In last week’s article I mentioned that section 3 of The Land (Title Proceedings) Act permits a person not in possession of title deeds to assert a claim to ownership of property by adverse possession.
I also pointed out that mere occupation of the claimed property for an uninterrupted period of ten years will not automatically entitle the occupier to successfully claim title.
Additionally, the occupier must show that the possession of the property is adverse to the true owner. Therefore, if the occupier had entered into possession on the basis of a licence, or some act of generosity, or some form of family arrangement, he would not be able to establish a possessory title since the foundation of the occupation of the land would have been the consent of the owner.
There was significant reaction to the article, especially the view that a person who had assumed possession by a licence or family arrangement could not claim title by adverse possession.
In 2004, I addressed this topic in the context of the difficulties associated with the old foreclosure suit.
In one of my articles then, I referred to a Barbados High Court case decided in 1978. That case was one which dealt with the issue of family members claiming title to land.
I refer to Greaves vs Barnett and Others.
In that case, a parcel of land was devised (granted by will) 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 said piece of land, namely 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. Before the court hearing, she had lived there for many years, together with her mother until her mother’s death.
The house, which was originally owned by the grandmother, was in fact 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 case of the aunt, she was a mere licensee. It was a case of a mere act of generosity on the part of her mother. Her interest was, therefore, not adverse to that of her mother’s.
In support of his decision the learned judge cited the following words of Lord Denning in the English case of Facchini vs Bryson (1952): “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 no intention to create a tenancy at all.”
In respect of the claim of the defendant’s mother.
Justice Williams said: “As far as Mrs Barnett’s allegedly possessory title is concerned, she is on much weaker ground. She remained living in the house with her mother until her mother’s 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, the learned judge stated this proposition, which is well known by practitioners of land law but not always lawmen.
“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 in fact 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. This equity arose on the basis that he had reconstructed the house with the grandmother’s knowledge, consent and encouragement.
She had also referred to the house in her will 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 had said that it was for the court in each case to determine how the equity was to be satisfied. In Inwards vs Baker, a son, acting on the suggestion of his father, 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, when his father later died, the son found out that the estate in the land was left to other persons. 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.