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The Limitation Act and its provisions regarding the time limits for making entries, distresses, and actions for the recovery of land and rent. topics such as the accrual of rights, possession, constructive possession, forfeiture or breach of condition, and acknowledgements of title. It also mentions the application of the Limitation Act to various types of land and tenancies.
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Professor W. B.Rayner University of Western Ontario
This paper is printed with the kind permission of the author. The paper was presented at a seminar of the Law Society in May 1977 entitled "Possessory Title- Fact or Fiction?"
Professor W.B. Rayner University of Western Ontario.
HISTORY
To examine the effect of the Limitations Act of Ontario and possessory title resulting therefrom one must have some general understanding of the development of the concept of "limitation" and "prescription" The word "limitation" means the extinction of stale claims and obsolete titles. 2 Although the concept is necessary, for reasons to be discussed later, it was unknown to common law and thus depends upon statute for its vitality. The concept of prescription, on the other hand, was a common law doctrine whereby certain rights, in the main, easements, could be acquired. In essence prescription is a common law rule of evidence, extended by statute which raises a presumption of a grant from the owner of land to another because of uninterrupted and peaceable user, so that in effect the user acquires title from the presumed grantor. In this sense prescription operates positively, much like a conveyance. Limitation on the other hand operates negatively to extinguish the title of the dispossessed owner.
The law of England relating to the period within which actions could be brought for the recovery of land was codified and^ simplified by the Real Property Limitation Act of 1833, as amended by the Real Property Limitation Act of 1894.5 The Limitations Act of Ontario is based upon these Imperial Statutes.
Prior to 1833, the period of limitation varied according to the particular remedy sought. Since there were various remedies available, the period was not uniform in all cases. Although in 1623, the principle that an action must be brought within a fixed number of years became operative (prior to that time the period had been first fixed by the discretion of judges, and then later fixed by certain dates chosen by the legislature), the varing periods of limitation caused some difficulty.
The various forms of actions at common law could roughly be divided into possessory actions, and proprietary actions. The former did not determine the right of property at all, merely the right to possession; the latter determined the right of property. Because the possessory actions offered a speedier remedy the proprietary actions became obsolete and the ancient forms of writ for those actions were abolished. 7
The bar of the action results primarily from the operation of s. 4 of the Act which provides:
The extinguishment of title results from the operation of s. 15 of the Act which provides:
Apart from specific provisions relating to the Crown and easements or profits a prendre arising by prescription, the remainder of the provisions of the Act relating to land attempt to define a starting point for the running of the period and to vary the period for persons suffering from a disability.
The earlier Statutes of Limitation distinguished between adverse possession and non-adverse possession. Thus, possession by one joint tenant was not considered as adverse vis-a-vis all other tenants. Similarly possession by an overholding tenant or a tenant at will was not adverse. However, the Act now does away with the distinction between adverse and non-adverse possession, subject to certain exceptions. ^ Thus, the possession by one co-owner is not now deemed to be possession by all co-owners_._
Accordingly, time begins to run from the time when the right of the true owner first arose regardless of the possession of the person dispossessing the owner. However, in one sense the quality of the possession must be adverse or the statute does not apply. For example possession by a person as licensee, fiduciary, agent or servant of the owner is in law possession of the owner. 15
In order for a trespasser to establish possession that amounts to dispossession of the true owner and hence starts time running under the Act, the trespasser must show exclusive possession and animus possidendi,i.e., an intention to exclude the owner as well as others’. 36
It has often been said that possession necessary to extinguish the title of the true owner must be "actual, constant, open, visible and notorious occupation" which was known or might have been known to the true owner, to the exclusion of the true owner for the full Statutory period. 17
Acts which do not interfere with the owner's enjoyment of the land for the purposes for which he intended to use it are not evidence of dispossession. Moreover, it should be remembered that when one has documentary title to land he is considered to be in possession of the whole by virtue of the doctrine of constructive possession unless another is in actual possession of some part to the exclusion of the true owner. 18
Title by possession cannot be established by equivocal acts of possession referable to a limited right of user,. Although user may give rise to a prescriptive right in order to acquire possessory title there must be occupation which involves actual and complete possession to the exclusion of all others.
A person who is in exclusive possession of land, even when uncertain of his right to remain in possession, can acquire a possessory title. 25 Enclosure is not an indispensable 21 ingredient to the acquiring of possessory title, nor is it conclusive. 22 Rather, it is strong evidence of possession.
Before leaving the topic of the quality of possession two presumptions should be borne in mind. First, a holder of the paper title who is in possession of part of the lands is presumed to be in possesssion of all the lands. Thus, actual possession of a third party will be necessary to establish dispossession. 23
In the same vein, in the absence of any paper title holder, simple actual possession may give rise to a presumption of ownership. If that presumption is rebutted, the quality of possession required by the Act and for the appropriate limitation period must be shown.
Secondly, the concept of constructive possession is applicable to a person who takes possession with colour of title. It is not essential that the title be a valid one, for it is the possession which ultimately results in protection. However, it is necessary for the person to enter under a real, bona fide belief in title, a question of fact. 25
It does appear to be the case that the possessor must have been in possession for the full statutory period even where lands are adjoining notwithstanding the provisions of s. 51 (1) 3, which provide that registered land is subject to "any title or lien that, by possession or improvements the owner or person interested in adjoining land has acquired to or in respect of the land." In essence the Courts have construed "has acquired" as meaning "has finally acquired" and not as meaning "in the process of acquiring".
(iii) CROWN LANDS
At common law, time under the various Statutes did not run against the Crown. The Nullum Tempus Act provided a 60 year limitation period that did run against the Crown. The Act was repealed in 1902 and certain sections substituted therefor. These sections appear primarily now as s. 3 and s.16 of The Limitations Act.
s. 3 reads:
(2) Subsections 1 to 3, 5 to 7 and 9 to 12 of Section 5 and sections 6, 8 to 11 and 13 to 15 apply to rights of entry, distress or action asserted by or on behalf of Her Majesty.
It has been held, prior to 1902 that the Nullum Tempus Act did not apply to unsurveyed or waste lands owned by the Crown, Section 16 codifies this judicial conclusion and extends it to lands included in road allowances, subject to rights acquired before June 13th,1922. 37
(i) g e n er a l
In general time begins to run when the cause of action arose. However, some difficult questions arise. For example, when a life estate is followed by a contigent remainder and the life tenant is dispossessed, when does time begin to run against the remainderman?
Several possibilities present themselves. Ooes it begin to run when actual dispossession of the life tenant occurs or when the life estate is barred by the Act? Does it run only when the contingency is met or only when the remainderman's interest vests in possession? The Act attempts to meet these problems by deeming various starting points for the runninn of the time.
Section 5 (1) determines that the cause of action arises when a person has been dispossessed oKhas discontinued possession. Dispossession occurs when a person comes in and puts another out of possession. Discontinuance occurs where the person in possession goes out of possession and another person takes possession. 38 Mere non possession by the owner is insufficient to cause the running of the period.
Successive possessors may gain possession of land adverselyto the true owner. If privity exists between successive occupants it is clear the statute operates for both periods of possession. 38 a Indeed, it now appears that privity is not necessary. 37 b However, what is essential is that there be no interruption of possession by the various persons in possession from time to time. If there is an interruption the person holding paper title is deemed to be back in possession because of the doctrine of constructive possession. 3ac
Where an owner dies in possession and another person takes possession after the death, time begins to run from death. 39 It should be noted if dispossession or discontinuance occurred before death the period runs from the date of dispossession or discontinuance.
If a person grants land to another, and yet remains in possession the period begins to run when the latter person was first entitled to possession under the grant... 40
Where land in a state of nature after the Crown grant, the grantee of the Crown not having taken actual possession by residing on or cultivating some part, is possessed by another, the expiration of ten years is not a bar to the action unless the grantee had knowledge of the possession. The cause of action is deemed to accrue when knowledge was had and a maximum period of 20 years is established. 41
(ii) TENANCIES
The time when the period begins to run varies according to whether the tenancy is under a lease in writing, a verbal lease or a tenancy at will.
Were it not for subsection (10) time would run under subsection (9) immediately upon forfeiture or breach.
There is some question whether s. 5(1) has any apolication to possibility of reverter following a conditional limitation which revests the estate automatically in the grantor or remainderman. 47 In that case, no right of waiver is involved.
(iv) FUTURE INTERESTS
Sub.iect to s. 6 of the Act, time does not run against the owner of a future estate or interest until he is.entitled to his estate or interest in possession. 48 This is the case notwithstanding that at some time prior to the determination of the prior estate, the person entitled to the future estate was in actual possession of the property. 49
Section 6 of the Act provides:
There is no difficulty if the owner of the prior estate was dispossessed but his claim was not statute barred during his life.
In that instance the remainderman may bring his action within ten years of the dispossession of the life tenant or within 5 years from his death, whichever is the longer period. Thus, if X grant to A for life, remainder to B, and A is dispossessed 6 years before his death, B could bring an action within 4 years of the death under the first alternative (4 years being the remainder of the 10 year period) or within 5 years of the death under the second alternative.
„46. Ibid., S. 5(7). See Logan v. Campbel1 , (1956) O.W.N. 177 (C.A.)
