Business

Adverse possession

Legal Notes

with Natalie Farrell Ross

Wednesday, April 07, 2010    

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The doctrine of Adverse Possession operates so as to allow a person who is in possession of land as a mere squatter to obtain a good title if the true owner fails to assert his own superior title within the limitation period set out in the Limitation of Actions Act. This Act prohibits persons from bringing actions to recover land after the expiration of twelve years from the date on which the right to bring such a claim first arose. The effect of the prohibition is that, on the expiration of the twelve-year period, the true owner is barred from asserting his right against the person in adverse possession. The Act applies to both registered and unregistered land.

The recent Privy Council case of Wills v Wills dealt with the issue of adverse possession as it related to registered land. The case was unusual in that it involved property owned by two joint tenants (a husband and wife) and the question that the court had to determine was whether one joint owner (the husband, in this case) had acquired a title by adverse possession from the other joint owner (his first wife).

The facts of the case revealed that there had been a break-down of the marital relationship between the parties; they had lived apart for over 8 years, the wife was abroad for a large portion of that time; the husband continued in physical occupation of the property renting a portion of it though not accounting to his wife for the rental income received; and the wife was aware of the rental arrangement.

The court held on these facts that the husband, who had died, was solely and exclusively entitled to the property and that his new wife, in her capacity as personal representative of his estate, was similarly entitled.

In coming to its decision, the Privy Council relied heavily on the following facts:

o The husband and his first wife had lived apart for a number of years

o The first wife did not leave behind any of her possessions at the premises

o The husband physically occupied the property along with a female companion and they both managed and rented part of the property.

o No part of the rental income received was ever paid over to the first wife.

o The first wife never physically occupied or visited the property for over 15 years even though she had visited Jamaica.

Their Lordships were very careful to point out that the case turned on its particular facts.

Nonetheless, co-owners who are not in actual physical possession of their property and are not involved in any aspect of the management of the property, may, depending on the particular circumstances involved, need to beware of such claims being brought by the other co-owner/s who may be in actual physical occupation.

Natalie Farrell Ross is a Partner at Myers Fletcher & Gordon and a member of the Firm's Property Department. Natalie may be contacted at natalie.ross@mfg.com.jm or through www.myersfletcher.com

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