Most of the time when we run into issues involving questions around whether an estate is the owner of property, or someone else is the owner of property, it is usually in the context of both sides of the table making claim to the property. However, a recent decision from the Ontario Superior Court of Justice shows that sometimes the representatives of an estate run into a potential conflict, but there is nobody to represent the other side.

A strip of land does not belong to applicants

The applicants are a family who along with the deceased father/husband, bought a large parcel of land in 1978. When the husband/father passed away his interest fell to the mother of the family. When the land was purchased they had thought that it was bounded by two streets – Scott Street on the west, and Mowat Street on the East.

It wasn’t until 2019 that the family discovered their understanding of the boundary was wrong. It turned out that a half-acre strip of the land separating their property from the Scott Street boundary had been sold in 1948 to another family. The land had been sold to an individual named Gordon Wyatt, and the issue before the court was to determine who the land belonged to. The applicants had always treated this land as their own, though it remained undeveloped. They sought an order vesting title in their names as tenants in common since they maintained open, exclusive, continuous and peaceful possession of the subject property since 1978. It was their position that their adverse possession of the subject property entitled them to an order granting them legal title to it.

While the Wyatt family had certainly owned the half-acre of land at some point, the applicants had been unable to serve the family or locate any beneficiaries of the estate. Gordon Wyatt and his wife are deceased, as is the executor of their estate. Gordon Wyatt died in 1972, and his wife died one year later. In addition, neither Gordon nor his wife made any reference to children in their wills.

The applicants made significant efforts to find members of Wyatt family, including looking for other property that had been owned by Gordon Wyatt at the time of his death to see who it was passed on to and searching the obituaries of the family for any mention of surviving members of the family. They also published a notice in a local newspaper advertising their intention to file for title to the property.

Applicants establish possession

The court noted that for the applicants to establish a possessory title to the property, they must have demonstrated actual possession of the property, and it must have been of an open, notorious, peaceful, adverse, exclusive, actual, and contentious nature. In this case, the court found that while their use of the property was limited in nature (it was undeveloped), they had met those requirements. There was no evidence that anybody else had made any use of the property since the applicants bought the land around it. As a result, the court found the “possession of the applicants of the subject property has been open, notorious, constant, continuous, peaceful and exclusive of the rights of the true owners for over 40 years, including over 20 years before the property was registered in the Land Titles system.”

Contact NULaw in Toronto to obtain proactive legal advice and plan your intergenerational wealth retention strategy. Our estate law team provides unparalleled personal guidance for all your estate planning needs. Understand your options, minimize your legal and financial risks, and protect your loved ones. Contact us online or at 416-481-5604 to book a consultation today with estate planning lawyer Lex Arbesman.


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