A few weeks ago I revisited the issue of adverse possession in answer to a query that I received by e-mail.
The recent publication of the story of the Rastafarian family’s reliance on the doctrine of adverse possession in its determination to continue to occupy land at Fort George Heights has re-ignited the interest of readers and more queries have been directed to me.
One example is: how do you determine the extent of the land that is obtained by adverse possession, where the land is not fenced?
The determination of the ownership of land in Barbados presents several challenges. Title deeds are often not available; the facts on which ownership is based are often disputed; and the perception that you automatically become the owner of land by being able to prove occupation of the same for ten years or more are all matters that present challenges to the lawyers and judges alike.
In recent times the issue of adverse possession has engaged the attention of the highest court in England; the Caribbean Court of Justice; and, only last year, our own Court of Appeal.
Needless to say first instance decisions abound as various jurisdictions in the common law world attempt to come to grips with problems that arise from a doctrine which became a part of the land law of those countries that inherited their legal systems from England.
I propose to look at the doctrine through the cases and in this regard I want to begin by referring to the recent unreported decision of the Barbados Court of Appeal in a case called Browne vs Moore-Griffith Et Al (2012) in which the Court of Appeal, in a judgment delivered by Justice Sandra Mason, took the opportunity to briefly describe the legal basis of the doctrine of adverse possession.
I quote from paragraph 33 of the judgement of the Court.
“[33] A simple definition of adverse possession is possession in opposition to the true owner and is an ouster of the true owner. The Limitation Of Actions Act, Cap. 231 (the act) provides the legal basis on which a claim by the true owner is made whenever the circumstances surrounding the possession of the stranger for ten years are found to be sufficient to manifest incompatibility with the title of the true owner. In relation to the limitation of actions to recover land, section 25(1) of the act which prescribes the period as 10 years, states:
“25(1) Subject to subsection (2) no action shall be brought by any person to recover land after the expiration of 10 years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, that person”.
In relation to an action to claim by adverse possession, section 31 (1) provides:
“No right of action to recover land shall be treated as accruing unless the land is in the possession of some person in whose favour the period of limitation can run, that is to say, the land is in “adverse possession”, and when under this act any right of action to recover land is treated as accruing on a certain date and no person is in adverse possession on that date, the right of action shall not be treated as accruing until adverse possession is taken of the land”.
and further by subsection (4):
“In determining whether a person occupying land is in adverse possession of that land, it may not be assumed by implication of law that his occupation is by permission of the person entitled to the land merely because the occupation of the land is not inconsistent with the present or future enjoyment of the land by the person entitled to the land”.
[34] Sampson Owusu in Commonwealth Caribbean Land Law at p. 267 articulated the doctrine relating to adverse possession in the following terms:
“Title to land can be acquired by appropriating a piece of land of another person and remaining in undisturbed possession of it for a period prescribed by statute without acknowledging the title of the true owner. If the true owner fails within the prescribed time to assert his title to his land which is wrongfully possessed by the stranger, his title to the land will be extinguished by operation of the statute. The stranger’s possession ripens into a valid title to the land if his possession is adverse to the right of the true owner.”
[35] A summary of what constitutes adverse possession is to be found in Halsbury’s Law of England, Fifth Edition (2008) Volume 68 at paragraph 1078 as follows:
“What constitutes adverse possession is a question of fact and decree and depends on all the circumstances of each case, in particular the nature of the land and the manner in which land of that nature is continually used; there is no general principle that, to establish possession of an area of land, the claimant must show that he made physical use of the whole of it.
However, for the claimant’s possession of the land to be adverse, so as to start time running against the owner, the factual possession should be sufficiently exclusive and the claimant should have intended to take possession on his own behalf and for his own benefit. Where the occupier’s possession of the land is by permission of the owner, that possession is never adverse if it is enjoyed under a lawful title”.
Next week I will continue to discuss the case of Browne vs Moore-Griffith et al.
• Cecil McCarthy is a Queen’s Counsel.
