Adverse Possession – becoming the owner of land by squatting on another’s property.

Adverse Possession is the occupation of land without permission from the title owner.
Where a person squats on another’s land, and treats it as his own for twelve (12) years (in Jamaica), he becomes eligible to apply to the courts, asking that ownership be vested in him and an order for title of said land to be issued in his own name.
Attorneys will tell you that the Law in every situation requires proof, all statements and or assertions must be supported by some authority and so the best way I find, to explain a principle or area of law is to use a decided case.
In this instance we will look at the seminal (UK) case on the topic, J A Pye Ltd and another v Graham and Another [2002] UKHL30 (Pye v Graham), I will include the year in the facts to give an idea of how the court calculates time in these situations. I will also put the facts in bullet form so that they are easier to digest.

FACTS
J A Pye (hereinafter referred to as Pye) was the Title Owner of a large property in the UK, the Graham family were the squatters, (hereinafter referred to as Graham).

• The land was agricultural land ripe for development, Pye had plans to develop same and was in the process of getting planning permits etc.
• In 1982 Graham purchased a part of Pye’s property, which he (Graham) used for farming.
• Pye made an agreement with Graham that he could use his remaining property for grazing for a specified period of time.
• Pye’s land (hereinafter referred to as the disputed land), was fully fenced except for access by a foot-path or through a small gate, the key for which Graham held.
• In February 1983 and again in December 1983 both parties again entered into short grazing agreements for a cost, with condition that Graham kept the gate and fence in good condition among other things.
• Pye in the agreement reserved the right to terminate at any-time and regain possession on service of 6 months’ notice, the contract also expressly stated that grazing after the expiry date was only to be by way of a new contract. (this shows that an [expired] contract without more is insufficient to save a title owner in this situation).
• Graham had an informal licence and It was unclear whether Graham vacated the property prior to the 1983 contract.
• December 1983 a Surveyor acting for Pye wrote to him suggesting that he grant Graham a new license for 1984 and on the same day he also wrote to Graham asking him to vacate as his license had expired.

• January 1984 Pye refused to renew the agreement as he anticipated planning permits for the land.
• The Grahams were aware of Pye’s plans to develop and that he did not want the land used for grazing anymore. (This too is significant as it helps to show the court the intention of the squatter, Graham knew of the owner’s plans but still carried on with his own.
• Mr. Graham senior (the member of the family who actually contracted with Pye) died in 1988, and a week later his wife registered cautions against Pye’s title.
• The Grahams remained in occupation from January 1984 and all times after.
• Graham continued to spread dung and straw in winter, left cattle to graze, fertilised the land etc., despite knowing it was their own risk, as Pye could have asked them to stop at any time and they would have lost all that work, time and resources.
• 1984 Pye agreed to sell Graham the standing grass on the land to cut and complete by August 1984; this means that any use after September 1, 1984 was without permission. (this is important as one cannot adversely possess if they have permission.)
• December 1984 the Grahams wrote to ask if they could take another cut of Hay and preferably get a grazing agreement for 1985, Pye did not respond to this nor subsequent letters, thereafter the Grahams did not attempt to make contact.
• September 1984 to 1999 – fifteen years, the Grahams used the whole property for farming, they never vacated the property, they kept cattle in a shed, fertilised the land, boundary fence maintained, reseeded the land etc. all the while they were aware that there was a risk of him not obtaining the benefit of his work as he had no agreement but he was willing to take a chance.
• Various witnesses gave evidence in court that they thought the property belonged to Graham. (significant as possession must be open, it cannot be in secrecy).
• The judge asked the Surveyor, what, over and above what Graham had done might an occupying owner have done? He could not think of anything. In other words, was Graham behaving any less than if he owned the land? And the Surveyor said no, (which is to Graham’s benefit as the squatter must treat the property as his own, he does whatever he wants as if he is the owner).
• Graham in his witness statement stated that he was willing to pay if asked, he said in light of the lack of interest shown by Pye he continued to use the land for what he considered to be best use, he also believed it possible to obtain ownership of the land if occupied for enough years.
• There was no action on the land by Pye from 1984 to 1999 – 15 years (only 12 years is required).
• In 1993 a representative of Pye went to inspect the property but only viewed it from the road, he did not go onto the land (going onto the land would have helped to interrupt possession).
• Pye did some paper transactions relating to the land but that was insufficient to constitute possession.
• In 1999 Pye issued proceedings seeking possession of the land.

The ISSUES for the Court were:-
– Did Graham remain in possession for 12 years uninterrupted without permission
– Did Graham have the requisite intention to possess or animus possidendi.
– Did Pye interrupt Graham’s possession
– Was Pye dispossessed of his land

THE LAW
The Limitations Act and the Registration of Titles Acts (the legislations governing this area) were referred to by the judges, both states that where land has been possessed adversely for a minimum of 12 years the title owner no longer has a right to recovery action and the title can now be vested in the possessor/squatter.
I will now explain/define some of the terms used in law as it relates to adverse possession and what they mean :-
Possession – has been understood to refer to the degree of occupation or physical control coupled with the requisite intention generally referred to as animus possendi.
– Generally, the paper owner is deemed to be in possession.
However, where another can show evidence that establishes factual possession AND the requisite intent to possess (animus possendi) then he is deemed to be in legal possession; however, if there is no animus there is no possession because it is not the action of the squatter that matters but the intention with which he does the act.
– Factual possession – refers to the degree of physical control, it must be exclusive and one person can possess on behalf of others, but the owner and the squatter cannot both be in possession.
– Sufficient degree of exclusive physical control – differs in each circumstance, but generally a squatter must have been dealing with the land as if he is in fact the title owner, that is, he does whatever an owner of land would with property but it is not necessary that it is what this particular owner had or has in mind.
– Intention to possess – the adverse possessor or squatter must have an intention to exclude the whole world including the title owner, on his own behalf and in his own name.
Dispossession – refers to the taking of possession from another without a license and without his consent
Admission of title – where the squatter admits that the property belongs to another, it does not detract from the fact that he is in possession, (if anything it helps to prove his intention), all that is required is that he is in possession (the legal meaning) without permission for the requisite time and he has the requisite animus possendi (intention).

ANALYSIS
Graham license had expired and he nevertheless continued using the land for his own purpose despite knowing that the Pye (title owner) could ask him to quit at any time and despite knowing that he was acting contrary to the Pye’s wishes; he farmed the land same as he did his own land. This shows that Graham acted without permission and it also shows his intention to possess the land as his own.
From 1984 to 1997 (13 years), the Grahams were the only ones to use the land, Pye was, throughout the period excluded from the property, Graham had the only key to the gate for the property which was fenced, and additionally neither Pye nor his agents attempted to go onto the land at any time during this period.
Pye sent notice to quit, refused to renew license, ignore later requests for renewal from Graham, all through this Graham continued to exclude Pye and the world (locked gate) and the land was used as his own, this shows his intention and in fact amounted to sufficient animus possidendi.
Only after the requisite 12 years ran, did Pye seek to interrupt Graham’s blatant use of the land or his possession.
In concluding, Graham occupied/possessed the land, he used it as his own, notices to quit were ignored, and despite knowing the owner’s plans to develop the land, he openly carried on without permission for 15 years.

The aforementioned facts illustrated that Graham indeed had the requisite animus possidendi or intention to possess, and there was no doubt that he was in fact in possession of the land, without permission, uninterrupted for the requisite twelve years as required by law.
The court found that Graham successfully dispossessed Pye and was now the new title owner of the entire property by way of adverse possession.

See also the Jamaican case of Recreational Holdings (Ja) ltd. V Carl Lazarus [2014] JMCA Civ 34

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Can a joint tenant be dispossessed by his fellow co-owner?

LOIS HAWKINS v LINETTE HAWKINS McINISS [2016] JMSC Civ 14
PROPERTY – EXTINCTION OF TITLE BY ONE CO-OWNER – WHETHER TITLE EXTINGUISHED – HUSBAND DECEASED – WHETHER THIRD WIFE CAN CLAIM PROPERTY UNDER EXTINCTION OF TITLE PRINCIPLE

FACTS
Mr. H got Married to Mrs. H and both bought a property; they later got divorced and he bought her share of the property making him sole owner.
In 1989, Mr. H marries Mrs. H2. And her name was added to said property as Joint tenant, however, she had never lived or even slept at the property. Mr H died in 2009 and at the time of his death, Mr. H and Mrs. H2 were still registered as joint owners of the property.
Mr. H and Mrs. H2 had migrated to Canada, but, after a few years, he returned to Jamaica leaving Mrs. H2. Whilst in Jamaica he moved a new lady-friend into the property, and they lived there together until his death; this lady who we will refer to from hereon as Mrs. H3, asserts that she, in fact, married Mr. H in March 1999, though, the only evidence of their marriage was a copy of marriage receipt given to the bride on the wedding day.Mrs. H2 denies being divorced from Mr. H and there was no evidence of the divorce.
After Mr H’s death, Mrs H3 filed a claim where she asserts that despite her (Mrs. H3), not having contributed any money to the acquisition of the property , Mrs. H2 title is extinguished and had been even whilst Mr. H was alive and as such Mrs. H2 is not entitled to take by way of survivorship or at all.
Mrs. H3 was granted Letters of Administration of Mr. H estate in May 2012, and as Administratrix she filed a claim asking for inter alia, declarations that
(i) the property forms part of Mr H estate
(ii) that Mrs. H2 holds the property on resulting trust for the estate
(iii) that the property was the matrimonial home of Mr. H and Mrs. H3, and
(iv) that Mrs. H3, as Mr. H wife, she is entitled to an interest in the property.
Mrs. H3 relied on Mr. H’s conduct in relation to the property to displace Mrs. H2.

ISSUES
1. Whether Mrs. H2 interest in the property been extinguished
2. Whether Mrs. H3 have an interest in the property

PRINCIPLES
The Court of Appeal case of Fullwood v Curchar [2015] JMCA Civ 37 was referred to, to demonstrate that :-
i. Generally, where there is a joint tenancy and one co-owner dies then the other takes all by way of the right of survivorship; however, the Limitations Act makes each co-owner possession separate and as such, one co-owner may lawfully dispossess the other.

ii. a person’s name being on a title is not conclusive evidence that they cannot be dispossessed, even by a fellow co-owner if certain conditions exist based on the Limitation’s Act.
The result being that if a co-owner is dispossessed under the Limitation Act, the right of survivorship is extinguished and a person can rely on this displacement to resist any claim of possession; which would result in the co-owner having to prove that her title was not extinguished and this would, in turn, give her standing to bring the claim.
Further, dispossession arises where the dispossessor has a sufficient degree of physical custody and control over the property in question and an intention to exercise such custody and control over the property for his or her benefit; no hostile act is required; however, the acts relied on to prove dispossession must be sufficient.
As it relates to dispossession, the case of Powell v McFarlane and another (1979) 38 P & CR 452 was referred to, to demonstrate that the slightest act done by or on behalf of the owner will negative the claim of the intruder; and that the court will require clear evidence that the trespasser has the requisite intention to possess and he must make that intention clear to the world. Possession must be unequivocal and exclusive.

THE ANALYSIS
On the facts, WH was in physical possession of the property but did he have the requisite intention?
Mrs. H3 states that she met WH in 1993 and at that time he was married to Mrs. H2, (note: she cannot be classified as common law wife as that require two SINGLE persons).
When she met WH, he was living alone at the disputed property. She moved in with him in 1995, by all appearances Mrs. H3 was treated as the woman of the house, which is an important factor when considering Mr. H intention.
The fact that WH permitted Mrs. H3 to move into the house is not of itself sufficient to prove his intention, more is required.
On the evidence, although Mrs. H2 name was on the title since 1989, Mrs. H2 and WH did not live at the disputed property as husband and wife, she never took up physical possession of the property throughout her marriage to WH, and she never stayed there even whilst visiting from Canada despite the fact that WH moved into the property since at least 1993.
Mrs. H3 says that she met Mrs. H2 in 2009. If this is correct, this means that WH never had his wife living at the disputed property but moved in Mrs. H3 in 1995.
Mr. H dismissed his housekeeper that he and Mrs. H2 installed in the house around 1995 when Mrs. H3 moved in, Mr. H never disclosed this to Mrs. H2 and she was unaware of this even up until 1998, which suggest that Mr. H felt that he was completely in charge.
Mrs. H2 says that the relation with WH broke down in 1997/98.
If this is correct then this would mean that WH would have installed Mrs. H3 in the house in 1995, went to Canada at some point afterward, and return to Jamaica in 1997.
Mrs. H2 said that in 1997 she showed up at the property unannounced and she was never let into the house, as Mr. H and Mrs. H3 was locked inside.

The question is where in all this did Mr. H form the intention to possess the property as if he were the sole owner?
From this evidence beginning in 1995 right through to Mrs. H2 visit in 1997, it appeared that WH showed an intention to regard the property as his own. He regarded himself as his own man, as the sole owner and not a co-owner with Mrs. H2.
Mrs. H2 name on the title gave her a prima facie legal and beneficial interest in the property. She alleged that she paid off the mortgage, however this does not prevent the operation of the doctrine of extinction of title.
Mrs. H2 said that she maintained a presence through her children but the evidence of this was not reliable and therefore not accepted. On the whole, the court preferred the evidence of Mrs. H3. The act of seeking to eject Mrs. H3 from the property came too late.

CONCLUSIONS
The relevant period for examination is 1993 to 2009. WH physical possession of the property is not in dispute.
The question then was, did he intend to possess the property and treat it as his own? And did this continue for the requisite period of twelve years?
On the evidence presented the court concluded that in 1995 when WH invited Mrs. H3 to live at the property, after Mrs. H2 had returned to Canada, he formed the intention to occupy the property as if he were the sole owner.
The manifestation of this was the termination of the helper’s services when Mrs. H3 moved into the house and his subsequent relationship with Mrs. H3, which Mrs. H2 gleaned from the telephone calls she made to the property between 1995/97. This finding is supported by the fact that on Mrs. H2 evidence the intimacies that couples who are still functioning as a couple would share regarding domestic arrangements were absent.
Additionally, at no time did Mrs. H2 ever sleep at the property. On all her visits to Jamaica when WH was at the house she never slept there. Even in 1997 when she claimed that she went to the house she was not permitted to sleep there. This intention continued right up to the time of WH death in 2009.
The act of seeking to recover possession from Mrs. H3 came too late. The extinction of title claim was established.
This meant that the ESTATE of WH was entitled to the entire legal and equitable interest in the disputed property. Mrs H2 was dispossessed by her husband- her fellow co-owner.

Getting an Interlocutory Injunction (an order to do or not to do an act pending the outcome of the trial) in Jamaica

 

At the time of writing, this was the most recent case decided on the matter in the Supreme Court of Jamaica.

Algix Jamaica Ld. V J. Wray and Nephew Ltd. [2016] JMCC COMM. 2

Interlocutory Injunction Nuisance – Ryland’s v Fletcher – Riparian RightsNatural Resources Conservation (Wastewater & Sludge) Regulations 2013- Whether Defendants breach of Regulations entitle Claimant to Injunctive Relief – Whether damages an adequate remedy – Balance of convenience

Judge: Batts, J.

BACKGROUND
This was an application for an interlocutory injunction (an order by the court to do or not do an act before the trial of the matter is completed), The Claimant sought to have the Defendant ordered not to spill effluent or waste into the Black River (Jamaica) beyond the standard allowed by law.

The Claimant, Algix Jamaica Ltd ( hereinafter refered to as AJL) contended that the Defendant’s Factory, J. Wray & Nephew, (hereinafter refered to as JWN), both located in and around Black River area, spewed Effluent or waste into the river which then flowed downstream and caused serious damage to it’s fish ponds.

LAW

In a situation as this, the Court must consider a few things in determining whether to grant the injunction; The Court has a duty to look at the the evidence and determine:

  1. Does AJL have a cause of action, that is, is there a serious issue to be tried.
  2. At the end of the day, will damages be an adequate remedy, on one hand and, would the JWN be adequately compensated by the undertaking as to damages on the other hand.
  3. If there is doubt as to the adequacy of damages (damages in law refers to money, that is money compensation), in both cases, the court must also consider whether the balance of convenience favours the grant of an injunction.

This is to assess and decide what is likely to produce the most just result; granting or withholding the requested injunction.

In this particular case the court referred to a judgement by Lord Hoffman, where he said,

“In practice, however, it is often hard to tell whether either damages or the cross-undertaking will be an adequate remedy and the court has to engage in trying to predict whether granting or withholding an injunction is more or less likely to cause irremediable prejudice (and to what extent) if it turns out that the injunction should not have been granted or withheld, as the case may be. The basic principle is that the court should take whichever course seems likely to cause the least irremediable prejudice to one party or the other.

The court also refered to Lord Diplock speech in the well landmark case of American Cyanamid [1975] AC 396 , 408:  where he said,

… various matters may need to be taken into consideration in deciding where the balance lies, let alone to suggest the relative weight to be attached to them.” 18. Among the matters which the court may take into account are:

  • the prejudice which the plaintiff may suffer if no injunction is granted or the Defendant may suffer it if is;
  • the likelihood of such prejudice actually occurring,
  • the extent to which it may be compensated by an award of damages or enforcement of the cross-undertaking;
  • the likelihood of either party being able to satisfy such an award; and
  • the likelihood that the injunction will turn out to have been wrongly granted or withheld, that is to say, the court’s opinion of the relative strength of the parties case.”

Where there is doubt as to the adequacy of damages to either party or to both, then the question of balance of convenience arises.

In determining the balance of Convenience, the Court will look at factors such as:

  • Is the Defendant (in this case JWN) ordered temporarily from doing something that he has not done before, in which case the only effect of the interlocutory injunction in the event of his succeeding at the trial, is to postpone the date at which he is able to embark upon a course of action.
  • Contrast this with the situation where he has an established enterprise and his actions are interrupted or barred; in this case it would cause much greater inconvenience to him since he would have to start again to try and re-establish his business if he succeeds at the trial.

The decision to grant or to refuse an interlocutory injunction will cause to the party that is successful at the trial, some disadvantages which entitles him to damages.

The extent to which the disadvantages to each party would be incapable of being compensated in damages in the event of his succeeding at the trial is always a significant factor in assessing where the balance of convenience lies, and,

If the extent of the uncompensatable disadvantage to each party would not differ widely, then the court may take into account in tipping the balance, the strength of each party’s case as revealed by the affidavit evidence adduced on the hearing of the application. This, however, should be done only where it is apparent upon the facts disclosed by evidence as to which there is no credible dispute that the strength of one party’s case is disproportionate to that of the other party. The court is not to try the case at this point.

In the Present case, the Judge referred to some affidavits that were sworn and decided that there was indeed a triable issue and that the Claimant did in-fact have a real prospect of success.

The evidence included, among other things, a call from the Defendant stating that effluent had escaped, and water testing by a scientist who concluded that the water sample taken did not meet National Environment and Planning Agency (NEPA) trade effluent standards and that in his opinion fish kill was caused from contaminants which originated from trade effluent discharged by Appleton upstream.

JWN denied AJL’s allegations and suggested that other activities along the river, such as, the operations of a sausage factory might have contributed to his fish demise, the growth of algae in the fish-ponds was also suggested, JWN expert concluded that it was unlikely that the discharge from the Appleton Estate would have the damaging effect complained of by the claimant.

The Judge said that this was a case where damages was the only remedy possible, he noted AJL’s contention that there is a real possibility that JWN might repeat the incident, and that, being that they, AJL, are the largest operation of its kind in the English speaking Caribbean, the wiping out of it’s fish population would be lethal to fish farming in the region, which would result in the need for Jamaica to import fish, this AJL said shows that more than just the dollar value of fish lost was at stake.

JWN contended that an effective undertaking as to damages was not given, that a forced closure would be bad for the region as it is the main source of economic activity in the area, employing 650 persons plus others that are subcontracted, it mentioned the export of its sugar, molasses, its rum demand, and suggested that an injunction would adversely affect the company and the surrounding communities.

 

The court stated as a general principle, there is no rule that the court must require evidence as to a party‟s ability to give a cross-undertaking as to damages before an interlocutory injunction can be granted … The proper usual practice and law is, to require evidence both of a willingness and an ability to provide a proper undertaking as to damages … some authorities even suggest that where a company is concerned, financial statements, records or accounts should be placed before the court in order that the court can properly assess the adequacy of the remedy of damages to the Defendant and the Claimant’s financial ability to pay them.

CONCLUSION

On the evidence, the court found  that AJL’s ability to honour the undertaking was satisfactory, and that, on the whole the question of damages and the potential consequence to AJL and its industry if the Injunction is not granted on the one hand, with the potential injury to JWN and the sugar producing community on the other is evenly balanced. Damages in either case may not be an adequate remedy in the event either is ultimately successful at trial, which meant that:

whether or not an injunction is to be granted has to be determined by reference to the so-called balance of convenience or in the modern parlance by determining what is more likely to produce a just result.

As such the court considered, among other things,

  • The evidence from NEPA
  • The Claimant’s complaint of nuisance or negligence causing injury

And found the balance of convenience laid with AJL.

The Court ordered JWN to stop all discharge of effluent or waste beyond the standard allowed by law and  that the claimant give an undertaking for damages.

Cases refered to were:-

  • Rylands v Fletcher
  • London Borough of Islington v Margaret Elliott [2012] EWCA Civ 56 per Patten LJ @ para 29;
  • University of the West Indies v. Mona Rehabilitation Foundation SCCA 17 and 21 of 20011 unreported judgment 31 July 2001 @ page 5 per Forte P;
  • Lloyd V Symonds 1998 EWCA Civ 511 per Chadwick LJ as quoted in LBC of Islington case (above)
  • Intercontex v Schimdt 1988 FSR 575 (a judgment of Peter Gibson J)
  • TPL Limited v Thermo-Plastics (Jamaica) Ltd. SCCA 91/2012 [2014] JMCA Civ 50.
  • Jones v Llanrwst Urban District Council [1908-10] All ER 922.

Laws of Jamaica Simplified.

Hi there cyber-world!

I did it! I have been toying with the idea of starting a blog for a while and I just wrote my first sentence!

I hope to simplify the laws of Jamaica here, for the benefit of all; the legal minded and the not-so legal minded, by simplifying not only our (Jamaica’s) Legislation but also case-law.

I am an Attorney-at-Law called to the Jamaican Bar and in the process of writing the Canadian Bar, and so eventually I may also include Canadian Law simplified!