POSSESSORY TITLES ACT

Vol.1, No.1

POSSESSORY TITLES ACT

In 2016, the parliament of Grenada passed the Possessory Titles Act. It is a very important law because it touches and concerns the issue of ownership of land.  And by land here, I mean land in its usual sense plus buildings constructed on land. Sometimes I would use the term “property” but I mean the same thing as land. I would use the term property, in particular, when referring to land with house or other buildings constructed on it.

The aim of the Possessory Titles Act is to benefit persons who have been in adverse possession of land for periods of 12 years or more.

Adverse possession

To claim under the Possessory Titles Act, your possession of the land must be adverse. For the purposes of the Act, this means that you do not have a proper deed for the land but have been in possession of it as owner. Where you have been in such adverse possession for a continuous period of 12 years or more, the Act allows you to follow a process which ends with the court declaring you to be the lawful owner of the land.

It follows from this that if you have been paying rent, even a rent of $1 per month, you cannot make a claim in adverse possession even if you have been on the land for 50 years. Why? Because by paying rent you are conceding that you are not the owner of the land; that it is owned by someone else. And that your possession of the land is as a tenant not as owner.

Act does not apply to state owned land

The Possessory Titles Act does not apply to state owned lands. An adverse possession claim against state owned lands requires that you must have been in open, exclusive and undisturbed possession of the land for a minimum of 60 years. Therefore the 12 year rule under the Possessory Titles Act only applies to private lands.

Main reason for the Possessory Titles Act

Prior to the Possessory Titles Act, if you were claiming land on the basis of adverse possession, you would have sought a statutory declaration. A person with knowledge of your ownership of the land would swear an affidavit. They would declare on oath that they have known you to be in possession of the land as owner for 12 years. This document would be filed in the Deeds and Land Registry.

However, the courts have made it clear that a statutory declaration is not a document of title. It is not one of those documents which is recognized as being evidence to the world that you own the land to which the statutory declaration relates.

Moreover, and perhaps more importantly, banks and financial institutions refused to recognize statutory declarations as security for loans.

Consequently, there were families with large parcels of land,at times with large houses on the land, and their only document showing ownership was a statutory declaration. These families had worth; but it was dead worth. They could not use their property as security to obtain loans to set up business or to send their children to university. Many times, they could not sell the property since banks would not give loans to buy it. They could sell it to persons who did not need to go to the bank to get the money to buy. But in those cases, they were in weak positions and had to sell their property for less than its true value.

Inherited land

The background to these statutory declarations were often quite genuine. Your grandfather may have owned large parcels of land. He purchased the land from the crown (the state). The colonial government gave him a deed, showing good title. He left the land to his five children. Before he died, he told each child which portion of land belonged to them. But he never gave them deeds. Nor did he make a will. Your father and uncles each had five children and divided up their portion of land between their children. Each of the 25 grandchildren of the original owner know their piece. You know your piece. But none of you has a deed. What started off as one parcel of land owned by your grandfather for which he had a deed has been now divided into 25 parcels with none of the owners having a deed.

The Act has come to your assistance to allow you to get good title through a relatively inexpensive and simple process.

Abandoned land

However, there are other situations in which the Act may apply. If you leave your land abandoned and someone enters on it without your permission and starts to work it, that person would be a trespasser. If you don’t take appropriate steps to end the trespassandyou allow the trespasser to have open, exclusive, undisturbed possession of your property for a continuous period of 12 years, then they could obtain possessory title of your property. Under section 27 of the Limitations of Actions Act, your title to the property is extinguished after 12 continuous years of possession by the trespasser.

Prior to the Possessory Titles Act, after the passage of 12 years of such trespass, you could not take legal action against the trespasser. However, at the same time, the trespasser could not get good title to your land. Of course, they could take out a statutory declaration. But as stated above, a statutory declaration does not represent title to the land.

If after the passage of 12 years of trespass you tried to sue the trespasser in court, the trespasser could use the fact of their trespassory possession for 12 or more years as a ‘shield’ to protect them against your legal action. However, they could not use it as a ‘sword’ to obtain good title. The Possessory Titles Act now allows trespassers to use open, exclusive and undisturbed trespassory possession for a continuous period of 12 years or more as the basis to obtain good title to your land. Hence the saying that adverse possession is no longer just a shield. The Possessory Titles Act has turned it into a sword.

Tenancy at will

The Act can also apply to cases where you hand over possession of your property to a person as a tenant. You may have rented your property under a tenancy contract for a definite period, let’s say 2 years. At the end of the 2-year period, the contractual tenancy comes to an end. If your tenant remains in possession of your property without a new contract or without paying rent, they become what is referred to as a tenant at will.

If you do nothing for 12 years after commencement of the tenancy at will to assert your ownership of the property, then your title would be extinguished; and the tenant at will can claim ownership of your property under the Possessory Titles Act.

Family land

There is another situation in which the Possessory Titles Act may apply. This is in the typical family situation. Parents own property. Parents have 5 children. Parents die without leaving wills. Four children live overseas. One child lives in Grenada and is in possession of the property. Can that child claim the property as theirs alone after 12 years of possession? The courts have not yet decided an issue as this. But stay tuned.

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.