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Squatters Rights (Enroachment)
Matthew Harmes
Matthew Harmes

Squatters Rights (Enroachment) Actually, the legal term is possessory title. Maybe a neighbour has taken over part of your property (ie planted some trees or put up a fence etc on what you think is your property). What are your respective rights? Firstly, unless you can locate survey stakes (ie usually iron bars in Southern Ontario and stakes with reflectors up north), it is critical to get a survey to determine where exactly the boundary is located. In order for your neighbour to establish a claim, there are some requirements under the law: 1. The possession of the subject property by the neighbour must have been “open, notorious, peaceful, adverse, exclusive, actual and continuous”. Various court cases over the years have defined what this means. 2. The neighbour must have had the intention of excluding you from the subject property and also, your neighbour must have mistakenly believed that he or she owned the land. 3. The neighbour must have effectively excluded you from using the land for a period of at least 10 years. Now the tricky part. It is critical to determine when the encroachment took place. Most lands in Ontario are now in Land Titles or a variation of it. That was not always the case. In many areas of Southern Ontario, the property was in a system known as Registry. Most of the Registry properties were converted over a period of years, County by County. For example, in Norfolk County, most of the conversion took place in 2007. Possessory title is very difficult to establish for properties in the new system (Land Titles). The simplest situation (in Norfolk County for property that was in Registry) would be where the above requirements were satisfied for 10 years prior to 2007. This is a complicated area of the law so if it is important for your situation to know your rights, it is best to consult with a lawyer with expertise in this area of real estate.