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EVERYDAY LAW: When ‘paper’ is not enough

Cecil McCarthy, [email protected]

EVERYDAY LAW: When ‘paper’ is not enough

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LAST WEEK I received a very short email which read: “If a person lived on family land for 66 years, can the person whose name is on the conveyance ask them to leave?”

If this is a factual situation, I would strongly recommend engaging a lawyer’s services. The question raises an issue that arises fairly frequently.

A person has property conveyed or devised (granted by will) to them but there are long-standing occupants of the property who feel that they also have rights of possession or ownership based on the particular circumstances of their occupation. Depending on the circumstances, some very technical issues of law can arise.

One way in which a paper owner may be displaced is by the doctrine of adverse possession. This occurs where a person assumes possession of the land of another and occupies that land continuously for at least ten years.

One factor that can prevent acquiring title by adverse possession is occupation under a licence or family arrangement. In most cases where a relative occupies property, it will be by consent of the owner or by some form of family arrangement.

A Barbadian case that highlights some of the issues than can arise is the case of Greaves vs Barnett et al (1978 Barbados High Court):

A parcel of land was devised by a grandmother to her grandson “for his absolute use and benefit”. The grandson (the defendant) sought to have the land titled and commenced foreclosure proceedings. However, two other persons claimed title to the land – the defendant’s mother and his aunt. The disputed land was for a very long time under the possession and control of the defendant’s grandmother.

The aunt was permitted to place a chattel house on the land and live there since an incident had occurred at her former residence. It was therefore an act of generosity on the part of the grandmother. The defendant’s mother, on the other hand, lived in a wall house on the said land, living there with her mother until her mother’s death for many years before the court hearing. The house, originally owned by the grandmother, had been reconstructed by the defendant’s mother’s husband. On this basis she therefore claimed an interest in equity in the house.

The case was heard before Mr Justice Williams [later to become Chief Justice] and was disposed of in the following way.

It was held that neither the mother nor the aunt could claim a possessory title. In the aunt’s case, she was a mere licensee, the beneficiary of her mother’s generosity. Her interest was, therefore, not adverse to that of her mother’s.

In support of his decision the learned judge cited, among other cases, Lord Denning’s words in the English case of Facchini vs Bryson:

“In all the cases where the occupier has been held to be a licensee, there has been something in the circumstances, such as a family arrangement, an act of friendship or generosity, or such like, to negative any intention to create a tenancy. In such circumstances it would be obviously unjust to saddle the owner with a tenancy, with all the momentous consequences that that entails nowadays, when there was not intention to create a tenancy at all.”

Concerning the claim of the defendant’s mother, Justice Williams said: As far as Mrs Barnetts allegedly possessory title is concerned, she is on much weaker ground. She remained living in the house with her mother until her mothers death. Up to then she could not be considered as having possession adverse to her mother. Her mother was in possession and she was her mother’s guest. She was living in the house with the permission of her mother. Her mother died in 1973 and it is now 1978. That disposes of Mrs Barnett’s claim to a title through adverse possession.”

In considering whether the defendant’s mother had a claim, he observed: “The general rule is that what is affixed to land is part of the land so that the ownership of a building constructed on land would follow the ownership of the land on which the building is constructed.”

Since the building was constructed on land owned by the grandmother, it followed that in law it belonged to her.

However, the court held that based on the principles of what is often referred to as equitable estoppel, an equity arose in favour of Mrs Barnett’s husband, because he had reconstructed the house with the grandmother’s knowledge, consent and encouragement. Her will had also referred to the house as “being the property of Linley Barnett”. Based on the principles outlined in the English case of Inwards vs Baker (1965), the court took the view that Mr Barnett’s widow was entitled to “remain in the house as long as she desires to use it as her home.”

In Inwards vs Baker, Lord Denning said that the court had in each case to determine how the equity was to be satisfied. In that case, a son, acting on his father’s suggestion, built a bungalow on his father’s land (partly at his own expense). Thereafter the bungalow was occupied by the son in the belief that he would be able to remain there for his lifetime. However, on his father’s death, the son discovered that the estate in the land was left to others. The Court of Appeal held that the son had a licence entitling him to remain in the property as long as he wished, because he had altered his position to his detriment on a belief induced by his father’s conduct.

This case demonstrates that there are circumstances in which a licensee may be able to resist a claim for recovery possession. However, the facts must be considered very carefully to determine whether there are any factors that provide a defence to a claim for recovery of possession.

The short facts given in the email do not permit an answer to the specific situation but it ought to be clear that the length of occupation, without more, will not be enough in a particular case to permit the true owner from evicting the person in possession.

Cecil McCarthy is a Queen’s Counsel. Send your letters to Everyday Law, Nation House, Fontabelle, St Michael. Send your email to [email protected]