BY CECIL MCCARTHY

RECENTLY, I have been receiving a number of queries concerning the acquisition of title to property by people who are more often than not a relative of a previous owner. Very often the complaint has to do with the fact that someone has started to pay the land taxes and has had the name on the tax bill changed to his name. Over the next few weeks I will consider some issues relating to land.

Since a significant number of problems result from the lack of title deeds either because they have been lost or misplaced or, more commonly, the person seeking title never had any deeds, I will begin by considering one way in which a person may assert title to land. I refer to a possessory title.

Ownership of land is usually acquired by conveyance or by transfer and registration in the case of registered land. In both cases documents are prepared vesting the land in the new owner. In the case of land transferred by conveyance, your title deeds constitute the evidence of ownership; in the case of registered land, the entries on the Land Register are the proof of title.

There is, however, another way in which land may be acquired and that process is called "adverse possession". Acquisition by adverse possession is based on two principles. First, property is a relative concept and possession is the evidence of ownership. Possession of land, therefore, raises a presumption of ownership and gives one a title that is superior to any person other than one who can show a better title.

Therefore, if the true owner of a piece of land (i.e. the person who has ownership by way of documents of title) is dispossessed by a trespasser or squatter no one can seek possession against the latter other than the paper owner, who will be able to prove a better title against him.

The second principle on which ownership by adverse possession is based is that a person who has a better claim to an estate must assert his claim within an acceptable period from the time when his right accrued. If he fails to assert his right within the period, his title would be extinguished and the trespasser or squatter in possession will acquire his title. In Barbados, the period within which the true owner must assert his rights is ten years.

Put in simple language, the owner of land may lose his title to it if a trespasser or squatter takes over possession of the land and treats it as his own for a period of ten years.

For example, if the squatter in search of land for his chattel house fences a piece of land and moves his chattel house onto the land fully intending to dispossess the true owner, he can acquire a title to the land if the "true owner" does not in some way assert his right to the land within a period of ten years. The title of the adverse possessor cannot be challenged once the statutory ten year period has expired.

To establish a claim by adverse possession you must show either:

A discontinuance of possession by the "true owner" followed by possession by the adverse possessor; or

Dispossession by the adverse possessor. Dispossession occurs where the adverse possessor comes in and drives out the owner; while discontinuance of possession is the abandonment of possession by the owner.

In addition to proving possession, a person claiming title by adverse possession must show an intention to possess the land to the exclusion of all other persons including the owner.

Whether a person can establish sufficient possession is a question of fact to be determined in each individual case. For sure, a claimant must show a degree of physical control of the land.

It is also important to demonstrate that the possession is adverse to the true owner. For example, a person who enters possession on the basis of a licence or some form of family arrangement will not be able to establish a possessory title since the basis of the occupation of the land is the consent of the owner. It is, therefore, not easy to establish title by adverse possession where the person claiming title is a relative of the paper owner.

Cecil McCarthy is a Queen's Counsel. Send your letters to: Everyday Law, Nation House, Fontabelle, St Michael. Send your email to cnmcc@caribsurf.com