Perspectives – Poverty and Property

It would not surprise most casual observers that property law generally does not afford protection to those without property. However, for those who are poverty stricken, it means that there is little protection for their own safety and well-being. This comment will discuss the extent to which impoverished Canadians are protected by property law (Ontario property law in particular), including the obstacles that exist and the potential solutions to these obstacles offered by Bill C-304.

First, the concepts of the necessity test, adverse possession, and abandonment will be tested against the challenges posed by poverty. This comment will then briefly assess the potential of Bill C-304 to fill in the gaps left by these common law principles. Poverty manifests itself in several different ways. In addition to those who find themselves on the street, many find themselves in homeless shelters and in substandard and/or overcrowded housing. While these may serve as temporary solutions for those fortunate enough not to end up on the street, they are highly short term solutions.

This leads many suffering from poverty to seek refuge wherever they can, often in contravention with the law. One example of this is the case of Southwark London Borough Council v Williams1 (SLBC), where two families sought refuge in unoccupied homes and were sued by the local authority. Though the case is from 1971, it is not difficult to contemplate a scenario today of a family desperate because of an inability to afford rent (as was the case of the Williams family) or one forced to leave a house because of abhorrent living conditions (as was the case of the Anderson family).

In fact, the Canada Mortgage and Housing Corporation has reported that as of 2006, 1. 5 million Canadians could not afford their rent or were living in residences that were either overcrowded or in need of major repairs. In SLBC, although the houses occupied by these families were deemed unworthy of repair or occupation, an order for possession was made against the defendants. SLBC is particularly notable for the precedent it set for the scope of the common law defence of necessity.

Lord Denning limited the applicability of this defence to certain situations of "imminent peril" and decided that the circumstances of the defendants did not necessitate taking refuge in these homes. This same defence was re-attempted in the Canadian case of R v Clarke3, 27 years later. In that case, the accused was charged with mischief for the attempted occupation of a vacant building in Toronto to raise social awareness about poverty and homelessness. Although the necessity defence was rejected by Justice Cole, his comments imply that he only rejected the argument because the accused was not homeless himself.

This suggests that the necessity defence may be useful for the homeless in this context in the future. In addition, Justice Cole appeared to accept the possibility of either an abandonment or adverse possession claim being successful defences for these claims. 5 While the necessity defence may hold promise in the poverty context, the concepts of abandonment and adverse possession would be ineffective for those in similar circumstances to the defendants in SLBC or R v Clarke.

For property to qualify as being abandoned, the true owner must give up actual control and the intention to control, to the exclusion of others. 6 In R v Clarke, actual control was maintained by the placing of plywood on the doors and windows, while intention to control was maintained by the periodic inspections carried out by the owner. Though actual control may have been given up in SLBC, the fact that the houses were cued to be torn down would most likely be construed as intention to control, meaning that possession would default to the true owner.

To make a successful claim of adverse possession in Ontario, the true owner must be dispossessed for the full statutory period of 10 years.  Even if occupiers in situations such as SLBC and R v Clarke can prove that the true owner was effectively dispossessed, this statutory period would make adverse possession an unrealistic strategy in Ontario. Furthermore, Ontario's Land Titles Act imposes additional barriers, since any land registered under this system will be generally immune to claims of adverse possession