Wed | Aug 23, 2017

Laws of Eve | Adverse possession is not only an issue in Jamaica

Published:Monday | December 5, 2016 | 12:00 AM

The decision delivered by the Privy Council on November 21, 2016 in the case of Smith (Personal representative of Hugh Smith (deceased) and Others v Molyneaux[2016] UKPC 35, confirms that the issues with which we contend in Jamaica in relation to adverse possession claims are alive and well in other jurisdictions.

Smith's case concerned an appeal from the Court of Appeal of the Eastern Caribbean Supreme Court (British Virgin Islands) which considered "whether the Smiths gave permission to Mr Molyneaux to occupy the Property so he could not, as he claims, acquire a squatter's title by adverse possession".

The background to the case and ownership of the property, dated back to 1920 when Alexander Smith purchased it and Victoria Cameron, who was in possession of it at the time of purchase, was given permission to remain there under an informal agreement. By virtue of that agreement, Victoria Cameron was allowed to occupy some shacks on the property, one of which was her bedroom.

 

SERVED NOTICE

 

Molyneaux went on to the property in 1956, married Victoria in 1963, and they lived together in the shack. When Victoria died in 1992, Molyneaux remained on the property. In 2006 and 2007, Molyneaux was served with notices to quit by the Smiths, but refused to leave, and relied on Section 135 (1) of the Land Registration Act, which states that "The ownership of land may be acquired by peaceable, open, and uninterrupted possession without the permission of any person lawfully entitled to such possession for a period of 20 years."

In explaining the workings of the act, it is important to note that, "The registered owner cannot, however, allow 20 years to elapse before interrupting the possession of an occupier, because under Section 6(3) of the Limitation Act, his right of action is barred after 12 years from the date on which the right of action accrues to him. Under Section 7(1) of the Limitation Act, the right of action accrues to him on the date on which he is dispossessed."

The central issue in this case concerned whether the Smiths had given Molyneaux permission to remain on the property after Victoria's death. The resolution of that issue involved an assessment of the evidence and the credibility of the witnesses. On the one hand, the Smiths' evidence was that there were several meetings with Molyneaux after Victoria's death during which permission for him to remain on the property was discussed. On the other hand, Molyneaux denied having had those conversations.

 

INFORMAL ARRANGEMENT

 

The informal arrangement between the Smiths and Victoria impacted on the outcome, because the trial judge determined that Molyneaux was in the same position as his late wife. That was one of the several reasons the Privy Council found that the trial judge had given in support of his findings that Molyneaux occupied the property after Victoria's death with the Smiths' permission. Further, "the Smiths had taken positive, overt steps to ensure [Mr Molyneaux] knew about their plans for development and the fact that he would have to move then."

One important point that was made in the judgment was that permission to occupy the property "by inference from the fact that Mr Molyneaux was told that he would have to leave when the Smiths wanted to develop the property." It was clearly found that, "the Court of Appeal fell into error in holding that Mr Molyneaux had to acknowledge any permission given to him by the Smiths."

In the end, the Smiths retained ownership of the property, so Molyneaux did not acquire title by adverse possession.

• 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.