Today I wish to respond to some of the queries that I have received by e-mail over the last ten months.
The first question relates to adverse possession and reads:
“If you live on a piece of land for ten years without paying rent, would you become owners of the land and house?”
The above question is not an unfamiliar one. In Barbados the question is asked frequently because there are several examples of people occupying land, very often initially in the context of some family arrangement, for several years without paying rent or without there being a demand for rent. Less frequently, cases occur where a person begins to pay rent and the lessor dies and for several years no one comes forward to make a demand for rent.
Acquisition of title by adverse possession is based on two principles. First, property is a relative concept and possession is the evidence of ownership. Possession of land, therefore, raises a presumption of ownership and gives one a title that is superior to any person other than one who can show a better title.
Therefore, if the true owner of a piece of land (i.e. the person who has ownership by way of documents of title) is dispossessed by a trespasser or squatter no one can seek possession against the latter other than the paper owner who will be able to prove a better title against him.
The second principle on which ownership by adverse possession is based is that a person who has a better claim to an estate must assert his claim within an acceptable period from the time when his right accrued.
If he fails to assert his right within the period his title would be extinguished and the trespasser or squatter in possession will acquire his title. In Barbados, the period within which the true owner must assert his rights is ten years.
Put in simple language, the owner of land may lose his title to it if a trespasser or squatter takes over possession of the land and treats it as his own for a period of ten years.
For example, if the squatter in search of land for his chattel house fences a piece of land and moves his chattel house onto the land fully intending to dispossess the true owner, he can acquire a title to the land if the “true owner” does not in some way assert his right to the land within a period of ten years. The title of the adverse possessor cannot be challenged once the statutory ten year period has expired.
It is important to demonstrate that the possession is adverse to the true owner. For example, a person who enters possession on the basis of a licence or some form of family arrangement will not be able to establish a possessory title since the basis of the occupation of the land is the consent of the owner.
It is, therefore, not easy to establish title by adverse possession where the person claiming title is a relative of the paper owner.
A tenant cannot claim adverse possession against his landlord since the tenant would have occupied the premises with the consent of the landlord and therefore, his possession of the property would not have been hostile or an assertion of a claim of right.
To answer the question posed, it depends on the circumstances in which you assume possession of the property. If you enter as a trespasser or a squatter you can claim title by adverse possession. If you have entered with the permission of the owner you cannot.
To establish a claim by adverse possession you must show either:
1. A discontinuance of possession by the “true owner” followed by possession by the adverse possessor; or
2. Dispossession by the adverse possessor. Dispossession occurs where the adverse possessor comes in and drives out the owner; while discontinuance of possession is the abandonment of possession by the owner.
In addition to proving possession, a person claiming title by adverse possession must show an intention to possess the land to the exclusion of all other persons, including the owner.
Whether a person can establish sufficient possession is a question of fact to be determined in each individual case. For sure, a claimant must show a degree of physical control of the land.
• Cecil McCarthy is a Queen’s Counsel.
