Does adverse possession really apply in the Balm Beach case?

On July 7th of this year, I published a blog dealing with the fight between the owners of part of a beach and the general public in the tiny town of Balm Beach, Ontario. John and Elisabeth Marion purchased the property many years ago and their property extended to the water’s edge of the beach. Despite that, members of the general public have consistently used that part of the beach even before the Marions purchased their property. The Marions subsequently built a fence across the beach thereby denying access to the beach by members of the general public.

I raised an issue in my blog with respect to adverse possession (squatter’s rights) based on the fact that for many years, neither the Marions nor the previous owners notified the public that their part of the beach was off limits to members of the general public. It is my intention in this blog to explain in greater detail to my readers the specifics of adverse possession.

Generally when trespassers assert that the ‘Real Property Limitations Act’ applies in cases such as this one, it places a burden on the paper title owner to actively dispossess the adverse possessor within the 10- year limitation period after they have purchased the property. If they don’t notify their trespassing neighbours within 10 years that they are not to use the owner’s property for their own use, the owners have no right to object to the use of the land by their neighbours. It would appear on the surface; that is what in fact has occurred in the fight between the Marions and the people of Balm Beach. It was only recently, many years after the Marions purchased the property; that they objected to the public using the beach. The Marions put up a fence right to the water’s edge to show their objection.

That being as it is, it may have been too late for the Marions to express their objections. Had they placed a sign on the beach within ten years after they purchased the property, that stated that no one was to trespass on the beach, they could have legitimately barred anyone from crossing the beach. Apparently, they did not put their neighbours (the public) on notice that they couldn’t use the beach for their own purposes within ten years after they purchased the land. They left themselves vulnerable to adverse possession by anyone wishing to use the beach. For many years, members of the public have treated the Marions’ beach as being in the public domain.

If the inconsistent use test applies, that is, the Marions didn’t use the beach solely for themselves, the public can argue the continuous use by the general public for a period longer than the Marions have owned the beach without notice of objection by the Marions within the ten-year limitation, excludes the Marions from further possession of the beach.

If this matter goes to trial, the court will have to ask itself a number of questions before making a decision, those questions being;

Does the court have to consider the complete and total passive acquiescence of the owner of the land to the open, notorious, adverse, peaceful, actual, and continuous possession of their land by the public for well over 30 years, which in itself afforded evidence that their use of the land was inconsistent with the owner’s intended use of the land?

Does the test of inconsistent use apply to a situation where the public knew that it did not own that part of the beach in dispute, but believed it had acquired a rightful use of the beach in dispute?

Even if no colour of right exists by members of the public, can the public’s intention to continue using the beach as its own be considered valid based on the dictum of squatter’s rights?

John and Elisabeth Marion have probably paid property taxes for the beach since it purchased the property. Further, they probably maintain a blanket liability insurance policy that includes coverage for the beach. These factors by themselves would clearly show that the Marions thought of the beach as their own. They may even have used the beach themselves if only to walk to the water. But as you can see, even if they used the beach themselves on occasion, they in reality were sharing the beach with the many people who used it also to picnic on or whatever.

However, many property owners have paid taxes and insurance on their property and still lost the sole use of it because of squatter’s rights exercised by their neighbours.

The public potentially may meet the requirement of intending to exclude the true owner’s right to partition the beach for their sole use, given that the members of the general public who used the beach consistently for a great many years did not know the Marion’s intended use for the land, and that throughout the time the general public used the beach as if it was in the public domain, the Marions did not object until well after the ten-year limitation had passed.

The Marions can assert that true owners of property do not have to make immediate use of their land thereby risking losing their rights as owners by reasons of trespass/use. Further, they can argue that the inconsistent use test does not apply to persons who possess the land under a bona fide belief that they own the land.

However, where a claimant knows that it is not the owner of land and seeks to claim adverse possession by advertent conduct, the acts relied upon must be inconsistent with the intended use of the true owner. In this case, the Marions didn’t intend that the beach was to be used entirely for their sole use until long after the ten-year limitation period had elapsed.

The Real Property Limitations Act, R.S.O. 1990 c. L. 15, establishes a ten year limitation period in which, a dispossessed owner must bring an action to recover possession once a right to possession has accrued: (Section 4 states)

“No person shall make an entry or distress, or bring an action to recover any land or rent, but within 10 years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to some person through whom the person making or bringing it claims, or if the right did not accrue to any person through whom that person claims, then within 10 years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to the person making or bringing it.”

Section 15 states:

“At the determination of the period limited by this Act, to any person for making an entry or distress or bringing any action, the right and title of such person to the land or rent, for the recovery whereof such entry, distress or action, respectively, might have been made or brought within such period, is extinguished.”

Thus, by the auspices of section 15, where a person’s right to recover land is barred by section 4 – the person has not attempted to recover the land within 10 years after the right to bring an action or make entry or distress accrued – the right and title of the owner of the land is extinguished.

I know of no notice given by the Marions that was given to the general public within ten-years of the Marions purchasing the beach in front of their house that the beach was off limits to everyone so it would appear that the Real Property Limitations Act applies. It probably applied even before the Marions purchased the land if the previous owners had not given notice as required that no one was to trespass on their land. Now you know why farmers and others who own tracts of land that are not specifically in use by the owners place “No Trespassing” signs on the fences of their property. The signs are the official notice to keep out so that squatters can’t claim it as their own.

This case will be an interesting one to follow as it progresses. I will keep you informed.