D knew disputed land belonged to P but thought he could use it until P's road project went ahead, and said so to P. P refused this claim but made no attempt to enforce ownership during statutory period. D fenced off and locked disputed land and used it as a garden.
(1)Can adverse possession be established on development land?
(2) Can adverse possession be established while acknowledging ownership?
(1) Yes, where unequivocal intention to exclude is demonstrated, inconsistent use test is irrelevant.
(2) Yes, one can acknowledge ownership because one need not have an intention to own but to possess.
Sec. 15(6) The right of action shall be treated as having accrued on the date of the dispossession or discontinuance.
- That fact that D knows it belongs to P should make the Court more cautious to find adverse possession.
Adverse possession needs to establish:
1. Factual possession of the land
-Clearly established by locked fence and garden.
2. Intention to exclude the world at large, including owner
-Animus possidendi: New lock and chain on fence demonstrate intention
-Acknowledgement of Ownership: The letter acknowledging ownership is not a problem because what is required is an intention to possess not own.
3. Discontinuance of possession
-Where there is no intention for the land, the absence of inconvenience to the owner (I.e. inconsistent use) is irrelevant and time begins from dispossession.