RISK OF LOSING YOUR PROPERTY UNDER THE POSSESSORY TITLES ACT AND WAYS OF MITIGATING THE RISK PART 1

Vol.1, No.3

Part 1

As stated in previous articles, the Possessory Titles Act allows persons who have been in adverse possession of lands for periods of 12 years or more to obtain good title, equivalent to a proper deed, through a court process.

The Act is undoubtedly of great value to persons who are indisputably the owners of lands to which they do not have good title. It provides a relatively cheap way for such persons to get title and to be able to use their lands as collateral to raise money from banks to finance businesses or send their children to university.

However, the process is also open to abuse. Persons can use the Possessory Titles Act to lay claims to lands of which they are not the true owners.

In this two part article, I will look at six scenarios in which there is risk that you can lose your property to a claim under the Possessory Titles Act. These are all realistic scenarios actually encountered in my day to day work. I will also suggest ways in which you can protect yourself against the risks identified.

Scenario I risk

You live overseas but own lands in Grenada. You leave your property in possession of someone whom you trusted. It may be a cousin or some other relative or a friend. You don’t make any special arrangements because you trust the person and of course you have your deed and you know the property is yours.

However, if 12 years elapses and you don’t have proof that the person in possession of your property was a tenant, or was managing the property on your behalf, or had otherwise acknowledged your ownership of the property, then you run the risk of losing it through a claim for possessory title.

Sometimes the person you left in possession may have been an honourable person and worthy of your trust. But that person dies and his children or someone else claiming under his estate lays claim to your property on the strength of 12 years or more possession by the person you left in charge.

Protective measures

To protect against this risk you should ensure that there is a written agreement between yourself and the person you leave in charge of your property, outlining the capacity in which the person has possession. A simple document could suffice. But it must be signed by the one you leave in charge. Better still if it is also witnessed. Explain to your relative or friend you are leaving in charge that it is not a matter of lack of trust. It a way of ensuring that if, God forbids, something goes wrong with them there is proof of the status in which they held the property.

Scenario II risk

You live overseas but own property in Grenada. You set your mind on returning home and building a home on your property. Initially, you allowed someone to work the property to make garden at a rent of $10 per year. You collect the rent for 2 years but then the person does not pay and you don’t bother about it. If you allow the person to remain in your property for a further 13 years without paying rent, you run the risk of the person making a claim to your property under the Possessory Titles Act.

Protective measures

To protect against this risk, ensure that you have an agreement and collect the rent. Upon collecting the rent you should provide a receipt. Bear in mind, though, that a receipt is issued by you;it is not usually signed by the tenant and may not be conclusive evidence against the tenant if, for example, they say they know nothing of the receipt. A tenancy agreement signed by the tenant plus receipts would however be conclusive evidence. You can appoint an agent in Grenada to collect the rent and issue receipts on your behalf.

If you decide to abandon collecting rent, then have the former tenant sign a document acknowledging that you are the owner of the property and that they occupy it with your permission until you are ready for it.

While it is not a requirement to give your document legal force, you should have it signed in front of a witness just in case its validity is doubted in the future.

Scenario III risk

You live overseas but own property in Grenada. You set your mind on returning home and building a home on your property. However, in the meantime you decide not to spend money on it and you effectively abandon it.

While you are away working hard to raise the money to build when you return, someone goes onto your property and occupies it as a trespasser for a period of 12 years or more.  Such a trespasser can make a claim to your property under the Possessory Titles Act.

Protective measures

Remember, adverse possession is required for a claim under the Possessory Titles Act. And adverse possession is defined as open, exclusive and undisturbed possession. Therefore, in order to protect yourself against this risk of the trespasser getting your property, you must take steps to disturb the possession as soon as possible and in any case before 12 years of trespass expires.

But what action on your part would disturb possession? It is a matter of degree. Most persons faced with this situation would want a lawyer to write the trespasser.However, it has been held by the courts that a letter from a lawyer notifying the person to quit possession of the property does not amount to disturbance of possession. In fact, if the trespasser continues possession after the letter that would confirm adverse possession rather that disturb it.

Going physically on the property and physically dispossessing the trespasser may amount to disturbance. However, such action could result in a breach of the peace and is not encouraged.

The surest and most recognised way to disturb adverse possession is to file an action in the High Court for possession of your property and for damages for trespass. From the time the claim is filed time stops running. Hence it doesn’t matter how long the court takes to hear and determine the matter after you file your action. The only time that could be counted in determining whether the trespasser achieved 12 years of adverse possession is time up to the date of filing your action.

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.