Q: I’ve moved into the city but still own my farmland. Some of it is lakefront land. I noticed that some people have moved a trailer down by the lake. I want to get rid of them but they’re now claiming rights. Who is correct?
A: The old term for people who simply move onto land not owned by them is squatters. More polite, and more precise, is the legal term “adverse possession.”
This situation is recognized in common law and occurs when people occupy land to which they don’t have legal title, for an extended period of time. If they stay long enough, they develop rights in the land and in some instances can actually take ownership of it.
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British Columbia has now prohibited the ability to acquire land rights in this manner. But in other provinces there is still an argument that someone can acquire land rights through adverse possession.
The basic common law test is straightforward. If someone occupies your land for a period of time and, during that time, no legal action is taken to evict them or sue them for trespass, ownership of that land is transferred from the initial owner to the squatter.
How much time must pass?
The test seems to be that if the squatter has occupied the land for a period longer than the legal limitation to bring an action for eviction or trespass, they get their right to the land. These time periods are now defined in provincial legislation and are called limitation acts. These laws prescribe time limits for you to sue someone for trespass. The time limits vary from province to province, and run from 10 to 20 years.
The squatter has to show he intended to acquire those rights and intended to stay on the land on a more or less permanent basis. So in your case, if it’s purely a seasonal occupation of your land, the law may be on your side.
Also, they have to be there without your permission, which is why it’s called “adverse” possession. The squatter usually has to be open about his possession of your land and generally act like there’s nothing wrong with him being there.
Cases are judged on their own peculiar facts and merits. The common law is clear that landowners are expected to vigorously guard their property rights. If you let yours lapse, you may be subject to a claim against part of your land.
What’s enough to constitute possession? Does the squatter have to build a house?
Again, the answer depends on the facts of each case.
But putting up fences, grazing livestock and establishing a large vegetable garden have been held to be enough to acquire property rights. Even using a spot as a parking space has been sufficient to give the squatter some rights.
All this probably seems unfair, and it is. But as stated, the law expects owners to protect their land against incursions from all sorts of people.
In your situation, deliver a written notice insisting they vacate your land immediately. If they do not, sue them or report them to the police as trespassers. Take all available legal action to get rid of them, or they may be able to get rid of you.
Rick Danyliuk is a practising lawyer in Saskatoon with McDougall Gauley LLP. He also has experience in teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.
