Canada: "No Good Deed Goes Unpunished" - Case Comment – Re Koziey Estate, 2019 ABCA 43

Last Updated: July 29 2019
Article by Thomas P. O'Leary and George Wong

In the recent decision Re Koziey Estate (2019 ABCA 43) the Alberta Court of Appeal confirmed that adverse possession is still alive and well in Alberta. This could have ramifications for property owners that allow neighbours to use portions of their land for ingress and egress or for other purposes.

Taylor and Koziey owned adjoining parcels of land. The only vehicle access to the houses on the Koziey land was by a road that crossed onto the Taylor lands at one point in order to bypass a steep ravine. The late Paul Koziey maintained the road and he and his tenants had used the road for decades. However, the Koziey lands were not landlocked and access to the houses on the Koziey lands could have been made available from another direction. Thus, no “easement of necessity” could be justified.

The appellant Taylor had acquired his land from his aunt in 1991 when he discovered Koziey’s encroachment (about 0.79 acres).  Taylor testified that in 1992, he asked Paul Koziey to move the road from his land but he did not set a deadline for this to occur. Paul Koziey died 22 years later and never moved the road before his death. Taylor never raised the issue with Paul Koziey again after that one instance in 1992 and he never received any written acknowledgement from Paul Koziey that the road would be moved. Also in 1992, Taylor built a fence along the road to contain his cattle so that they would not interfere with access to the Koziey lands via the road.

After Paul Koziey’s death, Taylor asked the Koziey estate to move the road off his property. It refused. At trial, the Koziey estate did not ask for an easement for the road given lack of necessity.  Instead, it asked for title via adverse possession to the road and the small part of the Taylor lands isolated from the rest of the parcel by the road. Taylor argued that the possession was not adverse because it was not exclusive and there was an implied license for Koziey to use the road.  

Alberta does not use the “inconsistent use” test for adverse possession that applies in a number of jurisdictions including Ontario. In Alberta, a claimant for adverse possession must only show that 1) they have possession that is “open, notorious, constant, continuous, peaceful and exclusive of the right of the true owner”; and 2) this possession must be to the exclusion of the true owner for over 10 years (section 3(7) of the Limitations Act, RSA 2000, c. L-12.).

The trial judge granted Koziey exclusive right to use the land and quiet possession of it. The Registrar of Land Titles was directed to issue a new title in the name of the Koziey estate. The trial judge found that the possession of the road and neighboring land was “actual, exclusive, open, visible, notorious, peaceful, and continuous; it was not equivocal, occasional or for a special or temporary purpose.” Paul Koziey and his tenants used the road continuously, exclusively and openly. It was the only way for them to access their homes by vehicle and Paul Koziey was the only one who maintained the road. Their possession was to the exclusion of Taylor for over 10 years. The fencing off of the road from the main part of the Taylor lands was considered evidence of this exclusivity, through the fencing was erected for a different purpose. The trial judge found that Taylor’s acquiescence in the face of Paul Koziey’s failure to move the road meant that there was no license and that Koziey’s possession was adverse.

On appeal, Justices Slatter and Schutz upheld the trial judge’s decision while Justice O’Ferrall dissented. Taylor argued on appeal that the 10 year period from the Limitations Act did not begin to run because Paul Koziey had agreed in 1992 to move the road eventually, and that he had given Paul Koziey an implied license until the road was moved. The majority of the Court rejected these arguments. They found insufficient evidence of a 1992 agreement or intention to move or license the road. Even if there were some sort of promise made in 1992, the majority held that this was repudiated after a reasonable time through non-performance. They also noted that suspension of the limitation period under the Limitations Act requires an acknowledgement in writing, and that the alleged 1992 demand that Paul Koziey move the road was inconsistent with an implied license. Relying on the standard of review being reasonableness such that they could not reverse without palpable and overriding error, and finding no such error, the majority upheld the trial judge’s decision on exclusive possession.

Justice O’Ferrall disagreed and would have allowed the appeal and restored the land to Taylor. In his view, Taylor was never dispossessed of the property despite the fencing Taylor erected. He had consented to Koziey’s use of his property but this consent was always revocable. Justice O’Ferrall also disagreed that title to the adjacent part of the Taylor land could be “thrown in” with the road, stating that the adverse possessor can only acquire that portion of the land over which possession was exercised. There was no suggestion that Koziey ever exercised possession over any land beyond the road. This point was not directly addressed by the majority, which apparently deferred to the trial judge’s assumption that the road and additional land were all exclusively possessed by Koziey.

Takeaways from Re Koziey Estate

Adverse possession is still possible in Alberta

While adverse possession cases are very rare, they can have significant practical and economic impacts on property owners.

Be clear and document intentions

Taylor’s alleged Paul Koziey to stop using his land but set no deadline for this, deferring it to an undefined future date. This was not seen by the Court as Taylor giving consent to Koziey’s use until that future date. Instead, it started the clock on Koziey’s exclusive possession of Taylor’s land immediately. Therefore, if a property owner’s intention is to allow the adjacent property owner to use land, it should document this in writing and make clear that it is giving a license to use the property, which can be terminated at any time.

Timely enforcement of rights is required

If the property owner’s intention is to force the adjacent property owner to stop using its land, the property owner has a positive obligation to prevent this use as soon as it makes this intention known. If an owner does not take steps to enforce property rights, it could lose them.

Fences matter

Although it was not disputed that Taylor’s fence along the road was built for the purposes of keeping Taylor’s cattle safe and not to reflect possession of the road and non-fenced lands by Koziey, the Court considered that the fence made Koziey’s possession of the entire fenced off land exclusive. Had Taylor placed the fence on the other side of the road, or even gated it to provide access to the road and remaining Taylor lands, the result could have been different.

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