Understanding the Law
December 30, 2011
Possessory Title – 4

Last week we looked at two cases pertaining to possessory title. This week we will examine another case that was determined under the Act. It was determined in the favor of the paper titleholder. This was in the matter of Browne v Adams and others (No. 62 of 2008). Let me remind you that there must be adverse possession for at least twelve years.{{more}}

No. 62 of 2008

In this matter the applicant applied for possessory title for lands situated at Campbell in Union Island under the Possessory titles Act No 38 of 2004. The notices were posted in the newspaper, in the Magistrate’s court and the High Court Registry, as required by the law.

The Respondents responded to the notices and filed entries of appearance challenging the application under the same Act. As required, after the entry of application, such person (or persons) must file a written claim stating the name of person who has title and give a statement of the nature of the claim. The Respondent’s contention was whether the Declaration of Possessory title was valid and whether there was indeed 12 years of exclusive adverse possession.

The Applicant’s case

In his written affidavit, the applicant claimed that his mother bought the land since 1945 but that no deed of conveyance was executed. A wall structure was erected on the land and she lived on the land before moving to St. Vincent to live. He came into possession of the land in 1960 when his mother gave the land to him. In his oral testimony, he, however, claimed that it was given to him in 1948. Since there was no paper title, a Declaration of possessory title was executed in 1995. He paid no taxes but he received the rent and the profits from the land. A cousin was allowed to cultivate the land and he also gave permission to one of the respondents to keep animals on the land. He visited every two years. In cross- examination, it came out that he lived in New York and that there was no actual uninterrupted possession. He had not paid the taxes for the land. His sister’s version was different as to the acquisition of the land. In her affidavit, she claimed that the grandmother of the applicant’s mother gave her grand daughter the land.

The Respondent’s case

The First Respondent represented Sea View Development and held paper title No. 9 of 1974, which showed root of title from Deed No. 26 of 1946. Her affidavit showed that her husband as governing director of Sea View Development had been in exclusive possession having bought the land in 1974. After his death, she took control and visited the land from time to time. She did not see any structure on the land on earlier visits. The land was covered with shrubs. She sold part of the land to Government and the second respondent had approached her to buy part of the land. On a later visit in 2008, she saw a structure and part of the land was enclosed. She heard that the second respondent had enclosed it. She reported the information to her lawyer and when the notice for possessory title was given in the newspaper, she consulted her lawyer about opposing it.

The paper titleholder, the First Respondent, succeeded. There is also a lesson to be learnt from this case. If you own lands, always check the possessory title notices in the newspaper. Visit your property and maintain some presence.

I hope that your Christmas was wonderful and I wish that you would have a healthy and prosperous New Year.

Ada Johnson is a solicitor and barrister-at-law.
E-mail address is: exploringthelaw@yahoo.com