Sun | Dec 4, 2016

Guidance on adverse possession in Ja

Published:Monday | November 17, 2014 | 12:00 AM

In the case of Recreational Holdings Jamaica Limited vs Carl Lazarus and The Registrar of Titles [2014] JMCA Civ 34, the Jamaican Court of Appeal provided some useful guidance in relation to the controversial and often confusing issues surrounding adverse possession.

When a person claims that he has acquired title by adverse possession, he is contending that he has been in sole, exclusive, open and undisturbed occupation of that land for a period in excess of 12 years in reliance on Section 3 of the Limitation of Actions Act. While there have been many important cases on the topic over the years, the comprehensive review of the law that the Court of Appeal undertook in this judgment could make it the perfect starting point when conducting research in this area.

Below are some of the important extracts from the judgment:

1. With reference to the Privy Council judgment in the case of Wills vs Wills (that relied on JA Pye (Oxford) Ltd and Another vs Graham and Another), two elements are necessary to establish adverse possession, physical custody or control of the property and the intention to exercise that custody and control on one's own behalf and for one's own benefit. Therefore, the fact of being physically in possession of property for more than 12 years is not enough.

2. The only intention the person claiming title by adverse possession must prove is "the intention to occupy and use the land as one's own" (Pye vs Graham). It is not necessary to show that there was deliberate intention to exclude the owner of the property.

3. A person will not acquire title by adverse possession if the occupation of the property is based on a licence granted by the lawful owner of the property, and it has not expired. Likewise, if the occupation of the property is with the consent of the lawful owner, it cannot be adverse.

4. Even a joint owner of property, who would have entered property under a lawful title could claim title by adverse possession, as in the case of Wills v Wills. The important issue is therefore not the existence of lawful title, but whether the occupation is without the permission of the owner.

5. Citing the arguments of counsel for the first respondent, the court accepted that "adverse possession cannot be claimed by a person whose possession was obtained and continued by virtue of the consent, grant or otherwise from the true owner whom he claims to have dispossessed".

6. In order to ground a claim for title by adverse possession, a squatter "must be (i) inconsistent with and in denial of the title of the true owner; and (ii) such that the owner is entitled to recover possession against the squatter.

In short, the central issue is not how you came to be in possession of the land. Rather, the person making a claim to title by adverse possession must prove that he remained in possession of land for a period of at least 12 years, using it as his own, without the permission of the lawful owner.

There is another important aspect of the judgment which I will consider in next week's article.