Boundary disputes are among the most common and disruptive issues encountered in Ontario real estate transactions. While many such disputes arise from survey discrepancies or long-standing encroachments, some may relate to the concept of adverse possession. Often misunderstood and frequently overlooked, adverse possession remains a legally relevant concept in Ontario, particularly in the context of older properties and historic land use patterns.

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Adverse possession refers to a legal doctrine under which a person (who is not the registered owner of the land in question), may acquire title through long-term occupation of said land. As defined in Black’s Law Dictionary, adverse possession is a “method of acquiring title to real property by possession for a statutory period where the possession is actual, open, notorious, exclusive, hostile, and continuous, such that it bars the true owner’s right to recover the land”. In Ontario, this doctrine is governed by the Real Property Limitations Act, RSO 1990, c L.15, which sets out the applicable limitation periods and legal framework for possessory claims. Although modern land registration has significantly curtailed its application, adverse possession continues to present risk where historic occupation, informal boundary arrangements, or unmanaged land use exists.

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To establish adverse possession in Ontario, a claimant must satisfy three essential legal requirements. There must be:

1. actual possession of the land, meaning physical occupation or control;

2. the claimant must also demonstrate an intention to exclude the true owner, assessed objectively through conduct rather than stated intention; and finally

3. the possession must be open, notorious, peaceful, exclusive, and continuous for a period of at least ten years. These principles were clearly articulated by the Ontario Court of Appeal in Keefer v. Arillotta (1976), 13 OR (2d) 680 (CA) and continue to guide the courts today.

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Ontario courts have repeatedly emphasized that adverse possession is an exceptional remedy and must be strictly proven. In Masidon Investments Ltd v. Ham (1993), 15 OR (3d) 385 (CA), the Court of Appeal confirmed that casual, shared, or neighbourly use of land will not satisfy the legal threshold. Similarly, in Teis v. Ancaster (Town) (1997), 35 OR (3d) 216 (Gen Div), the Court held that permissive use or acquiescence by the true owner defeats a claim. These decisions underscore that long-term occupation alone is insufficient without clear evidence of exclusive and adverse use.

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A critical consideration in any adverse possession analysis is whether the land is registered under the Registry system or the Land Titles system. The Registry system is an older framework that records instruments affecting title without guaranteeing ownership, meaning long-term possession can still give rise to competing claims. By contrast, the Land Titles system provides guaranteed title and is designed to promote certainty of ownership by largely eliminating unregistered interests. Most properties in Ontario are now registered under Land Titles, which generally prevents new adverse possession claims from arising. However, claims may still succeed where the claimant can demonstrate that the full ten-year period of adverse possession was completed prior to conversion. This distinction is particularly relevant for rural properties, cottages, and older residential parcels.

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Boundary disputes involving fences, driveways, walkways, and landscaped areas are the most common factual settings in which adverse possession concerns arise. In practice, these issues frequently come to light during the transactional process, particularly when a property is being sold, refinanced, or redeveloped. Title searches, lender requirements, surveys, and municipal compliance reviews can reveal discrepancies between registered boundaries and actual use on the ground. What may have appeared to be a minor or long accepted encroachment- can quickly become a material issue affecting title, financing, or closing timelines. In development and severance contexts, boundary inconsistencies may also trigger zoning, setback, or access concerns, further elevating legal risk.

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Property owners can reduce the risk of adverse possession claims through proactive and documented measures. Updated surveys are often the first step in identifying potential encroachments or possessory issues. Where use of land by a neighbouring owner is identified, addressing the issue promptly through written agreements, licences, boundary acknowledgements, or corrective transfers can prevent possessory rights from accruing. In some cases, title insurance endorsements, negotiated adjustments, or formal boundary agreements may be appropriate to facilitate a transaction. Regular legal review is particularly advisable for older properties or those with historic boundary arrangements, as early intervention can preserve marketability, protect financing, and avoid costly disputes at a later stage.

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At Kormans LLP, our real estate lawyers assist clients throughout Ontario with real estate closings and many related issues. By taking a practical and preventative approach, we can assist in advising property owners and purchasers to address risks early, protect their interests, and move forward with confidence. If you have questions about a boundary issue or title concern, or for assistance with your real estate closing - we encourage you to contact our real estate team at 905-270-6660.

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