What is the inconsistent use test for adverse possession of land owned by a municipality?

Ontario, Canada


The following excerpt is from Richard v. Niagara Falls, 2018 ONSC 7389 (CanLII):

I find that the inconsistent use test has particular significance with respect to the third factor in cases in which the disputed land is owned by a municipality and is being held for the use and benefit of the public. In such cases, it has been very difficult for an applicant to prove that the municipality has effectively been excluded from possession. Also, for public policy reasons, the courts have been reluctant to uphold a claim for adverse possession of land that was purchased with public funds for public use. In that respect, see the Teis decision at para. 35, and see Woychyshyn v. Ottawa (City), [2009] O.J. No. 5143, 88 R.P.R. (4th) 155 (ONSC) at para. 13.

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