Theodoros Maras and Chrisoula Sourasis v. George Milianis

COURT FILE NO.: CV-13-489949

DATE: 2014-06-06

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Theodoros Maras and Chrisoula Sourasis, Applicants

– AND –

George Milianis, Respondent

BEFORE: Justice E.M. Morgan

COUNSEL: Nicolas Canizares, for the Applicants Duncan Boardman, for the Respondent

HEARD: June 5, 2014

ENDORSEMENT

[1] Can a claimant have possessory title if the registered owner entered the property only once during the claimant’s ten years of otherwise undisturbed adverse possession?

I. The dispute

[2] The Applicants own and reside at 2 Milton Road, Toronto, and the Respondent owns and resides in the house immediately to the north, at 4 Milton Road. There is a 70 foot long, 10 foot wide driveway between the two houses, used primary by the Respondent to park his car.

[3] The property line runs the length of the driveway, such that the southerly 3 feet of the entire stretch of the driveway belong to the Applicants and the balance to the north of that line belongs to the Respondent. Both sides agree that the Respondent has a legal right of way over the portion of the driveway for which the Applicants are the registered owners. This right of way was apparently granted many years ago by the owners of 2 Milton Road in order to facilitate access to the garage at the rear of 4 Milton Road.

[4] At the top of the driveway is a small triangular shaped piece of land originally used to make it easier for the owners of 4 Milton Road to turn their car into the garage. This triangular parcel is entirely within the bounds of 2 Milton Road, with no right of way in favour of 4 Milton Road. The triangle is bounded on the north by the property line between the two properties, on the east by the top of the driveway, and on the west by a diagonal line demarked by a fence or parallel fences (the “Triangle”).

[5] The Respondent claims title to the Triangle by adverse possession. The Applicants seek a declaration that they are the rightful owners of the Triangle.

[6] Further, at the western end of the driveway the Respondent has put up a large board fence on the south side of the driveway – i.e. on the Applicants’ side. The Respondent has also put interlocking brick across the width of the driveway for a portion of it at the top end, and has erected a gate across the width of the driveway at roughly the middle. The Respondent did not seek the Applicants’ consent for any of these changes, and the Applicants seek injunctive relief requiring removal of the obstructions and an end to the trespasses to their property.

II. The adverse possession claim

[7] The Court of Appeal observed in Teis v Town of Ancaster (1997), 1997 CanLII 1688 (ON CA), 35 OR (3d) 216, at para 8, that, “[u]nder ss. 4 and 15 of the Limitations Act, the interest of the true owner of land may be extinguished by a person who has been in adverse possession of that land for ten years”, and that “[a]t the end of the ten year period these provisions bar the remedy and extinguish the title of the true owner.” Accordingly, if the Respondent has fulfilled all of the requirements of possessory title for a 10 year period, the Applicant will have lost its title to the Triangle despite being the paper title holder.

[8] In Keefer v Arillotta (1976), 1976 CanLII 571 (ON CA), 13 OR (2d) 680, at 692 (Ont CA), the Court set out the three things that a person claiming possessory title must establish: “(1) actual possession for the statutory period by themselves and those through whom they claim; (2) that such possession 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.” It is these three features of adverse possession which must be demonstrated for a continuous 10 years if the Respondent is to have his claimed possessory right to the Triangle displace the Applicant’s title.

[9] On January 20, 2001, the two properties were converted into the Land Titles system. The concept of adverse possession does not apply to lands registered under the Land Titles Act, RSO 1950, c. 197; accordingly, the Respondent would have had to acquire his rights prior to the conveyance date. The Land Titles Act does protect a crystallized possessory title, provided that the requisite ten year period has elapsed as of the date of conversion into the Land Titles system: Gatz v Kiziw, 1958 CanLII 12 (SCC), [1959] SCR 10.

[10] Did the predecessors to title to the Respondent in 4 Milton Road have possessory title by January 20, 2001? As of that date, the Triangle was fenced in a way that suggests that the owners of 2 Milton Road were deprived of access to the area. The problem is that it is virtually impossible today to establish the starting point for this exclusion.

[11] The owners of 4 Milton Road from 1970 to 1991 were the Christodoulou family. The older generation of that family is no longer alive, and testimony of the son of those owners, Demetrius Chrisodoulou, is spotty as he was a child at the relevant time. Demetrius was born in 1973. He remembers the chain link fence, but has no reliable memory of when the chain link fence separating the Triangle from 2 Milton Road was installed.

[12] The successor in title to the Chrisodoulou family, Diane Merlevede, owned 4 Milton Road from September 1991 until December 20, 2002 when she sold it to the Respondent. Ms. Merlevede has not provided any evidence in this proceeding.

[13] As for 2 Milton Road, the only prior owner that has provided evidence here is Robert Gouinlock, who owned the property from March 31, 1988 until May 7, 2007 when he sold it to the Applicants. Mr. Gouinlock deposes that there was a chain link fence separating the Triangle from his property when he first moved into 2 Milton Road, but he has no idea when that fence was erected.

[14] It should be noted that section 34 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, stipulates that any claim of adverse possession requires “strict proof”. The Respondent cannot establish possessory title by inference; rather, he must bring specific evidence of 10 year exclusive possession.

[15] Since no one can say when the chain link fence was erected, no one can say precisely when the Triangle was separated from the rest of 2 Milton Road. All that can be definitively said on the current state of the evidentiary record is that the fence was there when Mr. Gouinlock became owner of 2 Milton Road on March 31, 1988.

[16] At some point, Mr. Gouinlock built a wooden fence parallel to the diagonal chain link fence. This fence did not change anything since it supplemented the existing chain link fence, but it reinforced the fact that Mr. Gouinlock, as owner of 2 Milton Road, was fenced out of the Triangle. If nothing happened to break the exclusive possession of the Triangle by the owners of 4 Milton Road for 10 years from the date of Mr. Gouinlock’s purchase in 1988, adverse possession would have crystalized for those owners prior to the conversion to Land Titles in 2001. In that case, the owners of 2 Milton Road would have lost title to the Triangle.

[17] In Warren v Yeoll, 1943 CanLII 66 (ON CA), [1943] OR 762, the court cited Serren v Pearson (1887), 1887 CanLII 39 (SCC), 14 SCR 581 for the proposition that, “[t]he existence of a fence is not occupation at all – it is indeed evidence that such occupation as exists is exclusive, in that a fence is often intended to exclude from the fenced property; but, while it is evidence it is not conclusive.” Thus, despite the fact that there was a fence between the Triangle and the rest of 2 Milton Road, the Respondents must still show that the possession of the Triangle by the owners of 4 Milton Road was exclusive and continuous for the requisite period.

[18] The cases make it clear that it does not take much by the paper title owner to interrupt the other party’s exclusive possession. As the Prince Edward Island Court of Appeal put it in National Trust v Chriskim Holdings Inc., 1990 CanLII 2644, at 10, “every time Cox (the land owner) put his foot on the land it was so far in his possession, that the statute would begin to run from the time when he was last upon it.” There is little doubt from Mr. Gouinlock’s testimony that he always considered the Triangle to be part of 2 Milton Road. The only question is whether he ever protested the possession by the owners of 4 Milton Road or physically interrupted their exclusive possession.

[19] Mr. Gouinlock deposed that he cleaned the windows and repaired the brick on the north wall of his house on a semi-annual basis, and that to do so he walked on his property along the length of the driveway. Counsel for the Applicants submits that this amounts to routine use of the disputed area of the property, and that it undermines the supposed exclusive possession by the owners of 4 Milton Road.

[20] Counsel for the Respondent responds by pointing out that the area accessed by Mr. Gouinlock to work on the side of his house does not include the disputed Triangle. He submits that the registered owner has to disturb the adverse possession claimant’s exclusivity in the actual land over which possessory title is claimed, and not just show that he has visited his own adjacent land.

[21] I agree with counsel for the Respondent on this point. Mr. Gouinlock’s semi-annual access to the strip of land near, but not in, the Triangle claimed by the Respondent is of no moment; indeed, if anything it might tend to support the Respondent’s claim that the owners of 2 Milton Road avoided entering the fenced-off Triangle.

[22] That said, Mr. Gouinlock also deposed that on at least one occasion, in 1996, he entered the Triangle in order to cut down what he called the “swamp maple trees” located in the middle of the Triangle. This testimony is uncontroverted; the owner of 4 Milton Road at the time, Ms. Merlevede, has not provided any evidence, and Mr. Gouinlock himself has no stake in the outcome of this Application and has no reason not to be entirely truthful.

[23] As the record stands, the exclusive possession of the Triangle by the owners of 4 Milton Road was interrupted in 1996, and so did not last 10 consecutive years from Mr. Gouinlock’s purchase in 1988. As the National Trust case illustrates, the adverse possession clock would have started over in 1996. Since the conversion to Land Titles took place in 2001, there was no possibility that a 10 year period of adverse possession could have displaced the registered title of the owners of 2 Milton Road by the time of the conversion.

[24] The Triangle at the west end of the driveway between the two properties therefore belongs to the Applicants as the owners of 2 Milton Drive. The Respondents have no possessory title over this piece of land, and any fence that is erected on that land may be removed by the Applicants.

III. The trespass claims

[25] As indicated at the outset, the Applicant contends that the Respondent is liable for three different trespasses. The first of these, and the most egregious, is a large board fence, or panel, erected by the Respondent on the south side of the driveway, squarely on the Applicant’s property. The Respondent puts forward no legal defense to this trespass, but rather advises that this was done in order to block the view into his garden from the Applicants’ backyard deck.

[26] Needless to say, the fact that the Respondent may be annoyed at being peered at by the Applicants from their own property does not excuse a blatant trespass. The board fence or panel must come down.

[27] The second trespass for which the Applicants seek a remedy is the gate that the Respondent has installed in the middle of the driveway that spans its entire width. As initially installed, this gate had a padlock which effectively deprived the Applicants of access to a portion of the driveway which is rightfully theirs – i.e. the southerly three feet of the driveway from the gate to the top of the driveway. The Respondent states that the gate was installed in order to prevent a bicycle stored in his backyard from being stolen.

[28] The Respondent concedes that the gate encroaches onto the Applicants’ property by spanning the entire width of the driveway, and that padlocking the gate wrongfully excluded the Applicants from a portion of their own property. He has therefore removed the lock and placed a pin in the ground to keep the southern part of the gate partially open.

[29] In my view, this is an appropriate resolution. As long as the gate is ajar and does not in that state encroach on the three feet of the driveway that belong to the Applicants, the gate would be entirely on the Respondent’s property and may remain there. In that case, no judicial intervention is required.

[30] Finally, the Applicants complain that the Respondent installed interlocking brick on the top portion of the driveway across its width, including the part owned by the Applicants. The Respondent again concedes that in doing so he has encroached on the Applicants’ property without consent, but submits that the interlock is an improvement and that it would be a shame to have to remove it as it does no harm.

[31] I agree with the Respondent that it is unfortunate that the Applicants take the position that they do. However, I am mindful that the Applicants are the owners of the southern three feet all along the length of the driveway, subject only to the Respondent’s right of way, and that as owners they can do what they want with their land.

[32] It is a fundamental proposition of property law that an owner can exclude any and all trespassers, including those that are for all practical purposes harmless. Lord Coleridge CJ made this point 150 years ago in Ellis v Loftus Iron Co., (1874) LR 10 CP 10: “It is clear that, in determining the question of trespass or no trespass, the court cannot measure the amount of the alleged trespass; if the defendant places a part of his foot on the plaintiff’s land unlawfully, it is in law as much a trespass as if he had walked half a mile on it.” This observation continues to be good law in the 21st century: see Drury v Secretary of State for Environment, Food & Rural Affairs, [2004] 2 All ER 1056 (CA).

[33] The Applicants are showing their frustration, and are being somewhat difficult by insisting that the interlock be removed from their portion of the driveway. Nevertheless, they are within their rights to so insist. The Respondent is not permitted to alter the Applicants’ property without consent even if the alteration is, objectively speaking, an improvement.

IV. Disposition

[34] The Applicants shall have a declaration that they are the sole owners of the Triangle bordered by the true property line on the north, the end of the driveway on the east, and a diagonal line which is demarcated on the ground by a fence originally installed by Mr. Gouinlock.

[35] The Applicants are free to remove any and all of the fences demarcating the diagonal line of the Triangle if they wish. The cost of removing the board fence originally installed by Mr. Gouinlock is to be borne by the Applicants. If the old chain link fence still exists and the Applicants wish to remove it, they must bear the expense of its removal as well.

[36] I understand that in recent years the Respondent has installed a parallel wooden fence along the diagonal line of the Triangle. The Applicants may remove that newer fence installed by the Respondent as it is on their land; the cost of that removal is to be reimbursed to the Applicants by the Respondent. The removal of the newer fence should be done in a way that allows the Applicants to present the Respondent with a separate invoice for this cost.

[37] The tall board fence, or panel, that the Respondent erected on the Applicants’ property roughly adjacent to the Applicants’ backyard deck is accessible from the Respondent’s property. The Respondent is ordered to remove that fence, or panel, at his own expense, and to ensure that the area where it was installed is left in a good state of repair. The Respondent is further ordered to remove the interlock from any portion of the driveway or other land that is owned by the Applicants, and to restore that portion of the land to its previous condition and ensure that it is in a good state of repair, all at his own expense.

[38] In their Notice of Application, the Applicants also seek damages for trespass. Their counsel did not press this in argument, presumably because they have suffered no financial loss. I see no need to award nominal damages, as the Applicants will have their declaration of title and affirmative orders remedying the existing trespasses.

[39] Counsel for the Applicants has provided me with a Costs Outline. I invite both counsel to make written submissions of no more than three pages addressing costs, to be sent directly to me. Counsel for the Applicants should send his submission to me within one week of today and counsel for the Respondent should send his within one week thereafter.

Morgan J.

Date: June 6, 2014