The City of Nelson has won a property case in the Supreme Court of Canada against residents Earl and Geraldine Mowatt.
The Mowatts were attempting to retain a 40 by 52-foot lakeside lot at 1114 Beatty St. based on the doctrine of adverse possession, otherwise known as squatter’s rights.
The couple lives at 1112 Beatty, adjacent to 1114. The ownership of 1114 Beatty has been uncertain for more than a century, although successive owners of 1112 Beatty have occupied it. Although the city paid the provincial government $1,000 in 2005 for the lot, it had never been properly registered with the province and so was not transferred to the city.
The properties are located at the foot of Fourth Street in Fairview. Mayor Deb Kozak said the city wanted the land for public access to the waterfront and because a city wastewater lift station is located on it.
“The city already bought this from the province so now we will complete the transaction. Now it will be owned by the city,” she said.
The Mowatts bought 1112 Beatty in 1992, but the doctrine of adverse possession can apply through successive occupiers of a property. The Mowatts argued that in this case possession of 1114 Beatty by various owners of 1112 Beatty extended back to 1909.
Squatters rights can be argued if a property has been occupied by one person, or a succession of people, for at least 60 years and if the possession started before 1975.
The doctrine of adverse possession has a complex history in Canadian civil law, with a variety of conditions that must be met in order to establish property rights under it. These conditions were at the heart of the legal arguments in appeals through three successive levels of court.
In 2006, the City of Nelson and the B.C. Attorney General challenged the Mowatts’ occupation of 1114 Beatty in B.C. Supreme Court and won.
Then the Mowatts appealed that decision to the B.C. Court of Appeal and won, prompting the city to appeal to the next and ultimate level, the Supreme Court of Canada. On February 17 the court decided in the city’s favour, ruling that the conditions for adverse possession had not been met.
The Mowatts declined to comment when contacted by the Star but deferred to their lawyer, who did not return a call. “The reason we went to the Supreme Court of Canada is it is about public land and community development,” Kozak said. “If (the Mowatts had been) successful it would have been a precedent, so it is of national importance.”
Kozak said the city has no immediate plans for the lot.
The city paid a flat fee of $25,000 to the Vancouver law firm of Bull Housser and Tupper to conduct the appeal.