THE

THORNY THISTLE OF TITLE BY PRESCRIPTION: POSSESSORY TITLE VS PAPER TITLE

Many woeful tales are told of people who lose their lands to absolute strangers or relatives who occupied the land for a period of time. Many of these feuds and battles wind up in the land or criminal courts.

What therefore is this thorny thistle of title by Prescription and what elements must be established to the court to justify defeating the claim of a paper title holder to his land?

The Title to Land (Limitation and Prescription) Act (Guyana), chapter 60:02 as amended by Act No. 6/2011 section 3 provides –

‘3. (1) Where the Court is satisfied that the right of every other person to recover land or any undivided or other interest in land has expired or been barred and the title of every person to land has been extinguished, title to the land may, subject to subsection

(2), be acquired –

A. By sole and undisturbed possession, user or enjoyment for not less than 12 years;

B. If possession, user or enjoyment is established to the satisfaction of the Court; and

C. If possession, user or enjoyment was not taken or enjoyed by fraud or by some consent or agreement expressly given for that purpose

(2) State land, Government land, land wholly owned by State entities including companies and corporations or in which the controlling interest is vested in the State and any land identified by law or on a plan drawn and approved in accordance with any law for reserves for the public interest and benefit or to any undivided or other interest in any land in this subsection is expressly excluded and shall not be acquired by prescription through adverse possession.’

Thus a Landowner can usually take action to evict a squatter from his land. However, if he delays taking action for 12 years he could lose his right to sue because his action will be time-barred. This effectively leaves the squatter with a superior title to the land since the true owner has slept on his rights. The case of Treloar v Nute [1977] 1 All ER 230 at 234, is exemplary.

It should be noted that state and government lands are excluded from this provision.

A person claiming adverse possession must establish to the court the following prerequisites:

by Dr Kim-Kyte Thomas

• The occupation was of a kind which showed sole and undisturbed possession user and enjoyment deliberately adversely and exclusively exercised,

• Was for at least 12 years

• Was without fraud

• Was not the result of some consent or agreement expressly made or given to allow such occupation without adverse consequences.

• That the petitioner had the necessary animus possidendi, i.e intention to possess the land.

The Caribbean Court of Justice in Toolsie Persaud Limited v Andrew James Shivlochniesingh and the Attorney General of Guyana 2008 CCJ 5 (AJ) examined the Title to Land (Limitation and Prescription) Act (Guyana), chapter 60:02. The court in paragraphs 27 and 28 explained the concept of possession as follows: -

“The question is simply whether the Defendant squatter has disposed of the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner… except in the case of joint possessors, possession is single and exclusive, therefore if the squatter is in possession the paper owner cannot be…”

Thus, paper titleholders must note that the concept of possessory ownership is real, lawful, legal and enforceable. In Sarajbeet Ramlakhan v Boodnie Farouk 21 WIR 225 at 229, Chief Justice

Bollers explained the nature of possessory rights - “they had what is known as a crystallized possessory title or as it is sometimes called, a parliamentary title which was transmissible and/ or inheritable, and which they could legally dispose of to the Petitioner, the effect of the adverse possession for the statutory period being the destruction of the title of the person who had been dispossessed.”

Hence in Guyana, it is adverse possession for the statutory period which confers crystallized possessory title, not the declaration of the court. The case of Re Transport, Reece to Neilson (1917) LRBG 126, illustrates this position. The declaration from the court just clothes the occupation with legal garments.

Further, it should be observed that the possessory title is both alienable and inheritable. Thus, it can be transferred or form part of a deceased person’s estate.

A closer look at the quality of the possession reveals that the Petitioner must establish to the Court that possession is nec precario (adverse) to that of the Paper titleholder. Caribbean Author and Scholar Gilbert Kodilinye in his book Commonwealth Caribbean Property Law notes at page 247 that this requirement is crucial to the applicant’s case.

The Possession must not be grounded by way of family arrangement since in such a case the possession will be by consent unless there is evidence sufficient to rebut the consent. This was illustrated in the case of Scantlebury v Young (1948057)

1 Barb LR 23.

Neither can it be grounded on a lease. The case of Ramnarace v Lutchman 2001 Privy Council Appeal no 8 of 2000 (unreported), demonstrates this point. The right of action against a landlord does not accrue until the lease comes to an end -section 9 of Title to Land (Prescription and Limitation) Act (Cap. 60:02). (Guy).

The following cases establish that a sufficient degree of exclusive physical control is required-

1 Powell v Mc Farlane (1977) 38 P & CR 452 pp 471,472; and

2 Rosalene Giddings and Clarine Dillon et al Civil Appeal No. 3 of 2007. See the Honourable Justice of Appeal Yonette Cummings Judgment.

The winner of the battle depends on the evidence adduced to the court and the paper titleholder should note that the law grants to him a right to file an opposition to the Petitioner’s Petition and defend his title in court. The courtroom is the best venue for the fight and people are urged to take the battle there.