Ontario Civil

Civil Practice and Procedure

Limitation of actions

Real property

Plaintiffs’ possession was open, notorious, peaceful, adverse, exclusive, actual and continuous

Plaintiffs purchased property and were told by defendants, who owned abutting land, that they had to move their fence and air conditioner because it was on defendants’ land and they wanted to put up new fence on boundary. At time of purchase, chain link fence was located on defendants’ property, one metre south of boundary between properties. Plaintiffs’ action for declaration that they owned strip of defendants’ land between chain link fence and lot line between properties was allowed. Because of presence of chain link fence, plaintiffs’ possession was open, notorious, peaceful, adverse, exclusive, actual and continuous. Trial judge found that plaintiffs had established title to disputed land by adverse possession, and that they were entitled to nominal damages of $500. Defendants appealed. Appeal dismissed. Trial judge gave detailed reasons explaining why he accepted plaintiffs’ evidence that for relevant 10-year period prior to land being governed by land titles, their predecessors in title had adversely possessed disputed strip of land. Defendants’ case rested almost entirely on evidence of K, persons who had owned their lands for 10 months between 1988 and 1989. Evidence of all other predecessors in title was that during relevant 10-year period, chain link fence divided disputed land from that of defendants and incorporated it into plaintiffs’ land. Trial judge was entitled to find on evidence that while K had erected board fence on part of property, chain link fence was present and defined rear boundary of property while K owned it. He did not err in finding that statutory declaration relied upon by defendants simply reflected mutual mistake of all parties when chain link fence was boundary. There was no err to justify interference with trial judge’s decision. 

Beffort v. Zuchelkowski (2017), 2017 CarswellOnt 15478, 2017 ONCA 774, Robert J. Sharpe J.A., Robert A. Blair J.A., and Gloria Epstein J.A. (Ont. C.A.); affirmed (2016), 2016 CarswellOnt 1009, 2016 ONSC 583, Trimble J. (Ont. S.C.J.).

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