Check that your Land Title is Absolute When Buying Property in Ontario
If you own land in Ontario, more than 97 per cent of the land is now registered in the Land Titles system and it will probably be 100 per cent within the next 12 months. There are two categories of properties that are registered: Land Titles Absolute (LTA) and Land Titles Conversion Qualified (LTCQ).
Most land in southern Ontario settled after 1795 was originally in the registry system. Land in Northern Ontario, which was settled after 1885, was immediately placed into the Land Titles system. Over time, about 35 per cent of the land in the registry system was converted into the Land Titles system using the Land Titles Absolute method. This involves submitting a full 40-year search of title to the province for approval and preparing a new survey for the property, which is then sent to every adjoining land owner. If there are no objections, then the land is registered into Land Titles and the owner is granted the full protection. This means that no adjoining owner can later bring a claim for ownership by possession or easement by prescription, even if they prove 10 years of continuous possession of the land or 20 years of use of any easement.
In 1999, the province of Ontario, under the Polaris initiative, began the administrative conversion of the remaining 65 per cent of the land into the Land Titles system. The main difference between this method and Land Titles Absolute is that while 40-year searches were conducted on each piece of land, no up-to-date surveys were prepared. As such, the title to these lands are “qualified,” such that if there were any matured claims for adverse possession or easements by prescription which were in existence at the time that the land was transferred into Land Titles, these claims would continue to apply today.
As an example, if a parcel was placed under the LTCQ category in 2005, but a neighbour had fenced off part of the land in 1992, then the neighbour would probably be entitled to that piece of land, if he could prove open and continuous possession from 1992 until 2005. But if in the same example, the land was fenced off in 1998, the neighbour would be unsuccessful because the claim had not yet matured in 2005, as only seven years had elapsed. The same principle would apply for any 20 year easement claim based on prescription.
If a person today owns land that is designated LTCQ and wants to build a subdivision or condominium development on the lands, they will still have to convert these lands to Land Titles Absolute by having a new survey prepared, sent to the adjoining owners and waiting for the prescribed time limits for opposition to expire.Thats why we see signs about land stating public notices.
Even if you can prove that you have fenced in your neighbour’s land for more than 10 years, it may still be difficult to claim the land by possession.
For example, if you are fencing in land and the owner has no knowledge about it, or is merely holding the land in question for future development, then the case law has decided that the claimant will not be successful in these kinds of claims for possessory title.
You can look at your deed, the title register, or the letter from your lawyer when you bought the property to check whether your title is absolute or qualified. If you are in a subdivision registered after 1971, then your title is absolute.
This continues to demonstrate the need to always verify whether there is an up-to-date survey, more formally called a Surveyor’s Real Property Report, when buying any property. You will have certainty that all fence lines are in fact on the true boundary lines as shown in your deed or consult right authority and make sure before venturing the investment.
(The comments contained on this site are for information purposes only and do not constitute legal advice.)
If you have any questions/suggestion or require more information, please do not hesitate to contact me and I will be happy to assist you.
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