Possessory title

The court recently gave notice of the assignment of His Lordship the Honourable Justice Albert Matthew to St. Vincent and the Grenadines specifically to deal with the matters pertaining to possessory titles. He will take up his assignment from the 1st day of September and his court will commence work from September 18, 2006 when the new law term begins. Justice Matthew was a High Court Judge and justice of the Court of Appeal in the OECS. We congratulate Justice Matthew on his appointment and extend a warm welcome to SVG.{{more}}

Quite a great deal of land in St. Vincent and the Grenadines has in the past been transferred by way of possessory title. Many of our fore parents transferred land by way of a receipt on a scrap of paper and in many cases these receipts could not be found with the effect that there were no legal titles. The beneficiaries in many cases have sought to rectify this with the registration of a declaration of possession. The old law provided for a declaration to be made by persons who have been in occupation of private land for more than 12 years and crown lands for more than 30 years.

The Limitation Act prevents a person from recovering land that has been under the control of another “after the expiration of twelve years from the date on which the right of action accrued to some person.”

A person who owns land must therefore be alert and vigilant in maintaining a presence. If he allows another to occupy his property or part thereof without making a claim he may find that he loses it to some one who is claiming adverse possession. A rent-paying tenant who defaults and stays over for twelve years or more cannot claim adverse possession.

With the pressure of modern life and especially family and job commitments it may be possible for the owner of lands especially those living abroad to be out of touch with lands to which they may have gained possession. The possession of land requires eternal vigilance. The new law on possessory titles purports to provide a more equitable system so that land may not be transferred without the knowledge of the true owners.

The Possessory Title Act, No. 38 of 2004, was enacted in December 2004. It provides for an application to be made to the court for a title to land that is held by adverse possession. The new act describes ‘adverse possession” as “factual possession of an exclusive and undisturbed nature of a piece or parcel of land in Saint Vincent and the Grenadines for a continuous period of 12 years or more accompanied by the requisite intention to possess the said land as owner thereof.”

The Possessory Title Unit is under the jurisdiction of the High Court of Justice and applications have to be made in prescribed form. According to Section 3 (2) without prejudice to the Limitation Act, possessory title cannot be obtained for crown lands.

The act provides a transparent approach to the transfer of land so that persons with interest will have knowledge of the purported transfer. In this way they would have an opportunity to contest such transfer if they so desire

One of the positive results is that the recipient of the new possessory title will be able to use the land so acquired as collateral for loan from the bank since this was not possible with the title secured by registration of declaration.

• Ada Johnson is a solicitor and barrister-at-law.

E-mail address is: exploringthelaw@yahoo.com