Thu | Aug 24, 2017

Laws of Eve | Landowners: Beware of adverse possession

Published:Monday | August 8, 2016 | 8:00 AM

Adverse possession is a vexed issue for all registered property owners in Jamaica, because it means that someone in possession of your property could become the owner of that property if you are not careful about protecting your rights.

Over the years, there have been several Privy Council decisions that have interpreted aspects of the Registration of Titles Act that relate to adverse possession. If cases such as Chisholm v Hall and Pottinger v Raffone were not adequate to emphasise the legitimacy of possessor rights, the Privy Council's most recent decision in an appeal from Jamaica - Recreational Holdings 1 (Jamaica) Ltd v Lazarus [2016] UKPC 22 - has reinforced the point.

The subject property in that case is nine acres of a much larger parcel of land known as Windsor Lodge, that was first registered under the Registration of Titles Act in 1978 with Clinton McGann as owner.

In 1985, Lazarus purchased 27 acres of land, which happened to include the nine acres of land in issue. The registration of the nine acres of land on two separate titles was only discovered in 1999; so for more than 12 years, Lazarus acted as the owner of the property.

Recreational Holdings Limited ('RHL') became immersed in the matter after purchasing Windsor Lodge (including the nine acres) from McGann without knowing of the issues regarding the true ownership of the nine acres. After RHL fenced the property, legal actions were filed by RHL and Lazarus in 2011, with Lazarus asserting that he had acquired title to nine acres of the property by adverse possession since 1986. RHL relied on the certificate of title it had acquired from McGann.

The Privy Council did not hesitate to rule in favour of Lazarus. Perhaps the most critical findings are as follows:

1. Although a certificate of title provides conclusive proof of ownership of property, a vendor whose title has been extinguished by adverse possession cannot pass a good title to a purchaser. There remains nothing for the purchaser to receive.

2. A purchaser who is ignorant that there was someone in possession who might have acquired title by adverse possession cannot trump the possessor's title.

 

DIFFICULT OUTCOME

 

The fact that Lazarus had not taken steps to make an application to the Registrar of Titles to obtain title by adverse possession, after being in undisturbed possession of the property for 12 years, did not affect his rights. This is a difficult outcome to accept, as it means that the rights of a registered owner can be extinguished even if a person in possession sits on his adverse possession rights.

In a country in which many persons emigrate after acquiring property, the question must be asked as to whether our legislators intend to allow registered owners of property to remain exposed to the risk of losing their properties to squatters. Given the surest state of the law, property owners need to be vigilant and ensure that, in their absence, someone is assigned or asked to take charge to ensure that the properties do not remain idle and open to occupation by squatters.

• Sherry Ann McGregor is a partner and mediator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.