RISK OF LOSING YOUR PROPERTY UNDER THE POSSESSORY TITLES ACT AND WAYS OF MITIGATING THE RISK PART 2

Vol. 1, No.4

Part 2

In Part 1 of this article, we looked at three scenarios in which you, as a property owner, could lose your property to a claim under the Possessory Titles Act. We also looked at ways in which you can protect yourself against the risks identified. I will complete this article by looking at three more scenarios.

Scenario IV risk

You are entitled to a share of family property handed down from your grandparents. The property was never divided. So the family owns it but no individual member of the family has a specific share.  All of the persons who are entitled to a share of the property are overseas and no one is looking out for the family interests. In the meantime, a stranger goes onto the property as a trespasser and occupies it for 12 years. After the 12 years the trespasser can make a claim to the family property under the Possessory Titles Act.

Protective measures

Just like in the previous scenario, what is required is to take steps to disturb adverse possession of the trespasser. However, the issue here would be who has the right to take action against the trespasser since the property is undivided.

If there is an executor or administrator for the estate of which the undivided land forms a part, then that would be the appropriate person to take action. However, if no one was appointed legal executor or administrator or the person appointed is dead or is refusing to take action, then anyone entitled to a share in the property can file an action in the High Court against the trespasser.

Scenario V risk

You are entitled to a share of family property handed down from your grandparents. The property was never divided. So the family owns it but no individual member of the family has a specific share.  All of the persons who are entitled to a share of the property except an uncle left Grenada and lived overseas. The uncle never left Grenada and he had possession of the family property for close to 30 years. The uncle dies and his children lay claim under the Possessory Titles Act to the entire family property on the basis of their father’s possession forthree decades. It is not yet clear what would be the outcome of such a claim. The court has not yet decided an issue as this. But it is arguable that your cousins’ claim could succeed.

Protective measures

The safest thing here is to ensure that the uncle, or whoever is in exclusive possession of the family property, holds it on behalf of the other persons who are entitled to a share. There are several devices for achieving this. The person in possession could be asked to be the administrator of the estate of the deceased person who owned the property. In this case he would hold on behalf of all entitled to a share of the property. Or those entitled to a share can give him a carefully worded power of attorney to deal with the property. What these devices do is to create an obligation on the person in possession of the property to act in the best interest of the persons entitled to shares in it. Consequently, their exclusive possession of the property cannot be used either by them or their children to get sole ownership of it under the Possessory Titles Act.

Scenario VI risk

You own a property in Grenada. You come to Grenada every six months and occupy your property. A fraudster makes an application for a certificate of possessory title to your property. He gets two accomplices to give affidavits supporting his claim. He follows the procedure under the Act and publishes his application in the Gazette and in two newspapers. You leave the country in January and he publishes his application in the Gazette in February and his notices in the newspapers in February and April.  Under the Act, the deadline for filing objections to the fraudster’s claim ends in June. You are overseas and completely unaware of the claim against your property. In July you get wind that someone is seeking to steal your property.

According to a recent court ruling, the court has no power to extend the deadline for filing objections. Two months after the second publication in the newspaper expires, the window for filing objections slams shut. Hence, on this scenario you lose the chance of opposing the claim for your property.

You may be able to bring an action for fraud against the fraudster. But there is the danger that the fraudster could sell your property to an unsuspecting buyer in the meantime.

Protective measures

You have to ensure that you follow notices for application for possessory title carried in the Gazette or newspaper weekly. This website is seeking to assist with this. It publishes such notices on a weekly basis.

You have to also know your property. The way the notices are constructed they would give the name of the person applying for possessory title and a description of the property, in terms of the boundaries. So you have to know the location of your property and the boundaries so that you can identify it based on how it is described in the Gazette or newspaper.

If one day you discover that a notice linked to your property has appeared in the Gazette or newspaper, then immediately contact a lawyer to file a notice of objection.

If the worst turns out and you miss the period to object and a certificate of possessory title is issued against your property, do not exit your property. Remain in possession. In fact increase evidence of your possession. You could do that by putting up no trespassing and other notices with threats to prosecute trespassers, clearly identifying yourself as owner of the property.

The importance of remaining in possession and of increasing evidence of your possession  is that in law, a prospective buyer is presumed to have knowledge of all material facts related to a property which they personally, or through their attorney, could have discovered with due diligence. Under the Possessory Titles Act, the only purchaser to whom a fraudstercan pass good title, is one who acts in good faith and without knowledge of facts affecting the title of the fraudster. If a purchaser buys a property from a fraudster, of which you are in open possession, solely based on a certificate of possessory title fraudulently obtained, a court is likely to find that the purchaser had constructive knowledge of your ownership of the property. And unfortunately for the purchaser, but fortunately for you, the purchaser would not get good title to your property. He would have to find the fraudster, if he can, to get back his money.

This article is for general information purposes only. Its contents do not constitute legal advice. Before you act on any matter in this article, seek advice from an attorney-at-law.

Joseph Ewart Layne is the CEO of JEL Professional Solutions. He is a graduate of Hugh Wooding Law School, holding the LEC with Merit; he holds a LLB (Honours) and a LLM (with Merit) (Corporate & Commercial Law) from London University and a LLM (Legislative Drafting) from UWI, St. Augustine. He also holds a BSc. (First Class Honours) in Applied Accounting from Oxford Brookes University and is an ACCA Affiliate.