Courts ponder Nelson ‘squatter’s rights’ case

Residents win partial victory in property fight with city

Earl and Geraldine Mowatt's case was heard at the Court of Appeal in Vancouver.

A Nelson couple is attempting to retain a 40-by 52-foot lakeside lot at 1114 Beatty Street based on the doctrine of adverse possession, otherwise known as “squatter’s rights.”

Earl and Gerry Mowatt live on two adjacent lots on Beatty St., the other being 1112 Beatty. The ownership of 1114 Beatty St. has been uncertain for more than a century, but it has functioned as part of 1112 Beatty. The Mowats bought 1112 Beatty in 1992. Later the City of Nelson and BC Attorney General challenged their occupation of 1114 Beatty.

The Mowatts went to the BC Supreme Court asking that they be named the owners of 1114 Beatty, based on the doctrine of adverse possession. The double lot has been occupied by a succession of people since 1909, sometimes on the assumption it was one lot, other times on the understanding that 1114 was a city road allowance.

Adverse possession means the possession of land, without legal title, for a period of time sufficient to become recognized as legal owner. For a claim to succeed, the possession doesn’t have to be by the same person but can be a continuous succession of people.

To be valid in BC law, the circumstances of a claim of must have happened before 1975, as was the case here. An action to recover land can’t be started before 20 years for an individual or 60 years for the crown. Since the possession of the two lots started in 1909, when the George W. Cooper family settled on land that was not theirs, both of these limitation periods were satisfied.

The Mowatts lost in Supreme Court because the judge decided they could not establish enough details of ownership of the lot in the period between 1916 and 1920, and this broke the continuity of their claim.

They appealed to the BC Court of Appeal and have won a partial victory. In a March 10 judgement, three justices overruled the lower court ruling and decided the Mowatts’ evidence of continuous occupancy from 1916 to 1920 was convincing.

But that’s not the end of it because when the Supreme Court rejected the Mowatts’ application because of what it saw as a gap, it didn’t bother looking at the period after that, believing the case settled. Now the Court of Appeal has sent it back to the Supreme Court, asking it to finish the job by looking at continuity of possession after 1920.

Because the matter is still being considered by the Supreme Court, the Mowatts weren’t willing to talk to the Star about it.

The court delved into land title and other local history back to 1900 in great depth. The court’s reasons for judgement, which can be viewed at bit.ly/Mowatts, state that this appears to be “the first land title adverse possession case to come before this court in over 60 years” and that “the appellants’ claim depends upon a web of circumstantial evidence, some of the threads mere shadows and others quite sturdy, from which inferences must be drawn by the application of judgment on the probability of the asserted fact.”

 

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