) ) MARIA FAZZARI v. GIUSEPPI, 2013 ONSC 7743

CITATION : Fazzari v. Pynn, 2013 ONSC 7743 COURT FILE NO.: 11-30765 DATE: 20131216 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) MARIA FAZZARI and GIUSEPPI FAZZARI Plaintiffs – and – DERRICK HERBERT ELI PYNN and DEBBIE RIECKERMANN, also known as DEBBIE PYNN Defendants ) ) ) ) ) ) ) ) ) H. Faber, Counsel for the Plaintiffs S. Ilavsky, Counsel for the Defendants ) ) ) HEARD: May 21, 23, 24 and June 27, 2013 THE HONOURABLE MR. JUSTICE R.B. REID [ 1 ] The plaintiffs seek a declaration of ownership in a portion of land registered in the name of the defendants.

The plaintiffs claim the ownership interest based on adverse possession. They also claim damages for trespass and nuisance. [ 2 ] The parties own adjoining properties. This dispute relates to a strip of land along the 150-foot northerly border of the defendants’ property measuring 12.5 feet in width at the northeast corner, diminishing to 8 feet at the northwest corner. Background: [ 3 ] The lands in question are located in a rural area of Hamilton, Ontario. [ 4 ] Over time, large rural lots have been subdivided. [ 5 ] In January1974, the plaintiffs bought a 24 acre parcel.

They built a house and have lived there since that time. The previous owner acquired the property in 1946. The municipal address is 1581 Westover Road, Hamilton. [ 6 ] In August 2008, the defendants acquired their parcel of land from the female defendant’s parents. The parcel is comprised of about a ½ acre. Manfred Rieckermann, the female defendant’s father, had built a house on this parcel after he acquired the lot from his brother in 1970.

The parcel, which is known municipally as 1575 Westover Road, was severed off from a 26-acre property owned by the Rieckermann family since 1954. [ 7 ] The deed to the defendants’ property describes its dimensions as being 142.5 feet in width by 150 feet in depth. It refers to a plan of survey which includes reference to a wire fence inside the northerly boundary line.

The area between the wire fence and the deeded property line forms the disputed land in this proceeding. [ 8 ] The female defendant’s grandfather is said to have built the wire fence in the 1950s to protect a vegetable garden from neighboring animals. In the 1960s, he planted trees near the property line and the wire fence. The trees became quite dense and provided a privacy screen between the parties’ properties. Over time, the fence deteriorated and was removed by Manfred Rieckermann. [ 9 ] The distance between the plaintiffs’ house and the defendants’ house is about 100 feet.

The fence line was approximately midway between the two houses. [ 10 ] Around the time the defendants acquired their half-acre parcel, the trees were removed. Therefore, there is now no barrier between the two houses. The resultant loss of privacy for the plaintiffs was the catalyst for this litigation. [ 11 ] The defendants maintain ownership based on the dimensions of their property described in the deed. The plaintiffs rely on the former fence line as the boundary, and object to the defendants’ use of the strip of land to the north of it. Issues to be determined:

[ 12 ] The two issues in this case are: a. Have the plaintiffs established possessory title to the disputed parcel by adverse possession? b. If so, are they entitled to damages for the improper use of the property including the removal of trees? [ 13 ] The parties agree that evidence of adverse possession must predate the conversion of the properties to the land titles system which occurred on September 25, 1995.

Factual background: [ 14 ] The plaintiffs claim that the wire fence acted as a barrier between the properties, and that they exclusively maintained the property on the north side of the fence following the construction of their house in 1974. [ 15 ] Grass grew on the disputed property, which was in effect part of the plaintiffs’ side yard, and was not used for any other purpose or, as Maria Fazzari put it, the area was used by no one. [ 16 ] The fence ran approximately east to west from a point about 10 feet west of the Westover Road allowance.

It extended the entire depth of the defendants’ property and perhaps beyond. [ 17 ] The stand of trees did not extend the full length of the defendants’ property line, but did provide an additional barrier between the houses, and was located mainly on the defendants’ side of the fence. [ 18 ] Rocco Fazzari, the plaintiffs’ son, lived with his parents in their home from the time it was built in 1974 until 1985. Since then, he has lived nearby. He testified that from about 1975 until he moved away from home, and occasionally thereafter, he mowed the grass up to about one foot from the fence.

Sometimes his mother and sister helped. He had no communication with the Rieckermann family, and was never aware of a Rieckermann presence on his parents’ side of the fence. He saw no evidence that the Rieckermanns maintained the property on his parents’ side of the fence. [ 19 ] Maria Fazzari confirmed her son’s evidence. The only time she recalled her neighbor’s presence on the disputed parcel was when her husband was in the hospital with serious health problems in approximately 2008. During this period, Manfred Rieckermann cut the grass as a neighbourly gesture. [ 20 ] Mrs.

Fazzari recalled a concern raised by the building contractor when her house was being constructed in 1974 to the effect that it was being built too close to the property line. Mrs. Fazzari was unclear as to how the matter was resolved, but recalled that the contractor advised that everything was all right. She had no expertise in surveys or boundaries, and did not discuss the boundary issue with the Rieckermanns at the time. [ 21 ] In March 1974, a survey was performed at the plaintiffs’ request.

The survey showed the wire fence as the “new limit”, and distinct from two other deed lines - one of which related to the plaintiffs’ predecessor in title, and the other to the defendants’ predecessor in title [1] . There was no explanation for the use of the fence line as the “new limit” instead of either of the pre-existing deed lines. [ 22 ] Mrs. Fazzari recalled that the fence deteriorated over time and was removed by Manfred Rieckermann, with her permission.

He apparently wanted to clean up the property. [ 23 ] Guiseppi Fazzari, who is currently in his 80s, did not testify because of health and language concerns. [ 24 ] Manfred Rieckermann testified for the defendants. He lived from 1954 to about 1963 on the 26 acre parcel owned by his father, and later purchased the half-acre lot from his brother in 1970. He lived on this lot with his wife from 1972 until the property was transferred to the defendants in 2008. [ 25 ] Mr.

Rieckermann said that he was able to access the disputed strip of property by walking around the corner-post of the fence on the northeast corner of his property. He did so occasionally. The fence had been deteriorating and he removed it in the 1980s. He did not ask permission to do so from the plaintiffs. He described noticing surveyors’ stakes on the Fazzari side of the fence line, which he took to be the boundary line of his property. [ 26 ] Mr. Rieckermann testified that he cut the grass on the disputed property with a push gas lawnmower.

He also testified that he cut the grass under some of the plaintiffs’ trees, where the grass was not accessible to the Fazarris’ ride-on mower. He observed Mr. Fazzari cutting grass regularly. [ 27 ] Mr. Rieckermann also testified that over two or three days in the fall, he would rake the leaves from the maple trees that were planted in the disputed area, and carry the leaves into a swampy area at the rear of the property. [ 28 ] There had never been a boundary dispute between the parties until the current issue arose.

Position of the plaintiffs: [ 29 ] The plaintiffs submit that there are conflicting titles according to the registered deeds. However, the plaintiffs argue that the fence or fence line was always accepted as the boundary between the two properties once the plaintiffs became owners in 1974. Though the fence line formed the boundary according to the plaintiffs’ deed, this case was argued on the plaintiffs’ claim for possessory title by adverse possession.

[ 30 ] Fences have commonly been accepted as the strongest evidence of adverse possession, particularly when they enclose an area from which the titled owner is excluded. [ 31 ] The surveyor in 1974 fixed the boundary, described as the “new limit” to the property, in accordance with the fence line because that was the best available evidence. [ 32 ] Counsel for the plaintiff notes that the survey, which was the basis for the defendants’ deed, was calculated in error at the time the lot was severed in 1968.

Therefore, the stakes which Manfred Rieckermann observed and relied upon were not a reliable boundary to the property. [ 33 ] Counsel notes that a statutory declaration from April 1968 by Paul Petroi, the plaintiffs’ predecessor in title, refers to a boundary dispute with his southern neighbour. This issue was set out as follows: At the south end, when the survey was made about two years ago, it was discovered that my southerly fence was approximately 40 feet north of its proper location. At that time, by agreement with the owner of the lands to the south, the fence was moved to its present location.

This statutory declaration is relied on to support the plaintiffs’ position that the fence formed the acknowledged boundary line. [ 34 ] The intention to exclude is normally a required component of an adverse possession claim, including an “inconsistent use” requirement. Thus, a claimant needs to show an intention to exclude the owner from such uses as the owner wishes to make of the property.

However, counsel submitted that because neither of the parties, or their predecessors in title, were aware of the true deeded boundary line and accepted the fence as the boundary line, the intent to exclude can be implied or ignored based on mutual mistake.

Even where there is only a unilateral mistake, in this case by the plaintiffs, as to the extent of their property, the inconsistent use aspect of the intention to exclude can be relaxed. [ 35 ] The plaintiffs’ evidence, through both Maria Fazzari and Rocco Fazzari, was that the plaintiffs cut the grass and otherwise maintained the property regularly, using it as their own. Counsel suggests that the evidence of the plaintiffs be preferred to that of the defendants given the failure of the defendants to make use of the property by entering and maintaining it.

Position of the defendants: [ 36 ] The defendants rely on the evidence of Manfred Rieckermann, specifically that he was never excluded from the disputed property. He maintained the property by cutting the grass and raking leaves. The fence did not prevent him from accessing the property.

The defendants, therefore, dispute the plaintiffs’ evidence that they made exclusive use of the disputed property. [ 37 ] The defendants submit that even if the evidence of the plaintiffs is preferred with respect to the maintenance of the disputed property, that use does not demonstrate a sufficiently clear intention to exclude so as to support a claim for adverse possession. There was never a point in time that the limitation period began to run against the defendants’ predecessors in title.

They were never put on notice that the plaintiffs were excluding them, or using the property in a way inconsistent with the defendants’ ownership and occupation. [ 38 ] The statutory declaration by Mr. Petroi of April 1968 is unclear, and in any event cannot be considered evidence of an actual agreement simply by the assertion of such. As well, there is no evidence of a 1966 survey, and Manfred Rieckermann testified that the fence was never moved. [ 39 ] There was no mutual mistake pursuant to which the parties, or their predecessors in title, assumed that the fence line was the property boundary. Mr.

Rieckermann was aware of the correct property line, was in possession of the 1968 survey, and was present on the disputed property from time-to-time in accordance with his ownership interest. Therefore, there is no basis for finding that the intent to exclude, and the related element of inconsistent use, has limited or no application. Applicable law: [ 40 ] The test for extinguishment of title by adverse possession is an onerous one since the law generally protects the titled owner of property.

The claimant bears the onus of proof. [ 41 ] The statutory period for establishing possession is set out in the Real Property Limitations Act, R.S.O. 1990, c. L. 15, where, by virtue of sections 4 , 5(1) and 15 , one can acquire possessory title to a property and extinguish the registered owner’s title after a period of 10 years.

The Act imposes an obligation on the holders of legal title to enforce their rights within 10 years after the possession of the property by the non-titled party begins, failing which the titleholders are prevented from asserting a claim or defending against an adverse possessor. [ 42 ] It is acknowledged that in most cases, there are three elements which a claimant must prove to establish possessory title: a. actual possession of a specific parcel of property by the claimant or his/her predecessor in title for the statutory period of 10 years; b. that such possession was with the intention of excluding the true owner from possession; and c. that the true owner was in fact effectively excluded from possession for the statutory period.

If the claimant fails in any one of those respects, the claim fails. [ 43 ] Satisfaction of the first element requires that the possession must be open, notorious, peaceful, adverse, exclusive, actual and continuous. The failure of any one of those elements is fatal to the claim.

This is an example of the difficulty imposed by the law on parties who wish to dispossess registered owners. [ 44 ] Some of the adjectives have an obvious meaning that needs no elaboration, while the meaning of others is less self-evident Being open and notorious (as opposed to clandestine) shows both that the claimant is using the property as if he was the owner, and also gives the true owner the opportunity to take action to protect his rights. “Exclusive” use connotes that the registered owner is not using the property. “Adverse” means that the claimant is in possession without the permission of the owner. [ 45 ] In cases where both parties share a misunderstanding about the true ownership of the property, the second element of the test does not need to be proven, namely that possession was with the intent to exclude the owner.

If both parties share a mistaken understanding about ownership, it would make no sense for there to be a requirement to prove an intention to exclude. Thus in those cases the law implies that the second element of the test is met. [ 46 ] The third element is that the true owner is out of possession or effectively excluded. The conduct of the owner is important: non-use alone is insufficient because the titled owner is presumptively in possession.

However, if the land is used in a way that is inconsistent with the owner’s use, that will be evidence of dispossession if, havi ng been made aware of the claimant’s use, the owner does nothing to assert his or her interest. [ 47 ] The challenge for every claimant in an adverse possession claim is to establish facts that bring the case within the applicable legal principles. Analysis and Conclusion: [ 48 ] The parties have assumed that the defendants have paper title to establish ownership to the disputed property based on a boundary established in a 1968 deed.

The trial proceeded on the basis that the plaintiffs must establish possessory title to the disputed property despite the fact that they appear to hold title to it based on their deed from 1974. [ 49 ] The plaintiffs’ case is built on the assumption that the fence line should be the correct boundary based on the situation that existed between 1974 and the entry of the property into the land titles regime in 1995. [ 50 ] As noted, the evidence of Maria Fazzari and Rocco Fazzari was to the effect that only they had possession of the disputed property for the period from 1974 to 1995.

That evidence was in conflict with the evidence of Manfred Rieckermann, who testified that he came on the property during the relevant period to cut grass or otherwise maintain the land. There was also conflicting testimony about whether he asked permission to remove the old fence, or whether he simply advised Mrs.

Fazzari of his intention to do so. [ 51 ] I do not find it necessary to resolve these conflicts to determine the question of whether there was actual possession and effective exclusion. [ 52 ] Assuming the plaintiffs’ case at its highest, there was an old wire fence which according to the evidence was built by Manfred Rieckermann’s father in the 1950s to protect a vegetable garden from the neighbour’s animals. Trees were planted on the defendant’s side of the fence in the 1960s. The fence did not enclose any property.

It began at the easterly boundary of the defendants’ property, some 10 feet away from the road allowance. Thus, it was not excluding anyone from walking around it. It was a barrier but not an enclosure, and as such it was not conclusive evidence of exclusion. [ 53 ] The use of the disputed property by the plaintiffs, that is grass cutting and related maintenance, was not inconsistent with the defendants’ use, namely that the land simply be a buffer between the two residences.

There was some evidence of planting by the plaintiffs, but I am not satisfied on the evidence that it was sufficiently clear that the plantings were within the 8.5 to 12 foot strip north of the fence line, which is the disputed property. [ 54 ] Regardless of whether the defendants’ predecessors in title came onto the disputed property, there was insufficient evidence of an intention to exclude the true owner from possession and insufficient evidence of effective exclusion for the plaintiff to establish possessory title. [ 55 ] As noted, the purpose of the legal requirement to show an intention to exclude is to give the property owner notice and a chance to respond to defend his or her title so as not to be dispossessed unfairly.

The plaintiffs’ actions in using the property were not sufficiently clear to provide that notice. [ 56 ] Similarly, there was not sufficient evidence to establish a mutual mistake which, had it been established, might have minimized the need for the defendants to prove the intention to exclude. [ 57 ] Manfred Rieckermann testified that he was aware of the true boundary of his property to the north of the fence line. He saw the surveyor stakes from the 1968 survey when the half-acre lot was created, and which stakes were identified in the 1974 survey commissioned by the plaintiffs.

He had grown up on the farm from which the defendants’ lot was severed. He knew the origin of the fence, and was able to testify about the planting of the trees. I accept his evidence, and on that basis I find there was no mutual mistake as to the boundary being the fence line. [ 58 ] The 1974 survey in itself is not determinative of the boundary. There was no explanation for the designation of the “new limit” based on the fence line. As Ontario Land Surveyor Dasha Page said in evidence, surveyors do not set boundaries, but rather review the available evidence in the field.

[ 59 ] The statutory declaration by Mr. Petroi in April 1968 did not assist the plaintiffs. An agreement with the adjoining property owner was asserted but not shown. The owner was not identified by name, and there was no evidence at trial that the fence had ever been moved. To the contrary, there was evidence that it was old and deteriorating.

Similarly, there was no evidence of any survey two years before the statutory declaration, as referred to in that document. [ 60 ] I note that when the defendants purchased their property from the female defendant’s parents in 2008, they signed an acknowledgment prepared by their lawyer which stated: “[T]here is a 12 foot portion of land on the northerly side of the property that appears to be lost as it has been fenced off by a wire fence.

It would appear that this piece of land is now included in the deed of the adjacent lands.” However, the lawyer testified that he prepared that document not on the basis of his legal opinion, but rather to protect himself in the event of any future claim that might be made against him by the defendants as a result of the inconsistency between the legal description of the plaintiffs’ lands and the Rieckermann property they were purchasing.

I do not consider it to be relevant to the outstanding issue, particularly given that it postdates the admitted relevant period of 1974 to 1995. [ 61 ] Although resolving the conflict in evidence is not critical to the decision, I find the evidence of the defendants given by Manfred Rieckermann to be more persuasive than that of Maria and Rocco Fazzari. [ 62 ] Rocco Fazzari was obviously the driving force behind the litigation. He was upset on behalf of his parents for their loss of privacy resulting from the removal of the stand of trees between the parties’ properties. His evidence was overstated.

For example, he identified a photograph of the stand of trees as conclusively those along the fence line, when in fact the evidence was clear from other witnesses including Mrs. Fazzari that the photograph related to trees on the south side of the defendants’ property. He also gave evidence that his father never cut the grass although his mother and Manfred Rieckermann disagreed. [ 63 ] Mrs. Fazzari learned that there was a boundary problem after discussion with her contractor in 1974, but was not able to provide any clarity about how the issue was resolved.

There was no evidence of a minimum side yard setback requirement which could have created a problem for the building contractor if the disputed property was not included. The more likely problem was that the property line of the plaintiff’s predecessor in title, Mr. Petroi, ran directly through the site of the house construction. [ 64 ] I find Mrs. Fazzari’s evidence, that the concern in 1974 was about a 12 foot strip of land, to be unreliable.

My finding is based on the combination of her professed ignorance about matters of property and surveying, her lack of understanding of how the matter was resolved in 1974, and the fact that there had never been a boundary dispute with the defendants or their predecessors. The 12 foot strip about which she testified is conveniently the width of the strip at issue in the lawsuit. [ 65 ] Although Mr. Rieckermann was vague about the date on which he removed the fence, his evidence was given in a credible and straightforward manner.

His explanation for the fence construction and the tree planting seemed reasonable, and it made sense that he did not need to seek Mrs. Fazzari’s permission for the fence removal or tree cutting since he was doing so on property that he believed to be his own. It is more likely that he contacted Mrs. Fazzari as a courtesy in advance of taking those actions.

The date of the removal of the trees was not particularly significant to him, or to the case, and his lack of precision in that regard did not trouble me. [ 66 ] Based on my conclusion that the plaintiffs have not proven the requisite elements to establish possessory title to the disputed property, it is not necessary for me to deal with the second issue about damages. [ 67 ] As a result, the plaintiffs’ claim is dismissed. There will be an order requiring the plaintiffs to remove the notice registered by them on title, which is described as instrument number WE718083.

Costs: [ 68 ] If the parties are unable to resolve the issue of costs consensually, I am prepared to receive written submissions according to the following timetable: the defendants are to provide to the plaintiffs their bill of costs together with brief written submissions within three weeks of this date. The plaintiffs are to deliver their response to the defendants within a further two weeks. The submissions by both parties and any reply submissions by the defendant are then to be filed with the court by no later than January 20, 2014.

If submissions are not received by that date or by any authorized extension, the parties will be deemed to have settled the issue of costs as between themselves. Reid J. Released: December 16, 2013 CITATION : Fazzari v. Pynn, 2013 ONSC 7743 COURT FILE NO.: 11-30765

DATE: 20131216 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: MARIA FAZZARI and GIUSEPPI FAZZARI Plaintiffs – and – DERRICK HERBERT ELI PYNN and DEBBIE RIECKERMANN, also known as DEBBIE PYNN Defendants REASONS FOR JUDGMENT REID J. Released: December 16, 2013