Here’s a term that terrifies every landowner – “adverse possession.”
Colloquially referred to as “squatter’s rights” it is usually used as a precursor to an allegation that you, the rightful landowner, are no longer entitled to your land.
Adverse possession covers a wide spectrum of actions. However, this article centres on the common phenomenon of a trespasser who enters the land of another and after the passage of time lawfully gets the legal title without having to compensate or pay the landowner for the land.
These squatters claiming title by adverse possession need to meet certain conditions in order to succeed with their claim.
Generally speaking, they need to demonstrate to the satisfaction of a court of law, on a balance of probabilities, that:
- they entered the land without the permission of the true owner;
- they occupied and possessed the land with the intention to claim ownership, to the exclusion of all others (including the landowner);
- their occupation was open and notorious in the sense that the landowner could look and see that trespassers were in occupation; and
- the occupation of the land was continuous, for a period not less than 16 years.
There are countless deeds of conveyance in existence which state the seller of the land acquired title by adverse possession. It’s a lawyer’s nightmare.
To acquire title by adverse possession, recourse to the High Court is needed to obtain certain Court Orders granting the squatter the legal tile to the land.
Eventually, the squatter will be issued with a Certificate of Title for the land. Where this does not exist, any land sold by “deed” on the basis of a mere claim of “adverse possession” is problematic in the least, as legal title has not yet been vested in the squatter.
Landowners, particularly those with large tracts of agricultural or forested land, need to be constantly vigilant. Checks to ensure no squatters have moved unto your lands should be done frequently. Getting them off as soon as they are discovered would be prudent.
As boldfaced as it seems, squatters regularly invest in permanent and semi-permanent structures to make it more difficult to remove them.
Often too, they infiltrate the land in droves. It may sometimes take nothing less than a court action to remove them, and to stop the 16-year time frame for occupation from running.
If you want to buy land, always have a proper title search done to verify the seller’s title. Land being sold at prices drastically below the norm, for cash only, are usually tell-tale signs something is very wrong with the seller’s title.
Obtaining the legal title can take years in the court system, and can be quite expensive. The squatters (or the persons they “conveyed” the land to) would prefer to sell off lots at “bargain” prices, instead of making the commitment to get their title in order.
And yes, as incredible as it sounds, there are many parcels of land being sold throughout Trinidad and Tobago, sometimes as land developments with multiple sub-divided lots, on the basis of defective titles originating from squatting. The spiralling and almost unattainable cost of buying a lot of approved land for residential use is one of the reasons why these “developments” flourish.
What does it mean for a buyer who purchases one of these bargain lots? For one thing, you would not own the land, in the sense that you would not have the legal title to the land. Further, your occupancy of the land may not be secure: the rightful landowner may turn up wanting their land.
Our laws are based on English law. Many centuries ago in England, the laws on acquiring land by adverse possession were designed as a reward for bringing unused or un-inhabited lands (particularly farm lands) into productive use.
Whatever might be the modern rationale for depriving rightful landowners of their lands after the effusion of time, without compensation, our laws on adverse possession remains firmly entrenched and appear to be at no risk of being removed from the law books.
Buyers of land need to be very careful about what they are buying (caveat emptor), and landowners need to make frequent checks to ensure squatters have not moved in. When problems arise, guidance ought to be immediately sought from a reputable and experienced attorney on the way forward.
© Neela Ramsundar, LL.B (HONS), L.E.C is Civil Litigation Attorney at Law & Certified Mediator.
Disclaimer: The contents of this article are for general informative purposes only. It does not provide legal advice and does not create an attorney – client relationship. For legal advice, please contact an Attorney-at-Law of your choosing directly.