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Adding Epicycles: The Inconsistent Use Test In Adverse Possession Law, Michael H. Lubetsky

Osgoode Hall Law Journal

The common law courts in Ontario developed the Inconsistent Use Test (IUT) to assess claims of adverse possession. The IUT, however, often produces counter-intuitive results, which has led other jurisdictions to reject it and caused the Ontario courts to craft numerous exceptions and qualifications to the test that have left the state of the law on adverse possession very unclear. This article argues that the IUT actually represents an unconscious attempt by the Ontario judiciary to develop a functional equivalent to the civil law principle of "interversion," currently found in article 923 of the Civil Code of Quebec (CCO). It …