Acquisitive prescription is a mechanism that allows a person to become the owner of a property simply through the passage of time, even if another person originally owned that property.
For example, if a neighbor’s fence encroaches on your property for 10 years without objection, the neighbor may have the right to have the encroached-upon parcel declared as belonging to them.
Acquisitive prescription can lead to unpleasant surprises regarding property, real estate, or neighborly relations. It is essential to be fully aware of your rights to prevent any unfortunate situations.
Acquisitive Prescription: Definition
According to Article 2910 of the Civil Code of Québec (hereinafter “C.C.Q.”), acquisitive prescription is a means by which a person obtains a right of ownership through the passage of time.
The period of prescription is 10 years. Consequently, a person who has possessed real property for 10 years as if they were the owner may file a lawsuit to be declared the true owner of said property.
“Real property” refers to any property that cannot be moved or is defined by law as real property: land, a building, a structure permanently or durably affixed to the ground, trees, etc.
Different rules apply to personal property. Please feel free to consult an attorney if you would like more information
Criteria for Adverse Possession
For adverse possession to occur, a person must be in possession of the property as its owner.
Possession is defined as the actual exercise of a right over the property, with the intention of acting as the holder of that right. Article 922 of the Civil Code of Québec (C.C.Q.) lists four criteria that possession must meet to be valid:
- It must be peaceful;
- It must be continuous;
- It must be public;
- It must be unequivocal;
If any of the four criteria is not met, then a claim to ownership of the property will not be permitted.
Peaceful Possession
Peaceful possession is defined as possession without violence or overt opposition. In other words, it did not begin with violence and is exercised without coercion or violation of any notice issued by a neighbor.
In the decision Thibeault v. Tremblay, the court ruled that there was no peaceful possession of a shoreline because the parties had been openly disputing the matter in court for several years.
Continuous Possession
Possession is continuous if it is uninterrupted for 10 years. The person must take specific actions demonstrating possession during this period: maintenance, use of the property, payment of expenses related to the property, etc.
Public Possession
Possession is public if it is exercised openly and is known to others. It is not public if it is exercised clandestinely or in secret.
The true owner must have been able to become aware of it. This criterion is met as long as possession is exercised openly.
Unequivocal Possession
Unequivocal possession means that there is no uncertainty or ambiguity regarding its exercise. In other words, it is clear that the person claiming possession intends to act as the owner of the property.
If other persons exercise rights over the property in dispute or oppose the other party’s possession, then the possession is equivocal. In other words, possession must be exclusive and unopposed by anyone to be unequivocal.
For example, in the case of 96660 Canada Ltd. v. 7505493 Canada Inc., the court ruled that possession of a wall was equivocal because the parties had taken steps to significantly improve or repair it. Since the parties had behaved as co-owners of the wall, their possession was considered equivocal.
The Role of Good Faith
Good faith is not a factor in the acquisition of real property through adverse possession. In other words, it is not necessary to believe that one is the true owner in order to acquire land through the passage of time.
As explained in the decision Proulx v. Immeubles des Moulins Inc., possession is established by the parties’ actions and not by their knowledge of the actual owner of the disputed property. Thus, a person who knows or suspects that they are not the true owner of a piece of land may still acquire it by possession if they act as its owner for ten years.
The court considers only the intent to act as the true owner. This means that it is not necessary to prove that the person knew the land did not belong to them, but rather to prove that they did not act as an owner or that their possession was challenged before the ten-year period expired.
Fraud vs. Bad Faith
According to Article 927 of the Civil Code of Québec, a person who obtains property through theft or fraud cannot claim possession of it.
It is important to distinguish between bad faith and fraud. Acting in bad faith does not mean committing fraud. To commit fraud, one must “take a positive action intended to deceive the owner.” Bad faith means knowing that one’s title to property is invalid, whereas fraud means taking concrete actions to deceive the other party.
In the case of Repos Saint-François d’Assise v. Sabelli, a cemetery installed concrete blocks to mark the boundaries of its property. Its neighbor moved them without its knowledge to deceive it about the true boundaries of their properties. Consequently, the Court of Appeal concluded that fraud had occurred and therefore there was no possession by acquisitive prescription.
Conclusion
Acquisitive prescription is a very specific mechanism that can shift ownership rights. Each case must be analyzed based on the specific facts involved. It is important to seek legal advice if there is any doubt regarding the true owner of a property.
Do you think you are in a situation where acquisitive prescription might apply?
Feel free to contact our civil law lawyers, who will advise and assist you in the event of a dispute.
