Court File and Parties
Peterborough Court File No.: CV-17-218 Date: 2017-11-22 Ontario Superior Court of Justice
Between: Denis Brent Perdue and Glen Gary Perdue, Applicants – and – Andrew Suddess, Respondent
Counsel: G. Hayes Murphy, for the Applicant No one appearing for the Respondent
Heard: October 3, 2017
Reasons for Decision
DE SA J.:
Overview
[1] The Applicants seek a Declaration that they are the owners in fee simple of certain lands by virtue of title by adverse possession; a Declaration that any interest the Respondent may allege in those lands has been extinguished; and ask for an Order that the Land Registrar for the County of Peterborough, in the Province of Ontario, amend its records to include the lands as part of the Applicants’ title.
[2] For the reasons outlined below, I grant the application.
Facts
The Transfer of the 40 Acre Parcel
[3] On or about the 4th day of September, 1968, John Denis Perdue obtained title to 40 acres of land, hereinafter referred to as the “40 acre parcel”, as trustee for his children, in the Township of Ennismore from Dennis Joseph Perdue and Gertrude Mary Perdue.
[4] At the time of the transfer, one acre of the 40 acre parcel had been previously transferred to his sister, Julia Suddess. This one acre parcel (hereinafter, the “one acre parcel”) had been transferred to Julia Suddess in October of 1963. While the transfer of the one acre parcel to Julia Suddess was completed by a solicitor, it remained unregistered until July 12, 1972.
[5] The 40 acre parcel was conveyed by John Denis Perdue to his children Glen Gary Perdue, Kevin John Perdue and Denis Brent Perdue on January 6, 1996. The parties were unaware of Julia Suddess’ interest at the time of the transfer.
[6] On August 30, 2007, Kevin John Perdue released his interests in the 40 acre parcel to the Applicants.
The One Acre Parcel is Designated a Separate Property Identifier Number (PIN)
[7] When the property was converted to Land Titles in 2007, a new Property Identifier Number (PIN) was created for the Applicants’ 40 acre parcel. However, the new system recognized the deed to Julia Suddes, and separated the one acre parcel from the Applicants’ PIN. The one acre parcel was provided its own PIN number, and currently remains in the name of Julia Suddess. Julia Suddess, the Respondent’s mother, is no longer living.
[8] The Respondent, Andrew Suddess, is the only party, other than the Applicants, who retains an interest in the one acre parcel.
The Use of the One Acre Parcel Since 1968
[9] Since 1968 the Applicants have been in actual, continuous, open, visible, notorious and exclusive possession of the whole of the 40 acre parcel including the disputed one acre parcel.
[10] For well over 10 years, the limits of the entire 40 acre parcel have been fenced and include the disputed one acre parcel.
[11] Neither the Respondent, nor any of his family, including his mother Julia Suddess has ever had possession of the one acre parcel.
[12] Neither the Respondent, nor any of his family, have ever paid taxes on the one acre parcel. Since 1968, the taxes on the whole 40 acres including the approximately one acre parcel have always been paid by the Applicants’ or their father.
[13] In 2007 when the lands were converted to Land Titles, a tax bill was set up for the one acre parcel. When the Applicants became aware of the separate tax bill, they paid up all arrears and continued to pay all the taxes and even in 2017 the taxes are assessed in the Applicants’ names.
The Respondent’s Correspondence regarding the One Acre Parcel
[14] On February 5, 1998, the Respondent had counsel from the JBL Group contact the Applicants regarding his interest in the 1 acre parcel. In a letter sent to the Applicants, George Brown of the JBL Group stated:
On or around December 11, 1997, we conducted a sub search of the subject property at the request of Drew Suddess. Our search revealed that the interest in the subject property was conveyed to Garry Glen Perdue, Kevin John Perdue and Brent Denis Perdue, one third each.
Further, our search revealed that Julia Suddess’ interest in the subject property might have been conveyed to the individuals mentioned above, in instrument #618279.
Mr. Suddess requested that we put you on notice that his late mother, Julia Suddess holds an interest in the subject property. More importantly, he requested that we advise you that he is the beneficiary to any and all assets held by his mother, at the time of her passing.
We would greatly appreciate if you would provide us with information as to the status of Julia Suddess’ interest in the subject property.
Your immediate attention to this matter is greatly appreciated.
[15] Applicants’ counsel responded to the letter in March of 1998. Applicants’ counsel advised that, in their view, Julia Suddess had no valid claim. Her deed was not registered prior to the grant made to them by their grandfather. In their view, Mr. John Denis Perdue, as trustee, was a bona fide grantee without any notice whatsoever of the interest of any other individual. In that same correspondence, Applicant’s counsel requested that the Respondent execute a Quit Claim Deed as the deed to Julia Suddess was “clouding” the Applicants’ title.
[16] The Respondent never replied to the letter. He has not had any correspondence with the Applicants since the letter of 1998.
[17] The Respondent was also served with notice of this application. Service of the materials was confirmed. The Respondent has chosen not to respond or attend.
Discussion
[18] Whether a prescriptive title has been acquired is a question of fact which must be determined in light of the circumstances of each case. The legal principles which govern this determination were outlined by Wilson J.A. in Fletcher v. Storoschuk et al. (1981), 35 O.R. (2d) 722 at p. 725, 128 D.L.R. (3d) 59, 22 R.P.R. 75:
[A] person claiming a possessory title as against the legal owner must not only establish actual possession for the statutory period but he must establish that such possession was with the intention of excluding the true owner and that the true owner's possession was effectively excluded for the statutory period. [Emphasis added]
[19] In short, a claimant to a possessory title to property throughout the statutory period must establish that he/she:
had actual possession;
had the intention of excluding the true owner from possession, and
effectively excluded the true owner from possession.
[20] The claim will fail unless the claimant meets each of these three tests and time will begin to run against the owner only from the last date when all of them are satisfied: Madison Investments Ltd. v. Ham. The possession must be "open, notorious, constant, continuous, peaceful and exclusive of the right of the true owner": see Fletcher v. Storoschuk et al., supra, at p. 725. Sherren v. Pearson (1887), 14 Can. S.C.R. 581 adds that this possession must not be equivocal, occasional, or for a special or temporary purpose.
[21] The person claiming a possessory title must demonstrate that his possession effectively excluded the possession of the true owner. The claimant's use of the land must be inconsistent with the owner's "enjoyment of the soil for the purposes for which he intended to use it.” The use made by the claimant must effectively oust the owner’s interests over the relevant period. As Madam Justice Wilson explained in Fletcher v. Storoschuk et al., supra, at p. 724, as follows:
[A]cts relied on to constitute adverse possession must be considered relative to the nature of the land and in particular the use and enjoyment of it intended to be made by the owner. The mere fact that the defendants did various things on the ... land is not enough to show adverse possession. The things they did must be inconsistent with the form of use and enjoyment the plaintiff intended to make of it: see Leigh v. Jack (1879), 5 Ex. D. 264. Only then can such acts be relied upon as evidencing the necessary "animus possidendi" vis-a-vis the owner [Citations omitted and Emphasis added].
[22] Similarly, in Keefer v. Arillotta, she explained at p. 691:
The animus possidendi which a person claiming a possessory title must have is an intention to exclude the owner from such uses as the owner wants to make of his property. The use an owner wants to make of his property may be a limited use and an intermittent or sporadic use. A possessory title cannot, however, be acquired against him by depriving him of uses of his property that he never intended or desired to make of it. … The test is not whether the respondents exceeded their rights under the right of way but whether they precluded the owner from making the use of the property that he wanted to make of it… [Emphasis added]
Application of the Principles to the Facts
[23] In this case, the Applicants have enjoyed actual and exclusive possession of the entire 1 acre parcel for more than 10 years. From the date of the Applicants’ letter in March of 1998, the Respondent has not even expressed an interest in the property, leave alone attended it. The property has been fenced, the taxes have been paid by the Applicants, and the Respondent has been ousted from the property for all purposes. Moreover, the Respondent has not contested the application for its transfer.
[24] In the circumstances here, I am satisfied that the Applicants have made out a possessory title as against the legal owner for the 1 acre parcel. Accordingly, I order the following:
The Land Registrar for the County of Peterborough, in the Province of Ontario, shall amend its records to include the one acre parcel more particularly described as part Lot 4, Concession 2 Ennismore, Instrument R236409 except BL262, Smi-Enn-Lak, County of Peterborough as part of the Applicants’ lands, more particularly, as part of the lands referenced in Instrument R618279.
Any interest that the Respondent may have had in the land is hereby extinguished; and
The Applicants’ are now the owners in fee simple of the all of lands referenced above.
Costs
[25] The Applicant has also sought its costs on the motion.
[26] I will not order any costs against the Respondent. The Respondent has been living in British Columbia for some time and may have various reasons for not responding to the application and/or not consenting to the transfer. Moreover, the additional cases and factum were filed at my request. Having regard to the all the circumstances, I find that it would not be in the interests of justice to order costs against the Respondent here.
Justice C.F. de Sa Released: November 22, 2017