Principles of owning land
By Cecil McCarthy | Wed, March 27, 2013 - 12:01 AM
IN LAST WEEK’S article I quoted extensively from the Court of Appeal’s decision in the local case of Browne vs Moore-Griffith et al in which the court considered the legal basis of the doctrine of adverse possession.
In Browne vs Moore-Griffith et al, the respondents were the successors in title to their father’s estate. Their father was by a conveyance in his favour made the legal owner of the land.
He subsequently died, and the disputed property was transferred to the respondents by way of an assent from the personal representative of the estate. The respondents were, therefore established to be the “paper owners”.
The appellant was claiming that he had displaced the respondents having occupied the property for more than ten years and over that time had constructed several structures on the land without objection from anyone.
The appellant was contending that more than ten years had elapsed since a right of action would have accrued in favour of the respondents and that the title of the paper owners was therefore extinguished since he had occupied the land for more thanten years.
The appellant had given evidence that he had carried out certain activities on the disputed land which established the fact of his possession, including the planting of trees, the cultivation of land and the carrying on of a lumber yard.
The finding of the trial judge was that the appellant was unable to establish that the above-mentioned activities were carried out on the lands owned by the respondents and, therefore, on the factual issue of possession of the land the appellant’s case could not be established.
Where it was established that a structure was erected on the disputed land, it was found that it was not erected for the required statutory period.
On the factual issues therefore the claim of the appellants could not succeed.
However, the case gave the Court of Appeal an opportunity to consider the legal basis of the doctrine of adverse possession and also to consider the relevant principles developed by the common law to establish sufficient adverse possession.
The Court adopted the following principles as set out by Slade J in the English case of Powell vs McFarlane (1979):
37 “(1) In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prima facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title as claiming through the paper owner.
(2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (“animus possidendi”).
(3) Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time.
The question of what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed.
Whether or not acts of possession done on parts of an area establish title to the whole area must, however, be a matter of degree. It is impossible to generalize with any precision as to what acts will or will not suffice to evidence factual possession.
Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no one else has done so.
(4) The animus possidendi, which is also necessary to constitute possession, was defined by Lindley MR in Littledale vs Liverpool College (1990) 1 Ch. 19., 23 CA (a case involving an alleged adverse possession) as ‘the intention of excluding the owner as well as other people’. This concept is to some extent an artificial one, because in the ordinary case the squatter on property such as agricultural land will realize that, at least until he acquires a statutory title by long possession and thus can invoke the processes of the law to exclude the owner with the paper title, he will not for practical purposes be in a position to exclude him.
What is really meant, in my judgment, is that the animus possidendi involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow.”
• Cecil McCarthy is a Queen’s Counsel. Send your letters to Everyday Law, Nation House, Fontabelle, St Michael. Send your email to firstname.lastname@example.org.
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