Facts

An irregularly-shaped piece of land within a large plan of subdivision, named Lake Shore Promenade (the “Promenade”), was dedicated to the Township of Oro (the “Township”) in 1914. Over the years following the dedication, neighbouring property owners built private structures on the Promenade, with the Township’s full awareness. The Township brought an action seeking a declaration by the court that the Promenade is municipally owned. The landowners sought ownership of parts of the Promenade by reason of long-time possession.

Decision

Justice Howden of the Ontario Superior Court of Justice held that the dedicated land is owned by the Township. The Court rejected the landowners’ adverse possession claim. Justice Howden explained that “land acquired by a municipality and used for public purposes is held in trust for the benefit of the public and cannot be lost, or the municipality’s title extinguished, by reason of ordinary acts or omissions within the meaning of the law of adverse possession.” This conclusion was reached despite the Township not having exhibited any consistent responsibility toward the use of the land. However, the Court found that longstanding private structures could likely be retained. Because the structures have been in place on parts of the Promenade for decades and the Township, knowing of their existence, never asserted its rights as owner, the Township was found to have acquiesced to their continuance.

Implications

Justice Howden clarified the law in relation to possessory title in determining that under no circumstances can landowners successfully initiate a claim of adverse possession of municipally owned land. Caution should be exercised by landowners to ensure structures are not built on municipally dedicated lands due to a municipality’s ability to successfully found an ownership claim in the land decades, or even centuries, later.

Aaron Silver