Common law test for possession

1. Intention to control

2. Actual physical control

Pierson v Post, Keron v Cashman, Popov v Hayashi

Steps in Adverse Possession Analysis

Step 1a: adverse possession (intention + control)

Step 1b: inconsistent use test

Step 2: public benefits test

Test for Adverse Possession (Kosicki)

1. actual, open, notorious, constant, continuous and peaceful possession of the subject land for the statutory period (e.g. 10 years, 20 years, 40 years);

2. an intention to exclude the true owner from possession; and

3. effective exclusion of the true owner for the entire statutory period

Inconsistent Use Test

“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)

Public Benefit Test:

1. Land was purchased by or dedicated to the municipality for the use or benefit of the public; and

2. Municipality has not waived its presumptive rights or acknowledged or acquiesced to its use by the private landowner.

Justifications for Adverse Possession (Kosicki)

1. Use it or lose it
2. Highest and best use
3. Protecting settled expectations

Three types of real property

1. Crown land
2. State-owned property
3. Private property

Committee for the Commonwealth

Limits on state-owned property

Why is public property important? Can governments treat state-owned property in the same way as private owners?

To what extent do the decisions in Harrison v Carswell challenge the distinction between “public” and “private” property?

Exercise: Model Bylaw

Taking into account the facts in last week’s hypothetical and assuming the Model Bylaw has been adopted by the Halifax Regional Municipality:

1. Do you think the model bylaw would survive a section 7 Charter challenge? Why or why not?

2. What recommendations. if any, would you make to HRM to amend the bylaw?

Framing section 7 Charter challenges

Are these cases about “property rights” in city parks? Why or why not? Why does this framing matter?

“… an inevitable conflict between the need of homeless individuals to perform essential, life-sustaining acts in public and the responsibility of the government to maintain orderly, aesthetically pleasing public parks and streets.”

(Adams, para 1, quoting Pottinger v Miami)

Emerging right to shelter

1. Availability / adequacy of shelter spaces

2. Overnight vs daytime shelter

3. Process and procedure

Adams v Victoria (City)

“[The impugned sections of parks bylaw are] inoperative insofar and only insofar as they apply to prevent homeless people from erecting temporary overnight shelter in parks when the number of homeless people exceeds the number of available shelter beds in the City of Victoria”.

Adams BCCA at para. 166

“The constitutional right as articulated in Adams was thus circumscribed in two respects: (1) the right is exercisable when the number of homeless outnumbered the available indoor sheltering spaces, and (2) the right to erect a temporary shelter is confined to overnight hours.”

Bamberger v Vancouver

Right to Shelter - “Adequacy”

“[I]t is now recognized that it is not just the number of available indoor sheltering spaces that frames the right but also whether those spaces are truly accessible to those sheltering in parks.”

Bamberger v Vancouver, citing Shantz

Right to Shelter - Daytime Sheltering

Model Parks Bylaw. s 3(b)

“…a Homeless Person may…erect and occupy a Temporary Shelter on a City Property listed in Schedule ‘A’”…"

Process and Procedure

Model Bylaw: Wrap Up

Are there other issues or problems related to the model bylaw that we did not identify in our discussion today?