Acquiring title by possession

A member of my community occupied a piece of land in the community for more than 20 years. (We will call him 'the farmer'.) The farmer has worked the land by planting fruit trees and cash crops, from which he earns a living. It appears that the property was sold about a year ago, because some persons came and measured it and said that the land will be divided and sold for housing. It is rumoured that the property was actually intended to be a park for the community and should not be sold for housing.

I want to know whether any legal action can be taken at this stage now that the property has been sold. Can the farmer still assert his right over it?

Dear Reader:

There are many gaps in the reader's account, which would need to be filled in, in order for the farmer to receive proper legal advice. For example, he would need to say how he came to occupy the land in the first place? Did he receive permission from the owner to use the land under a licence or a lease? Was a demand ever made for him to vacate the property?

In the absence of answers to those questions, I can state some general principles which may assist the farmer, and a very interesting judgement of the Supreme Court provided useful guidance - Limmoth and Others v Eugster 2003 HCV 0144 (judgment delivered on January 28, 2011):

1. The defendants became the registered owners of several hundred acres of land on May 14, 2002 by purchasing it from the previous owner, George Barber.

2. Each claimant relied on section 3 of the Limitation of Actions Act to say that he/she had been in sole, exclusive, open and undisturbed occupation of separate portions of the land for periods in excess of 12 years. In other words, the claimants contended that they had acquired title by adverse possession.

3. Based on the evidence, none of the claimants had made an application to the Registrar of Titles pursuant to section 85 of the Registration of Titles Act to say that he/she had become the owner of the portion of the property which he/she occupied. This had not been done while George Barber was the owner nor after he had transferred title to the defendants.

4. At trial, the claimants' stated that they were not saying that the defendants had acquired title to the property by fraud. The learned judge, therefore, concluded that there was no challenge to the validity of the defendants' title to the property.

5. The question as to whether the claimants could assert that they had acquired title by adverse possession against the defendants was answered in favour of the defendants because the learned Judge found that "only a period of adverse possession subsequent to a particular registration can be counted against that particular registered proprietor". The fact is that the defendants had not been the registered proprietor of the land for 12 years, so it was not possible to claim that title was acquired by possession against them.

6. Although finding that the claimants had entered into possession without Mr Barber's permission, the learned Judge stated that if the claimants had claimed that they had entered the property as licensees, their claim would still have failed. This is because "a person who is in occupation of land as a licensee cannot begin to obtain a title by adverse possession so long as his licence has not been revoked".

The short answer to the reader's questions is that the farmer may not be able to claim title by adverse possession if the land was recently transferred to a new registered owner. However, for direct legal advice, the farmer should consult an attorney-at-law.

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