No Walk in the Park: Adverse Possession of Municipal Parkland

The Court of Appeal recently determined, in Kosicki v. Toronto (City),  that one can acquire title over municipal parkland through adverse possession only if the municipality has waived its rights over the property, or acknowledged or acquiesced to its use by a private landowner.

Summary of the Case

The appellants own a house near the Humber River in Toronto. The City is the registered owner of a park along the river south of the property, including a large area behind the appellants’ house which is fenced-in and effectively forms part of the backyard (the “Disputed Lands”).

The Disputed Lands have been enclosed with a chain-link fence and used exclusively by the owners of the appellants’ property since 1971 or earlier. The appellants treated the Disputed Lands as part of their backyard and paid taxes on it, which were accepted by the City until 2020. However, the Disputed Lands are designated as “Parks and Open Space Areas” under the City’s Official Plan, and zoned “Open Space” under the Zoning By-law. The appellants approached the City about purchasing the Disputed Lands in 2021. The City refused to sell, and the appellants brought an Application to the Superior Court of Justice claiming title to the Disputed Lands through adverse possession.

The Application Judge found the appellants’ claim met the three-part test for adverse possession (actual possession, intention to exclude true owner, and effectively excluded true owner) for the applicable 10-year period, as the Disputed Lands were fenced in by the previous owners of the property since at least 1971, with no objections from the City. However, since the lands were owned by the City rather than a private party, the Application Judge found that publicly-owned lands intended for parks purposes are immune to claims of adverse possession.

The Application Judge also found that the Disputed Lands were originally required for a “very high public interest”, as they were conveyed to the City as parkland, and that allowing adverse possession would set a “dangerous precedent”.

The Court of Appeal issued a split decision. The majority held that where adverse possession of municipal lands is at issue, other than municipal lands specifically referred to in section 16 of the Real Property Limitations Act (the “RPLA”), such claims will be resolved by recourse to the common law, as the RPLA is not a complete code for the treatment of adverse possession of public lands.

The majority upheld the Application Judge’s decision, but reframed the test as follows: adverse possession claims against municipal parkland will not succeed where the land was purchased by or dedicated to the municipality for the use or benefit of the public, and the municipality has not waived its presumptive rights over the property, or acknowledged or acquiesced to its use by a private landowner or landowners.

Justice Brown wrote a dissenting opinion, forcefully disagreeing with the majority. He concluded that the RPLA has codified the law on adverse possession and thus common law is not required to “fill the gaps”. He also did not believe the existing case law justified establishing the test put forward by the majority. In Justice Brown’s view, immunizing all public lands from claims of adverse possession effectively amends the RPLA and other statutes and is contrary to legislative intent. The appellants met the requirements for possessory title over the Disputed Lands, and Justice Brown would have allowed the appeal.

Key Takeaways

The disagreement within the Court of Appeal in this case centres on the precedence of common law versus the RPLA on adverse possession. Unless the Supreme Court of Canada intervenes, there is now a high bar to gain title to municipal parkland through adverse possession. Whether the Court of Appeal’s test also applies to all municipally-owned land or to all public lands is not entirely clear in the decision, and will require judicial consideration.