SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 11-30034
DATE: 2012-03-12

RE: Diane Clark, Applicant

AND:
Kayliegh Kwasney also known as Kayleigh Wilczynski and Piotr Wilczynski, Respondents

BEFORE: The Honourable Robert B. Reid

COUNSEL:
Michael Bordin, Counsel, for the Applicant
Ian Brisbin, Counsel, for the Respondents

HEARD: February 21, 2012

ENDORSEMENT

[ 1 ] This application is about a residential border dispute between the parties. It is framed as an adverse possession claim by the applicant. For reasons that will become apparent, is actually a battle between the ghosts of the parties’ predecessors in title.

Background facts:

[ 2 ] In 1996, the applicant purchased the property at 147 Laurier Avenue, Hamilton Ontario from Richard Wayne Broughton. He had acquired the property in 1995 from the estate of his parents who had resided there since 1963.

[ 3 ] In 2010, the respondents purchased the adjoining property at 151 Laurier Avenue from Robert Matthews. He had acquired the property earlier that year from the estate of his sister, Margaret Horgan. She and her husband purchased the property in 1967. Mr. Horgan died in the early 1990s and Mrs. Horgan died in 2010.

[ 4 ] On May 29, 1995, the properties were converted from the Registry system to Land Titles. The parties agree that no possessory title can be acquired by actions after the date of the conversion, but that by virtue of s. 51 of the Land Titles Act [1] any pre-existing period upon which a claim for possessory title may be based is preserved.

[ 5 ] In July, 2011, the respondents took steps to widen their single car driveway relying on the boundaries shown in a 1999 survey. The applicant objected, claiming that her predecessors had acquired possessory title over that portion of the respondents’ lot and this application was commenced.

[ 6 ] The dispute relates to a strip of land along the south side of the property at 151 Laurier Avenue. From the rear of the lot at the southwest corner, a wooden fence divides the two properties, ending at a point approximately opposite the northwest (rear) corner of the applicant’s home. According to the 1999 survey, the beginning of the wooden fence at the southwest corner is roughly on the property line, but it encroaches gradually onto 151 Laurier Avenue to the point where it ends. The maximum encroachment is approximately 0.4 m. However, if one follows the fence line through to the southeast corner of the property where it meets Laurier Avenue, the encroachment increases in the side and front yards of the properties to what appears to be in excess of 2 m. It is that wedge of property which appears from the street to be an undivided part of the applicant’s lawn that the respondents proposed to use for their driveway widening.

Applicable law:

[ 7 ] The test for extinguishment of title by adverse possession is an onerous one since the law generally protects the true owner of property and does not interfere readily with a registered title.

[ 8 ] The statutory period for establishing possession is set out in the Real Property Limitations Act [2] where, by virtue of sections 4 , 5(1) and 15 , one can acquire possessory title to a property and extinguish the registered owner’s title after a period of 10 years. The Act imposes an obligation on the holders of legal title to enforce their rights within 10 years after the possession of the property by the non-titled party begins, failing which the titleholders are prevented from asserting such a claim or defending against an adverse possessor.

[ 9 ] It is acknowledged that in most cases there are three elements which a claimant must prove to establish possessory title as referred to by Wilson J.A. writing for the Ontario Court of Appeal in Keefer v. Arillotta [3] :

In Pflug and Pflug v. Collins , 1951 80 (ON SC) , [1952] O.R. 519 at p. 527 … Mr. Justice Wells (as he then was) made it clear that a person claiming a possessory title must establish (1) actual possession for the statutory period by themselves and those through whom they claim; (2) that such possession of was with the intention of excluding from possession the owner or persons entitled to possession; and (3) discontinuance of possession for the statutory period by the owner and all others, if any, entitled to possession. If he fails in any one of these respects, his claim fails.

[ 10 ] Satisfaction of the first element requires that the possession must be open, notorious, peaceful, adverse, exclusive, actual and continuous. The failure of any one of those elements is fatal to the claim. [4] This is an example of the difficulty imposed by the law on parties who wish to dispossess registered owners. Some of the adjectives have obvious meaning that needs no elaboration. Being open and notorious (as opposed to clandestine) shows both that the claimant is using the property as if he was at the owner and also gives the true owner the ability to take action to protect his rights. “Exclusive” use connotes that the registered owner is not using the property. “Adverse” means that the claimant is in possession without the permission of the owner.

[ 11 ] In cases where both parties share a misunderstanding about the true ownership of the property, the second element of the test does not apply, namely that possession was with the intent to exclude the owner. If both parties share a mistaken understanding about ownership, it would make no sense for there to be a requirement for an intention to exclude [5] .

[ 12 ] The challenge for every claimant in an adverse possession claim is to establish facts that bring the case within the applicable legal principles.

The Facts:

[ 13 ] As noted, both the Broughtons who owned 147 Laurier from 1963 to 1995 and the Horgans who owned 151 Laurier from 1967 to 2010 are deceased.

[ 14 ] Since the applicant did not own the property during the period prior to the Land Titles conversion, she must rely on the evidence of others who can speak to the relevant period or on inferences to be drawn from conduct after the conversion. The respondents have the same problem, exacerbated by the fact that they have only been owners for short time, except that the onus of proof lies with the applicant.

The Rear Yard and Fence:

[ 15 ] Richard Wayne Broughton who inherited 147 Laurier swore an affidavit in support of the applicant. He deposed that in 1963 he participated in the building of the fence between the properties at the age of nine, together with his father and a memorable helper: former Hamilton Tiger Cats football player Bronco Nagurski. Mr. Broughton lived at the property between 1963 and 1974 and, after moving away from his parents’ home to another address in Hamilton, was a regular visitor. He stated that the area on the 147 Laurier side of the fence was treated as part of his parents’ yard without objection from the owners of 151 Laurier.

[ 16 ] By comparison, the affidavit evidence filed on behalf of the respondents on the point was by William Kamula, who has owned the property at 155 Laurier Avenue since 1961. He stated that “to the best of his knowledge” the fence was constructed by Mr. and Mrs. Horgan soon after they took possession of the premises in 1967. He also relates the details of conversations between himself and Mrs. Horgan as to the placement of the fence north of the southerly boundary of the property to allow the Horgans the ability to maintain the fence without trespassing. There is evidence from the applicant that Mrs. Horgan replaced the fence boards in or about 1997, and that in either 1997 or 2002 (depending on which witnesses’ recollection is correct) Mrs. Horgan refused to allow the applicant to construct a latticework extension on top of the fence.

[ 17 ] As between the two competing claims to the property south of the fence, I find that the evidence supports the applicant. Richard Wayne Broughton had actual knowledge of the circumstances during the relevant period. As well, his childhood memory of the fence construction was quite specific, including the identity of his father’s helper. He lived at the property and is qualified to say how the fenced area was used, and to note that there was no objection by the Horgans. The evidence of Mr. Kamula is less definitive, and is primarily based on hearsay from conversations with Mrs. Horgan. That evidence is not accompanied by sufficient reliability to invoke the principled exception to the hearsay rule. I do not consider it necessary to infer that the fence was built by Mr. and Mrs. Horgan based on their failure to permit a latticework extension and from their replacement of boards on the fence.

[ 18 ] I note that at the easterly end of the fence, a north-south section ties it to the premises at 147 Laurier, effectively sealing off the applicant’s back yard between the two premises.

[ 19 ] As result, I find that during the relevant period, being the 10 years prior to May 29, 1995, the applicant’s predecessors in title, by virtue of the fence, had established actual possession of the thin strip of the respondent’s property on the south side of the fence and that the fence itself formed the property line. The possession was open, notorious, peaceful, adverse, exclusive, actual and continuous. It is not possible to determine whether the fence was built under a mutual mistake as to the boundary line, or whether it was erected specifically as a trespass. However, whether by mistake or not, the fence itself is evidence of the intention to exclude everyone from that thin strip of land and the period of exclusion certainly met and exceeded the 10 year statutory period.

The Side/Front Yard

[ 20 ] The remainder of the disputed wedge of property between the east end of the fence and Laurier Avenue is more problematic because there is no structure to provide evidence of exclusion. Rather, it is an area of grass which is contiguous to and indistinguishable from the applicant's lawn and which ends at the concrete curb along the respondents’ driveway.

[ 21 ] The applicant deposes that since she became the owner of 147 Laurier Avenue in 1996, the gardens, shrubs and grass area to the south of the driveway at 151 Laurier have been maintained by herself, her ex-husband and hired groundskeepers. She states that the area has been used as if it was her own. It appears from the photographs that the disputed wedge of property consists primarily of lawn with some overhanging shrubs bedded along the north wall of the applicant’s home. The respondents depose that the Horgans shared in the maintenance of the area since about 1997 in the trimming of bushes and edging the driveway, sidewalk and municipal parking sign located on the disputed property. Those competing claims relate to a time after the Land Titles conversion.

[ 22 ] The applicant also deposes that she was given a copy of the 1999 survey by Mrs. Horgan but states that the boundaries were not discussed as they were never an issue.

[ 23 ] There was consensus amongst the witnesses for both parties that Mr. and Mrs. Horgan were vigilant in maintaining and protecting their property rights throughout their tenure. Although there is no consensus about the reason for ordering the 1999 survey by Mrs. Horgan, it is a reasonable inference that when she provided a copy to the applicant without taking any further action, Mrs. Horgan was confirming her understanding of the boundary line between the properties. By then the relevant limitation period for possessory title period had passed, and I have already expressed my conclusion about the property to the south of the fence. Suffice it to say that in keeping with her care for her property, it is unlikely that Mrs. Horgan had the survey prepared for any reason except to support her view of the boundaries.

[ 24 ] Richard Wayne Broughton provided evidence of the property use prior to the 1995 Land Titles conversion. He stated that all the lawn and shrubs between 147 Laurier and the driveway at 151 Laurier were maintained by his parents and himself, that his parents acted as though the property line ran along the edge of the driveway of 151 Laurier (where a concrete curb was constructed in about 1974) and that there were no boundary disputes. On that latter point, the parties were agreed. Mr Broughton deposed that it was his understanding that the property boundary between 147 Laurier and 151 Laurier was the south edge of the driveway at 151 Laurier and that the property to the south of the driveway belonged to his family. He adds that this was an understanding shared by his parents, although I consider that to be hearsay and not sufficiently reliable to be admissible. Mr. Broughton also recalls observing snow shovelling by Mr. Horgan who cleared snow from his driveway and sidewalk but stopped clearing the sidewalk at the southernmost edge of the Horgan driveway. He also recalls that while the Horgans objected to children playing on their property, they did not take any steps to limit him playing on the lawn area to the south of the Horgan driveway.

[ 25 ] On behalf of the respondents, Gary Kwasney deposed that he was contracted by Margaret Horgan to provide seasonal outdoor maintenance of the premises at 151 Laurier between 1996 and 2010, including grass cutting, edging, hedge trimming and the like. Mr. Kwasney is the father of the respondent, Kayleigh Wilczynski. He did not mow the grass on the disputed area of property since that task was performed by the owners of 147 Laurier. He trimmed the southern edge of the Horgan driveway, the grass around the municipal signpost located within the disputed wedge of property, and along the sidewalk.

[ 26 ] Long-time neighbour William Kamula deposed that he frequently shovelled snow for Mrs. Horgan from sometime in the early 1990’s until she died in 2010. He removed snow from the driveway and the sidewalk in front of the Horgan home including an area south of the southern curb of the driveway by approximately 3 m. which he deposed was his understanding of the southernmost boundary of the premises. The distance of his shovelling southerly on the sidewalk was disputed by the applicant. In shovelling the driveway for Mrs. Horgan, he shovelled snow onto the disputed property without objection.

[ 27 ] In summary, the disputed area south of the fence appears to be part of the applicant’s lawn. During the relevant period, the applicant’s predecessors in title cut the grass and used the property recreationally as if it was their own. Mr. Horgan was observed to clear snow as far as the edge of his driveway but no further to the south. More recently, the snow clearing on behalf of the Horgans was to the south edge of the disputed area, and edging was performed on behalf of the Horgans, in an area identified by the 1999 survey as belonging to the Horgan property.

[ 28 ] In my view, the claim of the applicant to the side and front yard portion of the disputed property fails in all three aspects of the test used to prove possessory title. Although the applicant and her predecessors in title used the area, there is no indication that they did so to the exclusion of the registered owner or that the use was adverse in that it was without the permission of the owner. It is more likely that the Horgans were content to allow the grass to be cut as part of the applicant’s lawn and to allow children to play there rather than to create an artificial distinction between the properties which would make no aesthetic sense. The respondents should not be negatively affected by that benign acquiescence. There is no reason to conclude that the Broughtons and the Horgans were mistaken about the location of the boundary. Without that mutual mistake, it would be necessary for the applicant to prove that the possession was with the intention on the part of the Broughtons to exclude the Horgan's from the disputed area. I am not convinced that the facts support that conclusion and find that the applicant has failed to satisfy the onus of proof. Finally, the third part of the test for possessory title is for the claimant to establish that his use of the land was inconsistent with the registered owner’s possession of it for the purposes for which the owner intended to use it. In this case, it is reasonable to assume that the use by the owner was a passive one with the area being a buffer between the south edge of the driveway and the property line. There is no indication that the Broughtons’ use of the area was inconsistent with the Horgans possession of it.

[ 29 ] Based on the foregoing, there will be a declaration that the boundary between the applicant’s property at 147 Laurier Avenue Hamilton and the respondents’ property at 151 Laurier Avenue Hamilton is defined in part by the existing fence line between the two properties and, in the area east of the fence, by the boundary shown in the registered title. The injunction dated September 15, 2011 is hereby vacated.

[ 30 ] If the parties are unable to resolve the issue of costs of this motion and of the injunction motion consensually, I am prepared to receive written submissions according to the following timetable: the parties are to exchange bills of costs together with brief written submissions within two weeks of this date. Those submissions and any reply submissions by either party are then to be filed with the court by no later than three weeks of this date.

Reid J.
Date: March 12, 2012

[1] R.S.O 1990, c. L.5

[2] R.S.O. 1990, c. L.15

[3] (1976), 13 O.R. (2d) 680 at 692 (Ont. C.A.)

[4] Teis v. Ancaster (Town) , 1997 CarswellOnt 2970 (Ont. C.A.) at par. 13

[5] Ibid . at paras. 23-25