Can A Joint Tenant Obtain Full Title By Adverse Possession?

At first blush, the answer would appear to be no. The fundamental basis of joint tenancy is that two or more owners share a property with rights of survivorship. The right of survivorship gives the remaining owner(s) full title to the property following the death of one owner. In other words, if the property is owned by three people and one dies, the two survivors share ownership following the death. If the property is owned by two people, one of whom dies, the survivor becomes full owner.

At common law, unity of possession prevented one joint tenant from claiming adverse possession against another. However, the Real Property Limitation Act, section 11, modified the common law by stating that possession by one joint tenant shall not be deemed to be possession by all joint tenants. In other words, a joint tenant can gain full title by adverse possession.

This occurred in a recent Ontario Superior Court decision, Post Estate (Trustee of) v Hamilton. In 1979, a common law husband and wife purchased a home as joint tenants. In 1983, the relationship ended and the wife left the home. The husband remained in the property and paid the mortgage payments, municipal taxes, maintenance costs etc. The husband continued to make these payments until his death in 2014. The husband's estate discovered that the former wife was on title and brought an application for an order vesting full title in the estate. The application was complicated by the fact that the former wife could not be found.

In granting the order giving the estate full title and depriving the former wife of her share in the property, the court looked at the requirements for adverse possession:

(i) Actual possession for the statutory period by him/herself and those through whom s/he claims;

(ii) That such possession was with the intention of excluding from possession the owner or person entitled to possession; and

(iii) Discontinuance of possession for the statutory period by the owners and all others, if any, entitled to possession.

The husband had lived in the house for 32 years, well beyond the ten year statutory period, making all payments and taking care of all maintenance. As such, the first and third requirements were satisfied. However, there was no clear and direct evidence that the husband had intended to exclude the wife from joint tenancy. The court inferred such intention based on the fact that the husband believed he had full ownership, the couple were no longer spouses; the husband paid all the expenses without any contribution from the wife for the 32 years, either financial or otherwise; he made all the mortgage payments and renewed the mortgage over the years without the wife's signature or agreement; and, the Municipal Property Assessment Corporation’s records showed the husband as the sole owner of the property.

As mentioned, the former common law wife could not be located so there was no opposition to the adverse possession claim. Had the former wife been involved, she could have tendered evidence which made the issue of exclusion less clear.

The Lesson: Courts will be willing to use the law in order assist individuals in such circumstances. However, as noted, this case could have been decided differently had the former spouse been located and had she opposed the claim. If possible, it is best to clear up property or title issues at the end of a relationship or shortly thereafter to prevent someone from the distant past from gaining a long-term asset.

Post Estate (Trustee of) v Hamilton, 2015 ONSC 5252 https://www.canlii.org/en/on/onsc/doc/2015/2015onsc5252/2015onsc5252.pdf

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