Adverse possession has a long history in the common law of England, Canada, and Alberta. It originated as a common law doctrine used to determine a person’s rights to land. In today’s Alberta, it involves two people: the person in actual possession of the disputed property (the occupier) and the registered owner of the disputed property (the registered owner).
The essential common law elements of adverse possession are:
-the registered owner must be out of possession of the disputed land,
-the occupier must be in use and occupation of the disputed land, and
-the occupier’s use and occupation must be exclusive, continuous, open or visible and notorious for the requisite time period.
ALRI is recommending that the law of adverse possession be abolished in Alberta. This change would prevent new claims from being brought in the future, but would not affect claims that have been resolved or filed with the court before the change comes into effect.
This change would mean that a registered owner of land could recover possession at any time and would not have to act within the 10-year limitation period that currently applies.
If adverse possession is abolished, claims regarding lasting improvements to wrong land under section 69 of the Law of Property Act would have a more prominent role in resolving disputes concerning possession of land. To facilitate equitable resolution of disputes, ALRI recommends that an assign of the lasting improvement should not have to prove whether the person who made the improvement believed it was their land. This change would make section 69 consistent with how courts have applied it. ALRI also recommends that section 69 claims can be brought at any time.