What is the test for adverse possession of a property?

Nova Scotia, Canada


The following excerpt is from Board of Trustees of Common Lands v. Tanner, 2005 NSSC 245 (CanLII):

Wilson, J.A. stated, in Keefer v. Arillotta, beginning at page 192: . . .the crucial question in this case is whether the respondents' possession challenged in any way the right of the legal owner to make the use of the property he wished to make of it. . . . . The use an owner wants to make of his property may be a limited use and an intermittent or sporadic use. A possessory title cannot, however, be acquired against him by depriving him of uses of his property that he never intended or desired to make of it. The animus possidendi which a person claiming a possessory title must have is an intention to exclude the owner from such uses as the owner wants to make of his property. . . . The test is not whether the respondents exceeded their rights under the right of way but whether they precluded the owner from making the use of the property that he wanted to make of it: . . . Acts relied on as dispossessing the true owner must be inconsistent with the form of enjoyment of the property intended by the true owner. This has been held to be the test for adverse possession since the leading case of Leigh v. Jack (1879), 5 Ex.D. 264. The onus of establishing title by possession is on the claimant and it is harder for a claimant to discharge this onus when he is on the property pursuant to a grant from the owner.

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