IN LAST WEEK’S ARTICLE I referred to the case of Bisnauth versus Shewprashad [2009] CCJ8. That case was an appeal from the Court of Appeal of Guyana which raises issues concerning the law of adverse possession.
In Bisnauth v Shewprashad, Lackram Bisnauth (hereinafter Lackram) sought to obtain ownership by prescription of four lots of land by filing a petition for a declaration of title in December 1998. He died in January 2000.
The respondents, Ramanand Shewprasshad and Rajwaltie Bisnauth, entered an objection to the petition and after a contested hearing it was declared that the estate of Lackram had acquired absolute title to the said lots of land and that the executor of Lackram’s estate was entitled to a conveyance thereof. The material facts of the case were as follows:
“In 1957 Lackram was allowed into possession by his mother, Janki Hanoman, the title-holder of part of lot 40 on which he constructed a wooden house. He occupied the house with his wife and their eight children. In or about 1960 he entered into possession of lots 37, 38 and 39 with his mother’s permission. It was established that between 1957 and 1981 Lackram paid his mother yearly an amount of $50 when he occupied part of lot 40 and $100 yearly when he extended his occupation to lots 37, 38 and 39.
Titles to the lands were transferred to the respondents in 1996 when Lackram allegedly refused to buy them.
In 1981 Lackram took his wife and the majority of his children to the USA and on a return visit took his mother with him in 1982. His three sons remained in the house until 1983 when he returned for them. Thereafter his niece, Venus, occupied the house.
On one of his periodic visits to Guyana, Lackram met a lady and they lived together for four months in 1984 in his house on lot 40. When he left she continued to reside there until 1994, during which time he had returned on several occasions and stayed with her. In 1996 the house constructed by Lackram was demolished and replaced by another house which he bought.
He continued to cohabit with his lady friend in the new house until 1998.
He died in the USA in 2000.
In arriving at its decision, the Caribbean Court of Justice considered two questions:
First, was there any intention by Lackram and his mother to enter into legal relations between 1957 and 1981?
The court held that there was no intention between Lackram and his mother to create legal relations and therefore there was no tenancy between 1957 and 1981.
The Court’s view is set out mainly in paragraphs 9 to 11 of the judgment. Constraints of space permit me to only set out paragraphs 10 and 11 which read in part:
[10] “However, the test of exclusive possession is not determinative of a tenancy even where it is coupled with the payment of rent if there is not clear intention by the parties to create legal relations. In Romany v Romany, Georges, J.A. in the Court of Appeal of Trinidad and Tobago, had this to say:
“Recent authority makes it clear that in family situations, where one member helps another in a period of difficulty over accommodation there is usually no intention to create legal relationships, so that there can be no tenancy at will but merely a licence.”
Similar sentiments were expressed by Lord Denning in Isaac v Hotel de Paris Ltd.’ [FN3] who found that: “the circumstances and conduct of the parties show that all that was intended was that the defendant should have a personal privilege of running a night bar on the premises with no interest in the land at all.”
[11] By analogous reasoning it does appear that Lackram, the eldest son of Janki, was allowed to construct a house on part of lot 40 for himself and family after he was married as a personal privilege which incurred to transfer of an interest in the land. Indeed, the familial relationship which Lackram never disclosed in his petition raises a presumption of an intention not to create legal relations.”
The second issue considered by the court was whether Lackram continued in possession as licensee with his mother’s expressed or implied consent after 1981. If not, was he in adverse possession to her title between 1982 to 1999?
The court, in answering the above questions, observed:
“Applying the law to the facts established in evidence, this court has determined that between 1982 and 1999 Lackram was not in adverse possession for the prescribed period or at all.
He never alleged in his petition that he was ever in sole or undisturbed possession of the lands, he was never in a position to establish of the court that such possession was uninterrupted for the prescribed period, especially between 1982 and 1996 when he was still residing in the USA.
Further, even assuming, but not conceding, that he was in exclusive continuous possession of the lands for a period in excess of 12 years, such possession was referable to the implied licence and continued consent of [his mother] in the absence of evidence to the contrary.
• Cecil McCarthy is a Queen’s Counsel. Send your letters to Everyday Law, Nation House, Fontabelle, St Michael.
