Terry v Knysh, 2017 ABQB 716

Court of Queen’s Bench of Alberta Citation: Terry v Knysh, 2017 ABQB 716 Date: 20171122 Docket: 1603 13210 Registry: Edmonton Between: Michael Terry and Deborah Terry Applicants - and - Borys Knysh and Leann Knysh Respondents _______________________________________________________ Reasons for Decision of L.A. Smart , Master, Court of Queen's Bench of Alberta _______________________________________________________ I.

Introduction [ 1 ] The Applicants claim entitlement to land based on adverse possession. [ 2 ] They seek a declaration that the period outlined in the Limitations Act , RSA 2000, c L-12 has expired and the Respondents’ title over the Disputed Land is extinguished. They also seek a declaration that they are entitled to exclusive right to use the Disputed Land and an Order that the Disputed Land be quieted in the exclusive possession thereof: Land Titles Act , RSA 2000, c L-4, s 74.

If successful, they also seek a direction to the Registrar for the North Alberta Land Registration District to make the necessary amendments to the titles in question. [ 3 ] For the reasons that follow, the application is dismissed. II. Background [ 4 ] The Applicants, Michael and Deborah Terry, own a parcel of land in Lac Ste. Anne County, Alberta. They use the land for their summer vacation property. The Respondents, Borys and Leann Knysh, own the neighbouring parcel of land to the west of the Applicants. They use the land for their home, as well as for a campground and RV park.

The Applicants acquired title to their land in 1999. The Respondents acquired title to the neighbouring land in 1997. [ 5 ] There is an old cattle fence (“the Fence”) that sits between the two properties. The Fence has been between the two

properties since before 1965 when the Applicants’ family originally purchased the land. There is also a large line of trees that separates the two properties. The Applicants always acted as if the Fence denoted the true property line between the two pieces of land. The Respondents were never under the impression that the Fence denoted the true location of the property line. [ 6 ] As a result of the belief that the Fence denoted the property line, the Applicants have been using parts of a strip of land (“the Disputed Land”) to the east of the Fence that, in fact, belonged to the Respondents.

The Disputed Land measures one meter across at its northern edge and four meters across at its southern edge. [ 7 ] From 1965 until 1996, the Applicants’ family used the Disputed Land as if it was their own. They removed some native trees from the Disputed Land and planted some domestic trees as part of a shelterbelt between the two properties. They also constructed and operated a well, stored large items, and maintained the vegetation on the Disputed Land. The Applicants continued these acts after acquiring title in 1999.

In 2000, the Applicants constructed a flower bed on the Disputed Land, and in 2003, the Applicants constructed two sheds that sat two to three metres into the Disputed Land. The sheds are 10 feet wide by 12 feet long and were constructed on skids on top of gravel pads. The sheds have not been moved since their construction in 2003. [ 8 ] The Respondents never gave the Applicants permission to do any of these activities on the Disputed Land. [ 9 ] In 2000, the Respondents personally measured out the property line as part of a development permit they were seeking for their campground.

The Respondents confirmed that the location of the Fence did not correspond with the location of the property line. They did not approach the Applicants with this information. [ 10 ] In 2005 or 2006, the Applicants approached the Respondents with a new descriptive plan for the Applicants’ land. The Applicants wanted to register the descriptive plan with the Land Titles Office, but required the Respondents’ consent. The Respondents refused to sign the agreement because they disagreed with portions of the plan. The Applicants wanted to extend the property line into Lac Ste. Anne and add on a piece of accreted land.

The plan did not include any mention of the Disputed Land. The Respondents never provided their consent to the registration of this descriptive plan. [ 11 ] In November of 2015, the Respondents re-entered the Disputed Land. They hired a surveyor to stake the true property line and informed the County of Lac Ste. Anne that the Applicants were encroaching on their property. In the spring of 2016, the Respondents removed some of the trees from both sides of the Fence and began constructing a new fence along the true property line.

The parties do no dispute the actual location of the property line. [ 12 ] The Applicants filed a caveat on the Disputed Land in May 2016 in order to protect their alleged interest. III. Positions of the Parties [ 13 ] The Applicants submit that from 1965 until November 2015, they openly, notoriously, and continuously possessed the Disputed Land. They submit that at no point during that period did the Respondents provide their express or implied permission to use the Disputed Land. Their primary argument is that the limitation period started in 1997 when the Respondents purchased their land.

Alternatively, the limitation period began to run, at the very latest, in 2003 when the two sheds were constructed on the Disputed Land. The Applicants submit that whether or not the Respondents noticed the sheds prior to 2015 is irrelevant because the Applicants’ activities on the Disputed Land were open to be seen by anyone. [ 14 ] Both parties agree that if it had not already expired, the limitation period stopped in November 2015 when the Respondents re-entered the Disputed Land.

The Applicants submit that regardless of whether the Court sets the start date of the limitation period in 1997 or 2003, the limitation period had long expired by 2015. [ 15 ] For these reasons, the Applicants submit that they have made out a claim for adverse possession and are entitled to the exclusive use and possession of the Disputed Land. [ 16 ] The Respondents submit that the limitation period started in either 2007 or 2015. The first time the Respondents noticed the sheds on the Disputed Land was in 2007.

The first time the Respondents realized they should assert their right to their property or risk losing their land was in the spring or summer of 2015 when the Respondents were removing damaged trees along the property line. The Respondents submit that in either scenario, the limitation period has not yet expired. For this reason, the Respondents submit that they have not lost their title to the Disputed Land. IV.

Summary Judgment [ 17 ] The Applicants seek a

summary determination of this matter and consequently the

summary judgment rules and authorities are applicable. [ 18 ] Rule 7.3(1) of the Alberta Rules of Court , Alta Reg 124/2010 sets out when parties may apply to the Court for

summary judgment: 7.3(1) A party may apply to the Court for

summary judgment in respect of all or part of a claim on one or more of the following grounds: (

a) there is no defence to a claim or part of it; (

b) there is no merit to a claim or part of it; (

c) the only real issue is the amount to be awarded.

[19] Courts have been encouraged to grant

summary judgment whenever it is practically possible: Hryniak v Mauldin, 2014 SCC7; Windsor v Canadian Pacific Railway Ltd, 2014 ABCA 108; Whitecourt Power Limited Partnership v Elliott TurbomachineryCanada Inc, 2015 ABCA 252. In determining whether to grant

summary judgment, a Court must ask “whether there is any issue of meritthat genuinely requires a trial or, conversely, whether the claim or defence is so compelling that the likelihood it will succeed is veryhigh such that it should be determined summarily”: Whitecourt at para 9. Additionally, a Court must consider “whether examination ofthe existing record can lead to an adjudication and disposition that is fair and just to both parties”: Whitecourt at para 9.

In assessingwhether the Court can make a fair and just determination, the Court must be satisfied that it can make the necessary findings of fact andapply the law to those facts: Sandhu v Siri Guru Nanak Sikh Gurdwara of Alberta, 2015 ABCA 101 at para 79. [20] In this case, the existing record provides sufficient evidence to fairly and justly adjudicate the case on its merits. Therefore, Iam satisfied that

summary determination is appropriate. V. Adverse Possession [21] A claim in adverse possession is, at its root, “merely one aspect of the basic rules concerning the limitation of actions thatwork to bar the initiation of stale legal claims”: Bruce Ziff, Principles of Property Law, 6th ed (Toronto: Thomson Reuters Canada Ltd,2014) at 141. Adverse possession arises when “no action has been commenced against a trespasser during the statutory period of timeallowed for a suit to be filed”: Ziff at 141. [22] The relevant statutory time period is found in the Limitations Act.

The relevant provisions read as follows: 3(1) Subject to subsections (1.1) and (1.2) and sections 3.1 and 11, if a claimant does not seek a remedial order within (a) 2 years after the date on which the claimant first knew, or in the circumstances ought to have known, (

i) that the injury for which the claimant seeks a remedial order had occurred, (ii) that the injury was attributable to conduct of the defendant, and (iii) that the injury, assuming liability on the part of the defendant, warrants bringing a proceeding, or (b) 10 years after the claim arose, whichever period expires first, the defendant, on pleading this Act as a defence, is entitled to immunity from liability in respect of theclaim.

(3) For the purposes of subsections (1)(

b) and (1.1)(b), ... (

f) a claim for a remedial order for the recovery of possession of real property arises when the claimant is dispossessed of the realproperty.

(6) The re-entry of a claimant to real property in order to recover possession of that real property is effective only if it occurs prior to theend of the 10-year limitation period provided by subsection (1)(b).

(7) If a person in possession of real property has given to the person entitled to possession of the real property an acknowledgment inwriting of that person’s title to the real property prior to the expiry of the 10-year limitation period provided by subsection (1)(b), (

a) possession of the real property by the person who has given the acknowledgment is deemed, for the purposes of this Act, to havebeen possession by the person to whom the acknowledgment was given, and (

b) the right of the person to whom the acknowledgment was given, or of a successor in title to that person, to take proceedings torecover possession of the real property is deemed to have arisen at the time at which the acknowledgment, or the last of theacknowledgments if there was more than one, was given. [23] The leading case in Alberta on the test for adverse possession is Lutz v Kawa (1980), 1980 ABCA 112 , 112 DLR(3d) 271 at 282, 13 Alta LR (2d) 8 (CA).

The Alberta Court of Appeal stated in Lutz: The essentials to be established in a case of adverse possession are that the claimant be in possession and that the true owner be out ofpossession. The nature of the possession, of course, varies with the circumstances of the case. [24] More recently, the Court of Queen’s Bench in Rinke v Sara, 2008 ABQB 756, provided a clear set of criteria that must be metto establish a claim of adverse possession: [19] The elements to establish a claim for adverse possession are as follows: a. The true owner must be out of possession of the claimed lands; b.

The claimant must be in use and occupation of the claimed lands;

c. The claimant’s use and occupation must be exclusive, continuous, open or visible and notorious for the requisite 10-year period; and d. The fact of use and occupation by the claimant is the only determinant while the belief, ignorance, mistake or intention of the claimant is immaterial. [ 25 ] Rinke has been followed in 1215565 Alberta Ltd v Canadian Wellhead Isolation Corp , 2012 ABQB 145 , and Denesik v Verhulst Estate, 2016 ABQB 36 , Master Schlosser, aff’d Verhulst Estate v Denesik, 2016 ABQB 668 . The elements enumerated in Rinke v Sara are in keeping with the Court of Appeal’s holding in Lutz . A.

The Respondent must be out of possession of the claimed lands [ 26 ] In order for a claim of adverse possession to be established, the Applicants must show that the Respondents were out of possession of the Disputed Land. From 1997 until 2015, the Respondents did not engage in any activities on the Disputed Land.

They did not use the land, construct anything on the land, or enter onto the land. [ 27 ] For at least ten years, the Respondents were out of possession of the Disputed Land. [ 28 ] The Respondents argued, following the reasoning of Master Schlosser in Denesik, that dispossession occurs once the true owner realizes that he or she must assert a right to their property or risk losing the land: Denesik , 2016 ABQB 36 at para 18 .

Denesik was appealed and upheld by Shelley J of the Court of Queen’s Bench although she did not address the definition of dispossession. [ 29 ] With respect, I disagree with the reasoning of Master Schlosser.

While this type of inquiry may be relevant at the stage of determining whether an applicant’s use and occupation was open and notorious, it is not relevant to determining whether a respondent was “out of possession of the claimed lands.” Bruce Ziff states in Principles of Property Law , in relation to the concept of dispossession, that there must be a “discontinuance of occupation by the true owner,” which means that the adverse possessor must have “exclusive possession”: Ziff at 148.

This is the appropriate inquiry for whether a Respondent is “out of possession.” [ 30 ] In this case, the Respondents were never present on the Disputed Land and did not treat it as their own. There was a complete discontinuance of occupation by the true owner. B. The Applicant must be in use and occupation of the claimed lands [ 31 ] The Applicants enjoyed exclusive possession of the Disputed Land.

In the case of O’Brien v Fox , 2000 ABQB 1002 , the Court stated that the adverse possessor must show “an act or series of acts which amount to a continuing announcement that the adverse possessor lays claim to the lands”: O’Brien at para 30 , citing Zekonja v Donald , (1983) 50 AR 379 . [ 32 ] In this case, the Applicants constructed sheds on the land, used the land for storage, constructed a well and a flower bed, and planted spruce seedlings over several years. These acts amounted to a continuing announcement that the Applicants laid claim to the land.

Given these series of acts, I find that the Applicant was in exclusive use and occupation of the Disputed Land. C.

The Applicant’s use and occupation must be exclusive, continuous, open or visible and notorious for the requisite 10-year period [ 33 ] The Applicants suggest that the question that should be asked at this stage is: “At what point did the Respondents know or should have known that the sheds were sitting on the Disputed Land?” In contrast, the Respondents suggest that the appropriate question to ask is: “At what point did the Respondents realize that they should take action to retake the land and did they wait 10 years after that point to re-enter the Disputed Land?” [ 34 ] I agree with the Respondents that the relevant inquiry at this stage is: “At what point were the Respondents put on notice that they should bring a claim?”: see Ziff at 146.

The Respondents were put on notice in 2007 when Mr. Knysh saw the North Shed for the first time. [ 35 ] For the entire relevant period, the Applicant’s use and occupation was exclusive and continuous. The Applicants used the land to the exclusion of all others from 1965 until the re-entry of the Respondents in 2015. [ 36 ] However, prior to 2007, the Applicant’s use of the Disputed Land was not open, visible, or notorious. The evidence clearly shows that the sheds, flower bed, and well were hidden behind the thick shelterbelt of trees and brush between the two properties.

The Applicants have not put forward any authority to suggest that the Respondents were under an obligation to survey their property and check for any acts of adverse possession. Just because the sheds could have been seen from a particular vantage point does not mean that they were visible to the Respondents. [ 37 ] For these reasons, I conclude the limitation period started running in 2007 when the Applicant’s use and occupation became open and visible to the Respondents. D.

The fact of use and occupation by the Applicant is the only determinant while the belief, ignorance, mistake or intention of the Applicant is immaterial [ 38 ] Both parties acknowledge that I am not dealing with a mutual mistake of a property line. The fact that the Applicants believed that the Fence denoted the actual property line is not relevant to whether the claim for adverse possession has been established.

VI. Conclusion [ 39 ] The Respondents are required by the Limitation Act to bring a claim within 10 years of being dispossessed. I have found that the limitation period began in 2007 when the Respondents saw the sheds on the Disputed Land. At this point, the Applicants’ use and occupation of the Disputed Land became open and notorious, as required by the test for adverse possession. [ 40 ] Given that the limitation period began in 2007, the Respondents are not yet limitation-barred from asserting their right to the Disputed Land.

The Applicants have not made out a claim for adverse possession. [ 41 ] For these reasons, the application is dismissed. VII. Costs [ 42 ] The Respondents have successfully opposed the application and shall have their costs on Col 1 of

Schedule C of the Rules . Dated at the City of Edmonton, Alberta this 22 th day of November, 2017. L.A. Smart M.C.Q.B.A. Appearances: Megan Hogendoorn Bryan & Company LLP for the Applicants Kimberly Precht Field Law for the Respondents