Supreme Court of Canada hears Nelson ‘squatter’s rights’ case

The City of Nelson is appealing a court decision that gives a resident title to a disputed piece of land.

Most requests for leave to appeal to the Supreme Court of Canada are denied. One exception is a current property law case from Nelson.

It’s not every day a Nelson case makes it to the Supreme Court of Canada.

But last week the court heard arguments in a Nelson property case whose history goes back more than a century.

The city appealed a B.C. Court of Appeal decision that sided with a Nelson couple who are 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 Geraldine 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, but the doctrine of adverse possession can apply through successive owners of a property.

The City of Nelson and the B.C. Attorney General challenged their occupation of 1114 Beatty in B.C. Supreme Court.

The city won. Then the Mowatts appealed to the B.C. Court of Appeal, and won. So the city appealed to the next and ultimate level, the Supreme Court of Canada.

The Supreme Court heard evidence in the case last week, but the judge reserved decision until later in the fall.

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.

The Mowatts could not be reached for comment and their lawyer was unwilling to comment because the matter is before the court.

Nelson’s city manager Kevin Cormack told the Star, “Council made the decision to move forward with (an appeal to) the Supreme Court of Canada to ensure that land identified as right-of-way remains public land.

“This particular land is important to the city’s infrastructure needs as well as providing and maintaining public access to the waterfront, a principle identified in the city’s Official Community Plan.”

Council was also concerned that the case might set a precedent with respect to private citizens using public land as an extension of their own property, Cormack said, adding that the case is considered provincially significant and that the Supreme Court of Canada declines to hear about 99 per cent of the leave to appeal applications submitted to it.

He said the city paid a flat fee of $25,000 to the Vancouver law firm of Bull Housser and Tupper to conduct the appeal.

More detail about this case can be found in an earlier Nelson Star story here. The written judgment of the B.C. Court of Appeal (the decision that the city appealed to the Supreme Court of Canada) can be found here.

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