Adverse Possession

• Pages: 267-319

ADVERSE POSSESSION

Title to land can be acquired by appropriating a piece of land of another

person and remaining in undisturbed possession of it for a period pre-

scribed by statute without acknowledging the title of the true owner. If the

true owner fails within the prescribed period to assert his title to his land

which is wrongfully possessed by the stranger, his title to the land will be

extinguished by operation of the statute. The stranger’s possession ripens

into a valid title to the land if his possession is adverse to the rights of the

true owner.

With respect to land, the common law lays much more emphasis on

possession than ownership. Atrespasser who gains possession of land is

accorded all rights of ownership by the common law, which denies the

ousted owner any such rights except the right to recover the property by

action. Possession therefore “gives ownership good against everyone

except a person who has a better, because older, title”.1

The ousted owner’s right of re-entry could be exercised at any time.

The possibility of the land being recovered at any time created uncertainty;

it could inflict hardship on an intruder who had remained in long and

undisturbed possession. It was obviously inimical to the public interests

if transactions, mortgage, purchase, lease, etc., entered into with such

an intruder, could be set aside in an action instituted after any interval of

time, however long, against the intruder. The public might not have

had any cause to doubt the title of the intruder whose enjoyment was

open and unchallenged. The function of the doctrine of adverse possession

is therefore to remove the possibility of the prosecution of such stale

claims against an intruder whose possession has been open, continuous,

notorious and exclusive.

Title by adverse possession is instituted by legislation which operates

to bar the claim of a true owner whenever the circumstances surrounding

the possession of the stranger are found to be sufficient to manifest

incompatibility with the title of the true owner. The doctrine therefore

affords a means by which title to land can be acquired without any

payment. It facilitates the acquisition of

1Newington v. Windeyer (1985) 3 N.S.W.L.R. 555, 563E-F.

CHAPTER 8

267

Title by theft or robbery, a primitive method of acquiring land without

paying for it.2

There are several reasons for this indulgence which, among other things, is

aimed at preventing the disturbance of long established de facto enjoyment.

In the interest of peace the law should provide a system which facilitates

the quieting of possession.

Long dormant claims have often more cruelty than justice in them.3

There should therefore be an end to litigation. Prolonged litigation is

expensive. Purchasers should be made to feel secure in the titles which

they have acquired; they should not be haunted by fear of litigation,

defending stale claims which question the title of their vendors. But the

basis of this policy becomes questionable where there is a viable and

effective land registration system, which does not give room for protracted

uncertainty as to where the title to land lies at any given time.4

Some of the authorities smack of a policy to chastise a paper owner

who is not vigilant. The diligent is therefore rewarded at the expense of the

indolent. It is said that those

who go to sleep on their claims should not be assisted by the courts in

recovering their property.5

Possession on which title can be founded under the statute must be

adverse or else a claim based on the statute will not succeed. Before

examining the other ingredients of this doctrine of adverse possession, it is

desirable to look at the time-limits for the operation of the doctrine.

THE LENGTH OF LIMITATION PERIOD

The limitation period for land claims is 12 years for all the territories6

with the exception of Barbados and Bermuda which have 10 and 20

2H.W. Balantine, “A Title by Adverse Possession” (1918–19) 32 Harv. L. Rev.135. Theft or

robbery does apply only to movables; strictly land cannot be “stolen” as distinct from it

being “appropriated”.

3Best C.J. in A’Court v. Cross (1825) 130 E.R. 540, 541.

4See Pye v. Graham [2003] 1 A.C. 419, 426.

5R.B. Policies at Lloyds v. Butler [1950] 1 K.B. 76 at 81, per Streatfeild J. It is reported in the

Daily Express, 8 July 1996, a “Squatter sells home for £103,000. The BBC website of

Tuesday, 20 July 1999, http://news.bbc.co.uk/1/hi/uk/399102.stm, reports, “A

squatter has been awarded legal ownership of a house valued at £200,000 in South

London” in the case of Ellis v. Lambeth LBC. There is a report of “A squatter who tried to

claim ownership of a £400,000 house where he had lived for more than a decade has been

evicted” at the BBC website, Thursday, 11 May 2000, http://news.bbc.co.uk/1/hi/uk/

745458.stm.

6Limitation Act, 2000, Cap.L60 (Anguilla), s. 5(3); Limitation Act, No. 8 of 1997(Antigua),

s. 17(1); Limitation Act, 2000, Ch. 83 (Bahamas), s. 16(3); Limitation Act, 2000, Cap.170

Commonwealth Caribbean Land Law

268

years,7respectively, as the period within which a claim with respect to

land can be prosecuted. In the case of the State, the limitation period for

prosecuting land claims by the State in Barbados is 30 years and 60 years

where the land in dispute is a foreshore.8In Grenada and Bermuda the

rights of the State in all lands are barred after the lapse of 60 years.9“All

lands” in the provision would necessarily include the foreshore.

The period starts as soon as the true owner becomes entitled to

commence legal proceedings against the person in possession, that is,

when the person enters into “adverse possession”.

From the start to the end of the limitation period, there should be

continuous acts of possession. But, as noted above, possession is a matter

of fact depending on all the particular circumstances, and in very many

cases, as observed in Bligh v. Martin, possession cannot, in the nature of

things, be continuous from day to day. There would be no interruption,

for example, if the squatter is away on vacation or working. If the land is

adapted for seasonal pursuits, the test of continuity would be met if the

land was utilised seasonally by the squatter. In the case of arable land, a

squatter should be considered as retaining possession during the season

when such land cannot be cultivated.

There are tolling provisions, i.e., provisions which suspend, delay or

hold off the effect of the time-limit provisions in the various statutes with

respect to specific matters, such as tenancies, future interest, mortgages,

trusts, deceased persons’ estates and registered land. In most cases these

tolling provisions defer or protract the time for procuring title by adverse

possession.

(Belize), s.12(2); Limitation Act, 1984, No. 54 (Bermuda), s. 16(1); Limitation Act, 1991,

Cap.43 (British Virgin Islands), s. 6(3); Limitation Law No. 12 of 1991 (Cayman

Islands), s. 19(1); Real Property Limitation Act, 1991, Ch. 54:07 (Dominica), s. 2;

Limitation of Actions Act, 1990, Cap.173 (Grenada), s. 4; Title to Land (Prescription and

Limitation), 1973, Cap.60:02 (Guyana), s. 5; Limitation of Actions Act, 1973, Cap.222

(Jamaica), s. 3; Limitation Act, 1962, Cap.45 (Montserrat), s. 6(3); Limitation Act, 1961,

Cap.45 (St. Christopher [St. Kitts] and Nevis), s. 6(3); Limitation Act, 1990, Cap.90 (St.

Vincent and the Grenadines), s. 17(1); Limitation Act, No. 22 of 1981 (Trinidad and

Tobago), s. 13(3).

7Limitation of Actions Act, No. 11 of 1997 (Barbados) s. 25(1); Limitation Act, 1984, No. 54

(Bermuda), s. 16(1).

8Limitation Act, 1961, Cap.68 (Anguilla), s. 5(1); Limitation Act, No. 8 of 1997(Antigua),

s. 17(5) excludes the application of the statute to Crown Land; Limitation Act, 2000, Ch.

83 (Bahamas), s. 16(2); Limitation of Actions Act, No. 11 of 1997 (Barbados) s. 25(2) (no

provision on claims for foreshore in Barbados); Limitation Act, 2000, Cap.170 (Belize),

s. 12(1); Limitation Act, 1991, Cap.43 (British Virgin Islands), s. 6(1); Limitation Law No.

12 of 1991 (Cayman Islands), s. 21(1) and (2); Real Property Limitation of Actions Act,

1990, Cap.173 (Grenada), s. 3; Limitation Act, 1962, Cap.45 (Montserrat), s. 6(1); Limita-

tion Act, 1961, Cap.45 (St. Kitts and Nevis), s. 6(1); Limitation Act, 1990, Cap.90 (St.

Vincent and the Grenadines), s. 17(6) and para. 10, Part II of Schedule; Limitation Act,

No. 22 of 1981 (Trinidad and To bago),s. 13(1) and (2).

9Real Property Limitation of Actions Act, 1990, Cap.173 (Grenada), s. 3; Limitation Act,

1984, No. 54 (Bermuda), s. 16(7) and Schedule 1, Part II, clause 9.

Chapter 8: Adverse Possession

269