• Steinbach 204.326.3442 - 85 PTH 12 North, Steinbach, MB, R5G 1A7
  • Niverville 204.388.9300 - Box 1120, 62 Main Street, Niverville, MB, R0A 1E0
 

Prescriptive Easements and Indefeasibility of Title

In our real property system landowners can, for the most part, absolutely rely on what the Certificate of Title says as a full and complete answer regarding rights to any particular piece of real property. Section 59 of Manitoba’s The Real Property Act says that very explicitly. It reads:

Conclusive evidence — title paramount (indefeasible)

59(1)       Every certificate of title or registered instrument, as long as it remains in force and is not cancelled or discharged, is conclusive evidence at law and in equity, as against the Crown and all persons, that the owner is indefeasibly entitled to the land or the interest specified in the title or instrument.

There are some exceptions to this, like fraud, short-term leases, or registrations that occur after the date of the Certificate of Title.   On April 6, 2017, the Supreme Court of Canada rendered an important decision on another exception: caveats, for rights of way or the like, including those acquired by prescription. The question considered by the Supreme Court of Canada was whether rights can be acquired by prescription against a new owner who took title in the land register before the possessor’s right was asserted in court.

In the case titled Ostiguy v. Allie, Ms. Allie alleged that she could use a parking space on her neighbours’ property, having become the owner of a limited right of use by prescription. When the neighbouring property was sold her new neighbours, Mr. Ostiguy and Ms. Savard, sought an injunction to stop her from using the space. Ms. Allie argued that she had acquired the parking space by prescription – even though she had never been given a judicial declaration to that effect before the new owners’ title was recorded in the land registry.

The court ruled in favour of Ms. Allie, affirming that she acquired the right to use the parking spot on her neighbours’ property and could set up this acquisition against her new neighbours based on prescriptive rights. That stood even if they were unaware of the situation when they purchased the neighbouring property, and even if Ms. Allie had not yet instituted proceedings to have her rights recognized at the time that they became the owners. The fact that the new owners had registered their ownership rights in the land titles registry did not change the reality that Ms. Allie and her family had possessed the parking space peacefully, continuously, publicly and unequivocally for more than the number of years needed to established the right.

One note: this case was in Quebec, which required continuous use of over 10 years. In Manitoba it must be either 20 years or 40 years, depending on the circumstances. Aside from the difference in the number of years this case would very likely apply in Manitoba.

On a final note, it should be mentioned that the new neighbours likely had a cause of action against the seller. Both the purchase and acquiring rights by prescription were legitimate, legally. The recourse for a purchaser who is ultimately found to have restrictions on their ownership would be an action against a seller, who was aware of the encroachment on the land and failed to disclose it.

Notice: The articles on our website are provided for general information purposes only and should not be relied upon as legal advice or opinion. They reflect the current state of the law as at the date of posting on the website, and are subject to change without notice. If you require legal advice or opinion, we would be pleased to provide you with our assistance on any of the issues raised in these articles.