The case of Recreational Holdings vs Carl Lazarus and the Registrar of Titles

THE doctrine of adverse possession allows a person who is in possession of land to obtain good title if the paper owner fails to assert his own superior title within the limitation period set out in the Limitation of Actions Act (“LAA”). The LAA prohibits the paper owner from recovering possession of land after the expiration of 12 years from the date on which the right to bring such a claim first arose.

The decision of the Court of Appeal in the case Recreational Holdings (Jamaica) Limited (“RHJL”) v Carl Lazarus and the Registrar of Titles reviewed the law as it relates to adverse possession.

In this case RHJL became the registered proprietor of land known as Windsor Lodge in 2011. This land was purchased by RHJL from Mr Clinton McGann who received a registered title for the property in 1978. Carl Lazarus was the owner of a smaller parcel of land which was adjacent to Windsor Lodge. A registered title for this smaller parcel of land was issued to Lazarus in 1987. An area of land known as the “disputed property” was included in the registered title of both RHJL’s and Lazarus’ land. There was therefore a case of dual registration.

In 2011, RHJL commenced a claim in the Supreme Court seeking the following orders:

(1) that they are the registered proprietor of the disputed property;

(2) for recovery of possession of the disputed property; and

(3) that the Registrar cancel the certificate of title registered in the name of Lazarus and issue a new certificate of title to him excluding the disputed property.

Lazarus also commenced a claim in which he sought a declaration that he had been in open and undisturbed possession of the disputed property in excess of 12 years and that RHJL’s title to such land had been extinguished pursuant to the LAA. The trial judge ruled in favour of Lazarus and held that RHJL’s title to the disputed property had been extinguished by the time RHJL had purchased Windsor Lodge in 2011.

RHJL appealed to the Court of Appeal to determine whether:

1. Lazarus as the registered proprietor, had a lawful title to the disputed property and was therefore precluded from succeeding on a claim for adverse possession; and

2. whether the 12 year statutory period under the LAA could only have started to run against RHJL when it became the registered proprietor of the property in 2011.

The Court of Appeal held:

1. that two elements are necessary to establish possession (a) sufficient degree of physical custody and control (“factual possession”) and (b) an intention to exercise such custody and control on one’s own behalf and for one’s own benefit (“intention to occupy”). The Court of Appeal decided that the important issue in a claim of adverse possession is whether the occupation is without the permission of the owner and not the issue of lawful title;

2. that a person with a lawful title can still make a successful claim in adverse possession;

3. Lazarus did not have a lawful title to the disputed property as his possession of the disputed property was always adverse to McGann’s title whose title pre-dated his. Lazarus could therefore successfully make a claim in adverse possession;

4. that relying on the Registration of Titles Act (“ROTA”) registered land is deemed to be subject to certain unregistered rights such as rights accrued by virtue of the doctrine of adverse possession. The ROTA also provides that a transferee of registered land takes the land subject to all liabilities to which the transferor was subject. Since it was proven that Lazarus had been in open and undisturbed possession of the disputed property for a period in excess of 12 years, he had acquired a right to the said property by way of adverse possession.

5. by the time RHJL had purchased Windsor Lodge in 2011, McGann’s Title to the disputed property had already been extinguished and there was no need for Mr Lazarus to establish a further 12 years of adverse possession against RHJL.

Given the prevalence of similar land occupation, this is no doubt an interesting decision for those claiming title by adverse possession and purchasers who seek to obtain unencumbered title. However, the Court of Appeal’s decision may well be subject to a further appeal to the Judicial Committee of the Privy Council.

Natasha Rickards is an Associate at Myers, Fletcher & Gordon and is a member of the firm’s Property Department. Natasha may be contacted via Natasha.rickards@mfg.com.jm or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.