IN THIS WEEK’S ARTICLE, I continue to consider some cases decided by the courts concerning adverse possession – the process by which a person who is not the legal owner of the land can become the legal owner by possessing the land for a specified period of time.
As stated in previous articles, in Barbados actions for the recovery of land by any person are statute-barred after ten years from the date the right of action accrued.
An issue that sometimes arises is whether the claimant can show sufficient possession, in fact, since there must be an appropriate degree of physical control of the land.
This issue arose in the English case of Buckingham County Council vs Moran (1990) where the material facts were that the defendant had acquired complete and exclusive physical control of the disputed area of land.
He had secured a complete enclosure of the plot and had annexed it to his property Dolphin Place. They had incorporated it into the garden of Dolphin Place.
The court held that the defendant had plainly acquired factual possession of the land by October 1983.
The other case which I will discuss is a local case, Adrian Edwards vs Gwendolyn Braithwaite et al (1978), which considered the question of whether a licensee could acquire title by adverse possession.
The claimant in 1939 at the request of his mother moved his chattel house onto her land.
After his mother died later that year the claimant’s father, who also lived on the land, permitted the claimant to continue to live on the land. He never bothered and never requested him to pay rent.
The claimant never made any contribution to taxes but from time to time planted fruit trees and cultivated a kitchen garden on a portion of the land near his house. He also erected a fence around the house.
In 1962 the claimant’s father died. The claimant continued in possession and in 1974 filed a claim for a possessory title in response to a foreclosure suit that was instituted by a person who had the property conveyed to her by the heir at law to the estate of the claimant’s mother.
It turned out that the heir at law had no documentary title and therefore foreclosure proceedings were commenced to rectify this.
The court accepted that, according to the law, when a person is in occupation of land by leave or licence of the owner, he cannot acquire a possessory title by virtue of adverse possession. However, if it could be shown that the claimant was a tenant at will he could acquire a possessory title.
In determining the issue of whether the claimant’s occupation of the land was under a tenancy at will, or a licence, the court adopted the following words of Lord Roskill in Heslop vs Burns (1974): “The law to be applied in these cases is, as I think, now clear. Stamp L.J has already referred to the decision of the court in Cobb vs Lane. The conclusion of the court is accurately stated in the headnote which I read: “The fact of the exclusive occupation of property for an indefinite period is no longer inconsistent with the occupier being a licensee and not a tenant at will.
“Whether or not a relationship of landlord and tenant has been created depends on the intention of the parties, and in ascertaining that intention the court must consider the circumstances in which the person claiming to be a tenant at will went into occupation and whether the conduct of the parties shows that the occupier was intended to have an interest in the land or merely a personal privilege without any such interest.”
The court continued: “Neither learned counsel has challenged that that headnote correctly stated the effect of the decision.
“But it was said on behalf of the plaintiffs – correctly, as I think – that it should be added to in two respects, namely, that a licence will be more readily inferred than a tenancy at will first where the advantage given to the suggested ‘tenant’ is obviously intended to be personal to him, and secondly, following what Denning L.J. subsequently pointed out in Facchini vs Bryson (1 TIR 1386), where 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.
“On the evidence before me, I find that when the claimant went into occupation of the land it was nothing more than a family arrangement.
I also find that on the death of the claimant’s mother he continued in occupation by family arrangement during the lifetime of his father.
“In view of these findings, having regard to the conduct of the heir at law in not interfering with the claimant, after his father’s death and in the absence of any evidence to indicate an intention to create a relationship of landlord and tenant as between the heir at law and the claimant, the inference I make is that throughout the period of his occupation the claimant was a licensee.
“For reasons which I have stated above the claimant does not acquire a possessory title to the land occupied by him by virtue of the Limitation And Prescription Act.”
• Cecil McCarthy is a Queen’s Counsel. Send your letters to Everyday Law, Nation House, Fontabelle, St Michael. Send your email to cnmcc@caribsurf.com.