Real Estate Law. Real-World Lessons.

Every week, Ontario courts deliver decisions that reshape how real estate deals play out - impacting your closings, commissions, and client relationships. But who has time to sift through 50+ pages of legalese?

We do.

Clause & Effect breaks down Ontario’s biggest real estate cases into clear, practical takeaways for realtors, mortgage advisors, and investors. No fluff. No Latin. Just sharp lessons you can actually use.

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Released Friday, this decision changes the game on adverse possession!

What happens when homeowners discover that part of their backyard legally belongs to the City - but they’ve been using it, fencing it, and even paying taxes on it for years?

That’s the question the Supreme Court of Canada just answered in Kosicki v. Toronto, a case with massive implications for adverse possession in Ontario.

The Case: A Fence, a Park, and a Legal Fight

In 2017, Pawel Kosicki and Megan Munro bought a Toronto home whose backyard backed onto a laneway and, beyond that, Étienne Brûlé Park. Unbeknownst to them, a trapezoid-shaped slice of land (part of their fenced-in backyard) was actually owned by the City.

The City had acquired the land (along with the park) back in 1971, and a fence had been up since at least then, enclosing the now-disputed parcel.

The homeowners:

• Paid taxes on the land (until 2020)

• Used it privately as their backyard

• Maintained it exclusively

• Tried to buy it from the City in 2021, but were refused due to a green space policy

Instead, they claimed adverse possession - a legal doctrine that allows someone to claim title if they’ve occupied land openly and exclusively for 10+ years (prior to being coverted to Land Titles), and the true owner hasn’t acted.

The City refused, arguing the land was part of a public park system and shouldn't be lost to a private claim.

The Court Showdown

Does “public purpose” override the rules of adverse possession?

The City argued:

• The land was designated as parkland and held for public use.

• Courts should recognize a common law exception: public land shouldn’t be lost through adverse possession.

• Municipalities shouldn’t be penalized for failing to monitor every fence or tree across thousands of acres.

Kosicki & Munro argued:

• They met all legal requirements under Ontario’s Real Property Limitations Act (RPLA): open, notorious, exclusive, adverse, continuous possession for 10+ years.

• The RPLA contains a closed list of public land exemptions (e.g., Crown land, road allowances)… and municipal parkland isn’t on it.

• Courts can’t invent new exemptions. That’s the legislature’s job.

The Decision: Owners Win - Municipal Parkland Not Exempt from Adverse Possession

The Supreme Court ruled 5-4 in favour of Kosicki and Munro:

Justice O’Bonsawin (writing for the majority) held that:

• The RPLA is clear: after 10 years, the true owner’s title is extinguished if adverse possession is proven

• Municipal parkland isn’t exempt, and courts can’t invent new exceptions under the guise of “public benefit”

• The City’s title was extinguished over 40 years ago; the fence had been up since at least 1971

The court rejected the idea that municipalities deserve special treatment under a vague “public purpose” exception, unless the legislature explicitly says so.

Result: Kosicki and Munro are now the legal owners in fee simple of the disputed land. The land registry must be updated accordingly.

No takeaways today. Just one big, unexpected win for the little guy, courtesy of Canada’s highest court.

Questions or advice needed on your next closing? Reach out at [email protected] or call 519-997-3775.

Solid contracts ensure seamless closings.

Until next time.

-Christian