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Can Title to Your Home be Legally Terminated if You Go On Vacation?

The title is a little bit of an exaggeration, but here are the facts: Back in 1979, a man named Edward and a woman named Heather moved in together (common law) and bought a home, taking title as joint tenants. When the relationship went sour shortly after in 1983, Heather moved out. As far as Edward was concerned, he never heard from her again.

Edward continued to live in the home, and paid all the maintenance costs until he died in 2014. He had no Will. At that point, Edward’s survivors realized that title to the home was still held jointly with Heather, so they tried strenuously – but unsuccessfully – to locate her. Their efforts included posting ads to several social media sites, performing a skip trace search, contacting Vital Services and the OPP, and advertising in the Canada Gazette.

Eventually, they applied to court to have sole title vested in Edward’s Estate.

The uncommon scenario raised the legal issue of whether one joint tenant such as Edward could oust another joint tenant such as Heather by adverse possession during his lifetime, in order to give him full (rather than joint) title. Under common law, this was historically not allowed, but the court ruled that the provisions of section 11 of the Real Property Limitations Act permitted that outcome in some circumstances. The law required that for at least the 10-year period immediately preceding the application: (1) that Heather’s possession of the home was discontinued during that time; (2) that Edward had actual possession of the home; and (3) that his possession was with the intent to exclude Heather.

In this case, the first and second requirements were easily met.

The outcome therefore hinged on whether the third branch of the legal test was satisfied, i.e. that Edward’s possession of the home was with the express intent to exclude Heather from living there.

The court held that it was. While conceding there was no clear and direct intent by Edward, in its absence the court was prepared to infer a presumed intention in this case, given all the circumstances. The court accordingly issued a vesting order declaring Edward’s Estate as legal and beneficial owner of the property. See The Estate of Edward Raymore Post by its Estate Trustee, Brian Thomas Alfred Post v. Heather Ann Hamilton, 2015 (ONSC).