Inconsistent Use: A Victory for Ownership, or a Concern for the Rule of Law?Nelson (City) v. Mowatt, 2017 SCC 8 (CanLII)
This article comments on the Supreme Court of Canada’s decision in Nelson (City) v Mowatt, (herein, ‘Mowatt’,) and Professor Larissa Katz’s article, “The Moral Paradox of Adverse Possession: Sovereignty and Revolution in Property Law.” It explores the ‘inconsistent use’ requirement in the test for adverse possession over five parts. Part one explains adverse possession and the Supreme Court of Canada’s decision in Mowatt. Part two defines inconsistent use. Part three critically analyzes Larissa Katz’s article in support of inconsistent use. Part four presents the author’s case for the rejection of inconsistent use. Part five concludes that Mowattwas correctly decided. The essay’s thesis is that inconsistent use should be rejected because it is arbitrary, even though it logically follows from the ‘best’ notion of ownership which a legal system might allow.
Part 1: Adverse Possession and Mowatt
Adverse possession allows a ‘squatter’ to acquire rights over the land of the ‘paper owner’ if three components are satisfied. First, the squatter must be in ‘physical control’ of the land. Second, they must “intend to possess the land as owner” . Third, they must do so for the requisite time. When this happens, the paper owner’s ability to sue to recover the land is time-barred and their title is extinguished. The squatter then has “the best claim to the land”.
Perhaps the most controversial aspect of adverse possession is whether a fourth component should be added: ‘inconsistent use’. It is controversial because its treatment differs throughout the Commonwealth. It has been rejected in British Columbia and England & Wales, but has been accepted in Nova Scotia and Prince Edward Island.
The Supreme Court of Canada recently considered inconsistent use in Mowatt. There, the respondent squatters challenged the disposition of a ‘disputed lot’ by the third-party paper owner, the Provincial Crown, to the appellant City of Nelson. The squatters argued that they satisfied the three components noted above and therefore had “the best claim to the land”. If the squatters were right, it would follow that the paper owner could not give the appellants what it did not have: nemo dat quod non habet. The appellants countered that, inter alia, inconsistent use was a fourth component of adverse possession which could not be proven by the squatters.
Writing for the Court, Brown J held on this point that inconsistent use “forms no part of the law of British Columbia governing adverse possession”. This essay defends this holding on normative grounds that Brown J declined to consider.
Part 2: Inconsistent Use
The attempts of the courts to define inconsistent use have been largely unsatisfactory. For example, the Supreme Court of Canada in Mowattdefines inconsistent use as “use … [that is] inconsistent with the intended use of the [paper] owner.” This is a tautologous definition. Tautology notwithstanding, similar definitions have been provided by lower Canadian courts.
Some cases have given more direction on its meaning. For instance, Skidmore v Parkinspeaks of “[precluding] the [paper] owner from making use of the property [they] wanted to make of it.” At the very least, this definition does not use the word ‘inconsistent’. However, it does not avoid using the word ‘use’.
However, the lack of a satisfactory jurisprudential definition is an insufficient reason to reject the concept. Its meaning seems intuitive. Consider the following example:
Sam the squatter is a rough sleeper and intends to use an abandoned building as a home. Sam has two buildings from which to choose: a house or a school. Presumably, the paper owner of the house “wanted to make of it”a home whereas the paper owner of the school “wanted to make of it”an educational institution. Assuming all the other substantive elements are satisfied, the ‘inconsistent use’ requirement would bar Sam from acquiring a right in the house: both the squatter and the paper owner used the house in the same way. The same bar would not operate if Sam squatted in the school: Sam “wanted to make [a home] of it,” whereas the paper owner wanted a school.
In light of this example, it may be that the language of ‘ouster’ is useful in understanding inconsistent use. Indeed, Sam ‘ousted’ the intended use of the school’s paper owner but did not ‘oust’ the house’s paper owner in the same way.
Therefore, inconsistent use seems understandable even if its jurisprudential definitions lack substance. Should inconsistent use be adopted?
Part 3: A Critique of Katz
Katz argues that inconsistent use should be adopted based on three points. First, she contends that there is a link between inconsistent use and a legal system’s conception of ownership. Next, she makes the normative claim that the most preferable conception of ownership supports using ‘inconsistent use’ in adverse possession. Finally, she suggests that inconsistent use can justify adverse possession’s ‘moral paradox’ better than other theories because it does not require comparing the squatter and paper owner’s individualized moral desert. Each point will be evaluated in turn.
1. Ownership and Inconsistent Use are Linked
Katz argues that ownership and inconsistent use are linked by contrasting England & Wales with ‘Anglo-American’ jurisprudence. To explain this link, each system will be considered in turn. For the sake of the argument advanced in the rest of this paper, I will take for granted that Katz is correct in establishing this link.
I. England & Wales
It is generally accepted that English law does not have a concept of absolute ownership in land. Instead, land is held by a tenant of the Crown for a ‘slice of time’ known as an estate. The ‘strongest’ right to which anybody is entitled is the freehold, viz.possession of the Crown for an indefinite duration. English law does not require inconsistent use for a squatter to succeed in adverse possession. Katz explains that the repudiation of ‘inconsistent use’ follows from England & Wales’ relative title by noting that squatter and paper owner’s entitlements to the land are ‘symmetrical’, (i.e. both parties are possessors, albeit of stronger and weaker degrees). When the squatter succeeds, they ‘continue’ the paper owner’s entitlement instead of receiving a ‘new’ property right. Given this continuance, the requirement of ‘ouster’ seems out of place: the squatter and the paper owner are both the same tenant vis-à-vis the Crown and outside world.
II. Anglo-American Jurisprudence
For Katz, ‘Anglo-American’ jurisprudence has a conception of ownership, viz. that the owner has ‘agenda-setting authority’ over the property in question. This model requires inconsistent use. Inconsistent use follows from ‘agenda-setting’ ownership because the squatter, as mere possessor, acquires a ‘new’ property right – ownership – by taking the agenda-setting authority from the paper owner. Hence, inconsistent use is evidence of the act necessary to distinguish the squatter’s position before and after their equity crystalized.
2. Inconsistent use follows from the ‘best’ notion of ownership under the existing literature.
Katz then notes that ‘Anglo-American’ ownership should be preferred. It is more “robust”than English ownership, which is “weak”because relativity of title suggests conceptual “parity between the … [squatter] … and the [paper] owner.” If this is right, inconsistent use should form part of the law on adverse possession: inconsistent use and ownership are linked, and the ‘best’ conception of ownership is one from which inconsistent use logically follows. It would follow that Mowattwould be wrongly decided.
Katz’s characterization of English ownership seems rushed; English law can accommodate its own ‘robust’ notion of ownership. Therefore, the debate should instead focus on which one of two robust notions of ownership should be preferred. I then explain my preference for Katz’s notion.
I. Reframing the debate: two equally robust notions of ownership
To make the case for a ‘robust’ notion of ownership in English law, consider Honoré’s essay, “Ownership”. When read in conjunction with Hohfeld, Honoré can be understood to advocate for the ‘substantive bundle of rights’ model of ownership. His view suggests that the content of ownership in ‘mature’ legal systems are informed by 11 ‘incidents’, (e.g. the right to possess,) some of which may be ‘absent’. When this model is applied to English land law, the freehold satisfies all incidents. For example, Honoré’s incident of transmissibility is satisfied given the fee is simple and absolute: its heritability endures forever with no restriction on e.g. the sex of the heir to whom it can be passed. Hence, it is possible to conclude that England & Wales can accommodate a ‘robust’ notion of ownership, contrary to Katz’s contention.
Presuming, as I do, that Katz is correct to suggest that ownership and inconsistent use are linked, how does this more precise conception of English ‘ownership’ modify the need for inconsistent use? Very little. If Honoré’s conception of ownership tolerates missing incidents, then it can tolerate the absence of the right to manage. If the right to manage is absent, then the paper owner cannot ‘set an agenda’ for the land, so there is no agenda to be ousted through inconsistent use.
One might argue that ownership absent the right to manage amounts to very little indeed. This criticism would be misplaced: English law tolerates ownership absent the right to manage through e.g. the trust. The trustee is tasked with managing trust property, even though the ‘real owner’ is the beneficiary. Hence, the beneficiary holds assets absent the right to manage them. English law can, therefore, accommodate Honoré’s ‘robust’ notion of ownership.
If this is true, then Katz’s analysis should be refocussed as standoff between ‘agenda-setting’ and ‘bundle of rights’ conceptions of ownership. This more direct discussion is useful for analyzing inconsistent use. ‘Agenda-setting’ ownership requires it, but ‘bundle of rights’ ownership does not.
II. Taking a side: Preferring ‘Anglo-American’ ownership
Here, I suggest that Katz’s conception of ownership is preferable to Honoré’s. Katz’s notion provides for a satisfactory response to a common criticism of inconsistent use and criticisms of her conception do not hold water. On the other hand, Honoré’s conception of ownership suffers from two fatal flaws.
The common criticism of inconsistent use has been made by Hafeez-Baig & English, Lubetsky, and Ziff. They all suggest, broadly that the test problematic because it affords more protection to a developer intending to make future use of the land than a layperson making current use of their land given “few present uses [are] inconsistent with plans to … develop the land in the future.” This common criticism does not follow. Consider, for example, the facts of Graham. The paper owner was a developer who was advised to keep their land vacant for planning permission purposes. It is uncontroversial, therefore, that when the squatter “remained in occupation”until their equity crystallized, the paper owner failed to “maintain agenda-setting authority”over the land and was vulnerable to being ousted. It is therefore false that inconsistent use protects a future developer more than a present owner. As Katz puts it, “[a] developer is forced to pay attention to her holdings and to exercise her authority with respect to them just as much as the owner-occupier is.”
Katz’s conception of ownership has, however, been criticized by Hamill. She suggests that Canadian ownership is “relatively more constrained”than various ‘essentialist’ accounts of ownership of which Katz ‘open-ended’ agenda-setting right is one. She suggests, instead, that ownership’s important elements are “the right to exclude and the right to the primary or historical use of the property.” On one hand, Hamill is clearly correct: the importance of these two elements were stressed obiterin Canadian Pacific Railway v Vancouver (City), (herein, ‘CPR’). The difficulty with her reliance on this particular case is that it concerns regulatory takings. The parties are a private corporation and an arm of the state. Given the applicable parties, the case, and therefore its dicta, do not apply to Katz’s thesis. She never contends that the owner is free to agenda-set without influence from the state. Hence, Hamill’s reliance on CPR leaves something to be desired.
Honoré’s conception has been criticized by Waldron and Penner. For Waldron, Honoré fails to understand that ownership is a contested concept capable of differing, but legitimate, conceptions because“the proper use of [the] term [ownership] involves disputing its content.” Instead, Waldron contends that the most we can say about ownership is that it is organized around a very abstract concept that, “in the case of each object, the individual person whose name is attached to that object is to determine how the object shall be used and by whom”. Penner’s critique is that it is preferable to view ownership as the right of exclusive use, from which the right to alienate follows, because all of Honoré’s incidents collapse into this “single coherent right.” For example, Honoré’s right to capital, (i.e. the power to consume, waste, etc.,) is a particular type of exclusive use.
The question then becomes whether Katz’s conception of ownership is preferable to that of Waldron or Penner. As to Waldron, his view that the ‘owner’ has the final say on the object’s use sounds similar to Katz’s ‘agenda-setting’ view. As to Penner, his focus on exclusion fails to positively define the contentof ownership and is therefore lacking. As Katz puts it, there is a “gap … between the right to exclude and [the owner’s] interest in [a thing]”and this gap “does not say enough about the owner’s position”. Hence Katz’s conception of ownership should be preferred.
Returning to Mowatt, if Katz is correct to suggest that ownership and inconsistent use are linked, (a point which I do not dispute,) and that inconsistent use follows from her conception of ownership, then the case is wrongly decided. The Supreme Court of Canada failed to approve of the inconsistent use requirement and therefore failed to decide this case consistently with the best conception of ownership within Canadian jurisprudence.
3. A model of adverse possession incorporating inconsistent use can better justify the transformation of squatters into owners than other theoretical literature.
Katz’s final suggestion is that inconsistent use justifies the entire doctrine of adverse possession. The doctrine is certainly in need of justification; it is ‘morally paradoxical’. A squatter can obtain an interest in land simply by staying in ‘adverse possession’ for long enough. Some view this as land theft.
Katz takes issue with the American response to this ‘moral paradox’ and, instead, suggests her own. I take issue with Katz’s proposal for reasons I explain below.
I. The American Response to the ‘Moral Paradox’
America’s response to this ‘moral paradox’ is to focus on the relative desert of the squatter when compared to the paper owner. ‘Land theft’ is justified because adverse possession furthers utilitarian ends, (e.g. prevents absentee land ownership.) The focus on relative desert is perhaps best highlighted by the distinction that some American courts’ draw between good faith (e.g. neighbours in a boundary dispute,) and deliberate (e.g. Sam the squatter, above) squatters, the former being more ‘morally deserving’ of an ownership interest.
II. Katz’s Response to the ‘Moral Paradox’
Katz responds that utilitarian justifications have begun to erode, and she proposes an alternative response to this ‘moral paradox’ which does not require recourse to “particularized morality”. She suggests inconsistent use justifies adverse possession because the inconsistent use requirement provides for “social order” in the form of a “hierarchal structure for decision making”which “avoids the potential for conflict among uses where there is no one clearly in charge of an object.” To explain, inconsistent use evidences a challenge to the paper owner’s authority — it necessarily presupposes that only one entity’s agenda be obeyed. Hence, inconsistent use ensures “that there is always someone [and indeed, onlyone person]in charge in the eyes of the law, and thus no destabilizing vacancies.”
III. The Author’s issues with Katz’s Response
In my opinion, the difficulty with Katz’s contention is that registration may already provide the same hierarchal structure which she suggests is provided through inconsistent use. Hence, it is difficult to see what the component adds from a practical standpoint. If inconsistent use is not strictly required to stabilize the adverse possession regime contrary to Katz’s contention, what other reasons could there be for requiring or rejecting it?
Part 4: Policy Reasons for Rejecting Inconsistent Use
One reason for rejecting inconsistent use might be that it creates an arbitrary or capricious distinction between commercial and residential properties. This criticism was made by Sales LJ writing for the Court of Appeal for England & Wales in R (Best) v Chief Land Registrar.
One may initially respond to this criticism by suggesting that England & Wales’ regime is sufficiently different from what the Canadian regime ought to be, as discussed above, so it would be incorrect to ‘import’ the same criticism into Canada, not least because England & Wales does notrequire inconsistent use to succeed as an adverse possessor. The difficulty with this response is that it overlooks the fact that inconsistent use createsthis same distinction between residential and commercial properties. This distinction can be illustrated by recalling Sam the Squatter in Part 1. We’ve already seen that Sam would succeed in adversely possessing a school as their home but would fail if they tried to adversely possess a house. The same would be true if Sam sought, instead, to open a business in the property in which they possessed: they would succeed if the property was used by the paper owner as a house but fail if it was used as a storefront. One can therefore appreciate that the same squatter is treated differently depending on whether their occupation is of a residential or commercial property. This is arbitrary, so Sales LJ’s criticism would seem to apply with equal force to a regime which requires inconsistent use.
A more plausible way to dismiss Sales LJ’s criticism in Bestmight be to respond that it does not apply with equal force in Canada because England & Wales criminalizessquatting in residential premises whereas the same is not true in any of Canada’s provinces. One may then contend that the arbitrariness noted by Sales LJ is particularly unacceptable in England & Wales’ criminal law context due to rule of law concerns but might be better tolerated in a strictly private law context like Sam the Squatter’s adverse possession efforts. This contention does have some merit: for instance, arbitrariness is a reason for striking down criminal statutes but, pessimistically, the length of the chancellor’s foot continues to be a standard by which ‘unconscionability’ can be measured in equity. The difficulty with this response is that Austin and Klimchuk have argued that the problems with arbitrariness apply equally to public and private law. If this is true, then it would follow that the arbitrariness created by inconsistent use as between residential and commercial properties would be lamentable even absent the criminalization of squatting. Hence, one may conclude that there is a prima facie case for rejecting inconsistent use on arbitrariness grounds so that Sales LJ’s remarks in Best apply with equal force in Canada.
Part 5: Conclusion
In this case comment, I have contended that ‘agenda-setting’ ownership is the best conception of ownership when compared to ‘bundle of rights’ ownership. Inconsistent use follows from agenda-setting ownership. If this were the end of the analysis, then one would conclude that Mowatt was incorrectly decided. However, inconsistent use is not necessary to establish a ‘hierarchy’ of individuals whose agenda should be obeyed because registration provides that hierarchy. Furthermore, inconsistent use actually risks creating arbitrary distinctions between property types which is problematic from a rule of law standpoint. It follows from this that Mowatt was correctly decided.
Nelson (City) v Mowatt, 2017 SCC 8,  1 SCR 138
Larissa Katz, “The Moral Paradox of Adverse Possession: Sovereignty and Revolution in Property Law” (2010) 55:1 McGill Law Journal 47
Examples of this include ploughing arable fields, trimming grass, or living in a home, (Powell v McFarlane (1977) 38 P & CR 452 per Slade J.)
Bruce Ziff, Principles of Property Law, 7thed (Toronto: Thomson Reuters) at 167.
Ibid. at 161.
The limitation period can vary between jurisdictions. In British Columbia, the period is 20 years as against private individuals and 60 years as against the Crown for those parties unaffected by s. 28(1) Limitation Act. In the United Kingdom, the period is 12 years if land is unregistered, (see s. 15, Limitation Act 1980,) and 10 years if the land is registered (see Schedule 6, Paragraph 1(1) Land Registration Act 2002.)
See Ziff, supra note 4 at 161.
Ibid. at 171.
See Mowatt, supra note 1 at para 3.
JA Pye (Oxford) v Graham  UKHL 30,  1 AC 419, (herein, ‘Graham’,) at para 45.
Grossman and Lam, “Adverse possession does not require inconsistent use” (2017) 36:5 Legal Alert 33 at 34.
See Ziff, supra note 4 at 161.
See Mowatt, supra note 1 at para 27.
Ibid. at para 21.
See Katz, supra note 2 at 63.
See Mowatt, supra note 1 at para 2.
For examples, see Elliott v Woodstock Agricultural Society, 2008 ONCA 648, 2008 CarswellOnt 5625, at para 13 per Juriansz JA, Ties v Ancaster (Town), 1997 ONCA 1688, 1997 CarswellOnt 2970 at para 2 per Laskin JA, Fletcher v Storoschuk,1981 CarswellOnt 549 at para 8 per Wilson JA.
Skidmore v Parkin, 2002 CarswellOnt 2865, at para26 per Thompson JA, citing Keefer v Arillotta, 1976 CarswellOnt 853, at para 42 per Wilson JA.
I echo the language used in Skidmore, supra note 18.
The notion of ‘ouster’ was first used in the leading UK authority on this point: Leigh v Jack, (1879) 5 Ex. D. 264.
For an explanation of this moral paradox, see Part 3, 3. inf.
See Katz, supra, note 2 at 49 when she notes that “our idea of ownership influences how we answer basic questions about what it takes to succeed as an adverse possessor”; at 52 when she notes that differing “models of adverse possession [rely on] … strikingly different conceptions of ownership and possession”; at 56 when she notes that Slade J’s “decision in Powell … was an early sign of discomfort … with what the inconsistent use test implies about ownership”; and at 56-7 when she notes that a model which does not require inconsistent use “rests on a particular understanding of ownership”.
Ibid. from 52-60, and from 63-72. For completeness’ sake, she contrasts a third model, (viz. the American model) from 60-63. However, this comparison makes a different point (viz. that American jurisprudence struggles with the notion that the squatter obtains a windfall - gratuitous land ownership - out of very little: possession.)
These remarks apply equally to Canadian law. See Ziff, supra note 4 at 76.
Crown Estates Commissioners v Roberts  EWHC 1302 Ch,  2 P. & C.R. 15 at para 7 per Lewison J.
See Graham, supra note 10 cf. Leigh, supra note 21.
See Katz, supra note 2 at 59.
Ibid. at 53, 55.
It is unclear which systems Katz considers to be ‘Anglo-American’, given she fails to specify which countries would be implicated. Surely, she cannot be referencing England & Wales or the United States of America, given she’s juxtaposed both of those regimes to the ‘Anglo-American’ regime currently under discussion. It also seems unlikely that she intends to evoke common-law Canada: it has already been established that the remarks made about England & Wales apply equally to those provinces, (see Ziff, supra note 25). Finally, it seems unlikely that she intends to reference Quebec’s Code Civil: it is trite that the Code Civil is derived from the French Napoleonic Code, which in turn is derived from Roman law, (which itself already accommodates a system of ‘absolute’ ownership, viz. dominium.) Hence, in the author’s opinion, uncertainty abounds.
See Katz, supranote 2 at 57-8, and generally see Larissa Katz, “Exclusion and Exclusivity in Property Law” (2008) Legal Studies Research Paper Series No. 08-02. Available at SSRN: https://ssrn.com/abstract=1126674 or http://dx.doi.org/10.2139/ssrn.1126674
See Katz, supra note 2 at 67.
Ibid. at 57, 59.
Tony Honoré, “Ownership” in A. G. Guest, ed, Oxford Essays in Jurisprudence: A Collaborative Work (England: Oxford University Press, 1961) 107.
J. E. Penner, “The ‘Bundle of Rights’ Picture of Property” (1996) 43 UCLA Law Review 711 from 725-733.
See Honoré, supra note 34 from 113-127 and 109, respectively.
cf. e.g. the fee tail.
For a (very controversial) enunciation of this principle, see Shell UK v Total UK  EWCA Civ 180,  QB 86 at para 132 per Waller LJ. This statement takes for granted that the nature of the beneficial interest is proprietary. This is by no means settled, but space precludes a more fulsome discussion of the issue. Suffice it to say that this proprietary conception has been supported by e.g. J. E. Penner, The Law of Trusts 10thed, (2016) at para 9.7 but seems dubious in light of e.g. Burgess v Wheate (1759) 1 Blackstone W 123.
Mohammud Jaamae Hafeez-Baig & Jordan English, “An inconsistency in the Canadian law of adverse possession? Nelson (City) v Mowatt 2017 SCC 8” (2017) 17:2 Oxford University Commonwealth Law Journal 290
Michael H. Lubetsky, “Adding Epicycles: The Inconsistent Use Test in Adverse Possession Law” (2009) 49 Osgoode Hall Law Review 497 at 524 when he speaks of “[frustrating] non-existent intentions.”
See Ziff, supra note 4 at 172
See Hafeez-Baig & English, supra note 40 at 298.
See Katz, supra, note 2 at 69
See Graham, supra, note 10 at para 12
Ibid. at para 13.
See Katz, supra, note 2 at 69
Sarah E. Hamill, “Common Law Property Theory and Jurisprudence in Canada” (2015) 40:2 Queen’s LJ 679 at 685, 693.
Ibid. from 690-694.
Ibid. from 692-3.
Jeremy Waldron, “What is Private Property?” (1985) 5:3 Oxford Journal of Legal Studies 313 at 335-340.
Ibid. at 339.
See Waldron, supra note 52 at 327-8.
See Penner, supranote 35 at 754.
Ibid. at 759-60.
See Katz, supra, note 31 from 13-14.
See, inter alia, Katz, supra note 2 at 60.
Ibid. at 61.
Ibid. at 50, 62-3.
See Katz, supra note 2 at 51.
Ibid. at 77.
See, for example, Graham, supra note 10 at para 2.
R (Best) v Chief Land Registrar  EWCA Civ 17,  QB 23, (‘Best’) at para 76.
Legal Aid, Sentencing and Punishment of Offenders Act, 2012, c 10, s. 144.
Canada (Attorney General) v Bedford  SCC 72,  3 SCR 1101 at e.g. para 98.
See, for example, Westdeutsche Landesbank Girozentrale v Islington London Borough Council  2 WLR 802,  AC 669 at705 per Lord Browne-Wilkinson. Although, of course, the dicta on ‘unconscionability’ was made in the context of the English institutional constructive trust which clearly does not exist in Canada, the general dicta that “equity operates on the conscience of the owner of the legal interest” has universal application.
Austin and Klimchuk, “Introduction” in Lisa M Austin and Dennis Klimchuk, eds., Private Law and the Rule of Law(Oxford: Oxford University Press, 2014) from 1-14.