Adverse possession – Court of Appeal decision

This decision concerned the concept of getting your neighbour’s property by way of adverse possession.

The property at issue was part of the land between two homes in Toronto.  The previous owners of the house belonging to Paul Gemmink’s clients had allowed their neighbour to put a locked gate at the street side of the entire laneway since they did not need it to access their backyard.  The previous neighbours had always had an excellent relationship.  The evidence was that there had always been an agreement between the neighbours that part of the laneway continued to belong to people who previously owned the house now belonging to Paul’s clients.  The current neighbours disagreed and said that the property now belonged to them.  They had therefore sued for a declaration that the property did not belong to Paul’s clients.

Both the Superior Court judge and the Court of Appeal agreed with Paul Gemmink, that the new neighbours had not met the onus that was on them to establish adverse possession.  Although the locked gate could be considered as some evidence of an intent to exclude the previous owners of Paul’s clients’ property from the strip at issue, that alone was not enough when the evidence supported the position that there was no such actual intent.  2019 ONCA 331