pursuant to an immunity under the Limitations Act. The original owner’s ownership in the adversely possessed lands is extinguished and ownership is vested in the adverse possessor.

The law can be harsh, which was illustrated in Moore v McIndoe (2018 ABQB 235).

The Moores purchased a property in a residential neighbourhood in Calgary in 1989. The lot was complete with a single-family house and side-yard fence. Thirteen years later, the McIndoes purchased and moved into the home next door. The fence between the two properties was located entirely on the McIndoes lot and a strip of the McIndoes’ property, ranging from 0.22m and 2.8m in width was on Moores’ side of the fence.

In 2003, the Moores extended the fence and continued to exclusively occupy the land on “their” side of the fence. The parties split the cost of the new fence and despite an agreement that the fence would be on the property line, the McIndoes were aware that the new fence was built entirely on their property. The McIndoes decided not to ask the Moores to vacate their strip of land because they found the Moores to be difficult, aggressive, and volatile neighbours and wanted to avoid confrontation. They did not understand that time was ticking.

In 2014, the McIndoes began contemplating re-landscaping their yard and asked the Moores to leave the strip of land. The Moores refused and started a lawsuit claiming the strip of land belonged to them.

At trial, the McIndoes unsuccessfully argued that their passive acceptance of the Moores occupation of the strip of land created a license. Despite the Moores’ evidence being inconsistent and not credible, the Court found that the test for adverse possession had been met. The possession of the strip of land was open, continuous, and exclusive. Because the McIndoes did not re-enter the property or bring a lawsuit prior to the expiration of the 10-year limitation period, the Moores were awarded judgment quieting their exclusive possession of the strip of land.

Moore v McIndoe is a cautionary tale of the potential costs of being neighbourly. In order to protect from adverse possession, owners can:

1. 1. make themselves aware of the location of property lines;
   2. determine if any of their land is being exclusively occupied by a squatter; and
   3. take steps to address such occupation prior to the expiration of the limitation period.

¹ Moore v McIndoe, 2018 ABQB 235. Note that this 10-year period will restart if the concerned lands are purchased by a third party.
² At para 119