In 1950 Mr. Robert Burke arrives from England and buys a 50-acre tract of land in the North for which he obtains title. He cultivates a few acres in bananas and plants some mango, grapefruit and orange trees here and there. In 1958 Mr. Burke goes back to England for a holiday. Time passes by and he does not return to the island. So, in 1960, three brothers Jonah, Adam and Abel along with their two friends, Angelo and Egbert, noticing that bush has taken over the land, decide to put it into use. Each takes about 10 acres and proceeds to plant bananas and cash crops. They work hard and long hours to make a success of their investment. So much so that villagers filled with envy accuse them of playing "highty tighty" and openly pray for the day when Mr. Burke would return to drive them off the land and, by so doing, put them in their place.

In 1974 one, Dudley Burke, a son of Mr. Robert Burke, suddenly appears on the island to claim ownership of the property by valid Will of his deceased father. Young Dudley is a reasonable man and offers to compensate the squatters for the investments they have made in the land. Jonah, Adam and Angelo are willing to accept a sum of money, but Abel and Egbert are suspicious of young Burke's readiness to pay them off, and so are not prepared to give in so easily.

In fact, the suspicions of Abel and Egbert are well founded. According to the laws of Dominica, a person may lose his or her lawfully owned land to another person where that other person has been in possession of it continuously for 12 years or more and the rightful owner has not objected to his or her presence there during that period. A person who occupies land without the owner's consent is called a squatter, and the law bars the owner from bringing an action to recover the land after the expiration of 12 years. The squatter obtains this right to continued possession of the land because after 12 years of uninterrupted possession and use of the land the law treats him or her as having acquired what in the language of the law is called a possessory title, that is to say, a squatter's right to the land. This title comes about not as a result of the transfer of title from owner to squatter, as is the normal way of transferring title but, rather, from the squatter's adverse possession, that is to say, his possession against the owner's title. The effect of this is that the owner's title to his land is extinguished. The 12-year period during which an owner must seek to recover his land from a squatter is called the period of limitation.

If the occupation by a squatter during the 12-year period is to be treated as capable of extinguishing the title of the rightful owner, it must satisfy three major requirements. First, the land must be occupied in such a manner that in the eyes of the Courts it amounts to physical possession. Where, for example, the land is used only occasionally, as for planting and reaping cucumbers for six weeks in a year, this would most probably not be held to be physical possession. By contrast, building and occupying a house on the land, or ploughing up and cultivating agricultural land or putting up a notice stating "keep off this land" and enforcing the notice by fencing the land, are all acts that would constitute physical possession. Another requirement is that the land is used so as to sufficiently exclude use of the same land by the rightful owner. Where for example, a squatter uses another's land to tie and graze his cows it was held that this action did not prevent use by the rightful owner sufficient to constitute adverse possession. But total exclusion of the owner is not required. In an English case, where a squatter laid buoys in a creek belonging to another and charged persons using them, the Court held this to have sufficiently excluded the owner to amount to possession of the creek by the squatter. Probably the "strongest possible evidence" of adverse possession is enclosure of the land in question. But, land that is not enclosed may be adversely possessed. Nor is enclosure of the land enough, as where arable land is fenced off and not ploughed and put under cultivation. Further, to constitute possession of an area of land it is not necessary for the squatter to have made physical use of the whole area.

The second major requirement to acquire possessory title is that the squatter must show that he had intended from the commencement of the limitation period to take possession of the land in question. It does not matter whether in intending to do so he mistakenly believed himself to be the rightful owner. Nor is it required that the squatter ought to have intended, further, to specifically exclude the rightful owner from the land; what is required is intention to exclude all persons other than himself or herself.

A third major requirement for adverse possession is that the use to which the squatter has put the land must be inconsistent with the rightful owner's holding of the land for the purpose for which he or she intends to use it. In other words, the squatter's use of the land must prevent the rightful owner from later using the land for the purpose he or she intended it in the first place. Where, for example, a landowner had intended to eventually use a strip of land to dedicate as a highway, and a squatter had used this land for dumping old metal for more than the limitation period, the Courts ruled that since the use to which the squatter had put the land was not in conflict with the eventual construction of the highway, squatting in these circumstances did not constitute adverse possession.

Now, what of young Burke's claim to ownership of his father's abandoned property? In our opinion the acts of ploughing and cultivation done on a continuous basis by each individual squatter of the land of bananas and citrus and the exclusion of all others from use of the land are sufficient evidence of physical possession; the fact that each 10 acre plot is not fully in cultivation is not a bar to possession of the whole. And this possession took place without the consent of Mr. Burke or his successors in title. Our opinion, further, is that each and all of the squatters had intended in 1970 to take possession of the abandoned lands and to exclude all others; hence their division of the land in five 10-acre plots.

Further, bearing in mind the use to which Mr. Burke had first put the land, it is submitted that use by the squatters was inconsistent with Mr. Burke's use of the land for the purposes he intended. And, lastly, the squatters had taken control of the lands for more than 12 years before Mr. Burke' heir sought to recover possession. In these circumstances we would submit that Mr. Burke's title has been extinguished, his son is barred from taking action to recover possession, and Jonah, Adam, Abel, Angelo and Egbert have each acquired possessory title, that is to say, squatter's rights, each to the 10-acre parcel under his control.

In the case of Mr. Burke, the land was abandoned and the squatters took possession. Adverse possession, however, may occur in other ways. A squatter may force a rightful owner off his land and take possession himself. Or, a rightful owner may fail to take possession as, for example, under a Will, and a squatter does so in his or her stead. Or, a rightful owner grants a person a license to occupy land and that person remains in possession after the license has expired or has been revoked. Or, after the termination of a lease, the tenant remains on the land without the landlord's consent.

( Dr William Para Riviere is an Attorney-at-Law)

Copyright © William Para Riviere, 2010