Understanding the Law
March 18, 2011
Possessory Title revisited

The new form of possessory title was approved in Act No. 38 of 2004, and since that Act, many applications have been granted by the court. Prior to this, there was the Declaration of Possessory title where a person could make a declaration about having a property in his or her possession for twelve or more years and then register and have the document lodged at the land Registry.{{more}} No rigorous scrutiny was taken and persons could have this title without the knowledge of the rightful owner. Subsequent directives have been initiated since the inception of the Act, and this week we take another look.

I must first mention that not every country has possessory title provisions. The main reason for this provision was to provide a service to allow persons to own property which belonged to their foreparents or that they had occupied for many years without a challenge. Many persons in the early days might have bought land and only obtained a receipt with the effect that a title is unavailable to pass on to their children. In other words, no deed was prepared to show title.

However, a proper deed is needed to approach the bank for money to develop a property. It may have been this reason why the lawmakers decided to make it possible for deserving persons to own property belonging to their fore parents or which they occupy without challenge for more than twelve years.

Almost every week, there are notices in the newspapers reminding us that applications for possessory title are being processed. There are persons who complain about the practice, as there is still the chance that some undeserving person will apply and succeed. So you have to scan these notices to make sure that your property is not the subject of an application. There are persons who feel that the procedure is stressful and expensive for land that is rightfully theirs. The newspapers benefit from this procedure, as notices must be posted four times. The newspaper postings cost almost twelve hundred dollars $1200. For the poor person, this is a hardship. The lawyers’ fee is $1000, and some consider this insufficient for the amount of work involved. The land must be surveyed and surveyor’s fees could be $1,500 or more, and this survey plan must not be more than three years old. It must name the person who orders it. If the land was surveyed before, it must be surveyed again so as to get the applicant’s name on the survey plan. Even though you are appointing the surveyor to do a survey plan, you must place the name of your relative overseas who is making the application. Then there must be a valuation that must not be more than three years old.

All the persons adjacent to the land must be informed about the possessory title application, and for this reason, a bailiff must be employed to serve notices on them. Bailiff fees vary, depending on the distance from Kingstown. A person in Georgetown might have to pay up to $120 for this service, while one around Kingstown might pay $20 to $25. Then affidavits of service have to be filed. Affidavits carry filing fees of $15.00 each. The applicant must show compliance with the Act and an affidavit must be done to this end. There is a court hearing. If some one challenges the application, then it becomes more drawn out. The end product is a deed that could be accepted by banks as collateral for a mortgage. The procedure could last for more than one year. A possessory title is for deserving persons, and not for imposters.

Ada Johnson is a solicitor and barrister-at-law.

E-mail address is: exploringthelaw@yahoo.com