Adverse Possession

Week 10

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Category: Property 2025-26

Agenda

Review: Posession
Popov v Hayashi
Adverse Posession

Review: Possession

Locke, Second Treatise

Possession as the basis for property in a “state of nature”.

Common law test for possession:

Intention to control
Actual physical control

Pierson v Post, Keron v Cashman

Relative nature of possession

“That the finder of a jewel, though he does not by such finding acquire an absolute property right of ownership, yet he has such a property as will enable him to keep it against all but the rightful owner”

Armorie v Delamirie

Popov v Hayashi

A contemporary Pieson v Post: who “owns” the baseball?

Facts

Gray’s Rule = “complete control” is established only when the momentum of the ball AND the momentum of the person catching the ball come to rest (for example, the person jumping to get the ball comes to rest on the ground with the ball safely in their glove).
Bernhardt/Finkelman Rule = first possessor of a baseball must be “actively and ably engaged in efforts to establish complete control. Moreover, such efforts must be significant and they must be reasonably calculated to result in unequivocal dominion and control at some point in the near future.”

Steps:

Which rules does the court choose and why? Which interests are recognized?
Why does this rule not settle the matter? What additional interest is recognized by the court (Popov)?
How does the court reconcile or “balance” the competing interests?

Gray’s Rule

“A person who catches a baseball that enters the stands is its owner. A ball is caught if the person has achieved complete control of the ball at the point in time that the momentum of the ball and the momentum of the fan while attempting to catch the ball ceases. A baseball, which is dislodged by incidental contact with an inanimate object or another person, before momentum has ceased, is not possessed. Incidental contact with another person is contact that is not intended by the other person. The first person to pick up a loose ball and secure it becomes its possessor.”

Bernhardt/Finkelman Rule

“[P]ossession occurs when an individual intends to take control of a ball and manifests that intent by stopping the forward momentum of the ball whether or not complete control is achieved.” They must be “actively and ably engaged in efforts to establish complete control. Moreover, such efforts must be significant and they must be reasonably calculated to result in unequivocal dominion and control at some point in the near future.”

Key Lesson

The legal test for establishing actual, physical control as the basis for possession is highly contextual. You can’t “wrap your arms around a whale”.

In contemporary jurisprudence, that context is strongly motivated by functional reasoning about the consequences of a particular rule.

Weekly Problem

Nova Scotia currently has no provincial legislation granting immunity from claims of adverse possession on any class of public lands. Would Lin be successful in claiming adverse possession over the area in the park they’ve used for gardening (assuming they had gardened there for more than the 20-year limitations period for such claims established by statute)?

Adverse Possession

How would you describe what is being claimed in cases of “adverse possession”?
What is the result of a successful claim?
Why would law recognize such a claim?

Justifications for Adverse Possession (Kosicki)

Use it or lose it
Highest and best use
Protecting settled expectations

Test for Adverse Possession (Kosicki)

actual, open, notorious, constant, continuous and peaceful possession of the subject land for the statutory period (e.g. 10 years, 20 years, 40 years);
an intention to exclude the true owner from possession; and
effective exclusion of the true owner for the entire statutory period

Piper v Stevenson, 1913 (ONCA)

What does “possession” mean in the context of an adverse possession claim (“actual, open, notorious, constant, continuous and peaceful…”)?

Piper (plaintiff) owns title to the neighbouring lots of Marmot street (adjacent to the disputed lands)
Piper builds a fence around all the lands (her own and adjacent) in 1901; farmed on the lands for more than 10 years
Erected buildings about 4-5 years after building the fence and then when to live there
Eventually around 1912 Stevenson, the title holder, attempted to regain possession (e.g. build their own fence)

Issue: what does it take to establish actual possession by an AP?

Actual: land is actually used by the squatter without approval by the owner. Piper doesn’t live on the land for the whole period, only works the land (but fence was there)
Continuous: for the duration of the statutory limitation period. in first 4-5 years, plaintiff absent during the winter months (when not farming) - court says still under plaintiff’s control
Exclusive: Defendant entered into “his” lots at some point during the statutory period - court say this is “merely formal entry” as opposed to effective entry – defendant would need to do something like break down the fence
Open and notorious: possession by squatter is open to the world and visible by others, including the true owner. In Piper fence and farming activities were easy to observe by the public

Keefer v Arillotta

Inconsistent Use

“Acts relied on as dispossessing the true owner must be inconsistent with the form of enjoyment of the property intended by the true owner.” (Keefer)

Kosicki v Toronto

Are public lands immune from claims to adverse possession?

SCC: in Ontario, immunity depends on statutory exceptions
ONCA: does the “public benefit test” apply in jurisdictions where immunity is not governed by statute?

Public Benefit Test:

Land was purchased by or dedicated to the municipality for the use or benefit of the public; and
Municipality has not waived its presumptive rights or acknowledged or acquiesced to its use by the private landowner.

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