Property matters in Court

Last week, the emphasis was on efforts that should be made to avoid conflict among family members over property, as far too many matters end up in court over distribution. This week we would focus on a random family matter, to explain some of the issues on property pertaining to title. These two matters were combined, because they are relatively the same: Roberts v Hamilton et al and Mc Intosh et al v Alexander et al. (No. 194 of 2007 and No. 281 of 2007). I believe that the following issues raised would be of interest to you namely: statutory declaration, possessory title for crown lands and adverse possession.{{more}}

Statutory declarations

Statutory declarations were very popular before the enactment of the Possessory Title Act of 2004. Statutory declaration may be regarded as the forerunner of the possessory title act. Many persons who held land for more than 12 years and who were in control would simply swear to a declaration and file the document with the land registry to indicate ownership. One of the shortcomings of this title is that banks refused to give mortgages on this type of title. This, perhaps, was the greatest incentive for change. According to the law, borne out in a few cases, and particularly in Charles v Holas (GREHCV No. 15 of 1996), exclusive uninterrupted possession of land for a period of 12 years does not vest legal title to the land in the person making the declaration. Since the activation of the possessory title act, titles by declaration have become obsolete and persons have of necessity approached the court for a proper possessory title. There is an incentive too, as persons with the new title could be allowed a mortgage by a bank.

Crown lands

The Possessory Title Act makes provision for crown lands, that is land belonging to the crown. All the rules as for private property apply, but a person must be in occupation for a period of thirty years (30) instead of 12 years. In the above matter, the holders of a crown grant succeeded over the holder of a statutory declaration.

Adverse possession

For all matters pertaining to possessory title there must be adverse possession and the learned judge in the above cases in question, (p.9) points to the effect and meaning of adverse possession given by Halsburys Laws of England. According to the learned authors, “No right of action to recover land accrues unless the land is in possession of some person in whose favour the period of limitation can run. Such possession is called adverse possession. What constitutes such possession is a question of fact and degree; 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.”

The court also pointed to the principles used in the case of Powell v Mc Farlene, ([1977] 38 P&CR 452) which show some features of occupancy in adverse possession. Essentially, when in possession, the person must be in control and that person must have the intention to exercise control. The person must be dealing with the land as an occupying owner, with the intention to possess, not to own.

It must be also noted that a person who has the consent from another to occupy cannot be said to be adversely occupying.

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

E-mail address is: exploringthelaw@yahoo.com