Warner et Al v Thomas et Al
| Jurisdiction | Trinidad & Tobago |
| Judge | Delzin, J. |
| Judgment Date | 12 March 2009 |
| Neutral Citation | TT 2009 HC 44 |
| Docket Number | CV 1437 of 2007 |
| Court | High Court (Trinidad and Tobago) |
| Date | 12 March 2009 |
High Court
Delzin, J.
CV 1437 of 2007
Mr. Gregory Armorer for the claimants.
Mr. Colin Selvon for the defendants.
Real property - Possession — Claimant executors and legal personal representative of estate of deceased claiming possession — Whether defendant acquiring adverse possession — Whether defendant acquiring adverse possession — Real Property Limitation Act, s. 13 — Limitation period of 16 years within which to claim recovery — Finding that deceased husband of first defendant acquired adverse possession with ownership flowing to first defendant — Declaration that first defendant entitled to possession.
This claim is for an order for possession of land located at Balthazar Street, Tunapuna and a declaration of ownership of the fee simple interest together with an injunction in favour of the claimants who are the executors and legal personal representatives of Mary Peters. The claimants plead that Mary Peters owned the land by deed registered as No 4294 of 1942. By her will she bequeathed the property to Martha Warner who was also the legal personal representative of Mary Peters. Martha Warner died on the 6th October 1986 and by Grant of Probate the claimants are the legal personal representatives of the estates of Martha Warner and, by extension, Mary Peters. The claimants are therefore in law vested with the estates of both Martha Warner and Mary Peters. The Claim arises and is to be determined in the context of a Defence and Counterclaim that essentially relies on adverse possession of the subject land by the defendants and the deceased husband of the 1st defendant, Fred Thomas. The First defendant is the surviving wife of Fred Thomas and the Second defendant is the son of the First defendant but it is not pleaded that Fred Thomas is his father.
It is alleged at paragraph 7 of the Statement of Case that Fred Thomas was a tenant of the parcel of land and that he died on the 25th November 2004. By paragraph 7 it is further alleged that Mr. Thomas was the tenant of Martha Warner the “second deceased” who died on 6th October 1986. It is also alleged that from the date of death of Martha Warner Mr. Thomas refused to pay rent to Joyce Warner who was beneficially entitled to the premises by the will of Martha Warner. Accordingly, by this averment, it is specifically accepted that the tenant remained in possession of the premises and refused to pay rent for a period of 18 years.
It is not in dispute by the pleadings and no evidence was led to the contrary, that the 1st defendant is the wife of Mr. Thomas by marriage and that the 2nd defendant is her son. The claimants dispute that the 1st defendant lived at the premises since the death of Fred Thomas paying infrequent visits and only resided thereon after seeking to establish sanitary services to the property. It is not in dispute that the 2nd defendant is the son of the 1st defendant and now lives on the premises through the permission of the 1st defendant.
The claimants further rely on a written acknowledgement signed by the 1st defendant, and dated the 20th June 2006, by which the 1st defendant agreed to vacate the premises on the 20th July 2006. In breach of this agreement, the claimants allege that the defendants have remained in occupation and have since sought to demolish the old premises and erect a new structure on the property.
The 1st defendant admits signing the document but claims that it was signed under duress, thereby disputing the validity of the agreement.
The 1st defendant counterclaims for a declaration that she is entitled to an interest in the said parcel through her predecessor in title, her husband, Fred Thomas, who she alleges was in adverse possession of the premises for over 16 years at the date of his death. She further claims that she moved into the premises after her marriage on the 5th July 2001, and enjoyed undisturbed possession thereafter.
By the witness statement of Desmond Warner, admitted into evidence, he admits Fred Thomas refused to pay rent to Joyce Warner and only paid rent up to the death of Martha Warner in October 1986. (See paragraphs 11 and 12 of “DWI). Mr. Warner also did not deny nor was it in dispute that Mr. Thomas lived on the premises until he died in 2004. Accordingly there is in law an admission that Mr. Thomas occupied the premises without paying rent and undisturbed for more than 16 years prior to his death.
Accordingly, in order to maintain an action to recover land occupied in the accepted factual matrix, the claimants must prove, on a balance of probabilities that the provisions of the Real Property Limitation Act Ch 56:03 do not apply.
Section 3 of CHAPTER 56:03. REAL PROPERTY LIMITATION ACT states:–
S. 3. No land or rent to be recovered but within 16 years after right of action accrued
No person shall make an entry or distress, or bring an action to recover any land or rent, but within sixteen years next after the time at which the right to make such entry or distress, or to bring such action, shall have first accrued to some person through whom he claims, or if such right shall not have accrued to any person through whom he claims, then within sixteen years next after the time at which the right to make such entry or distress, or to bring such action, shall have first accrued to the person making or bringing the same.
In order to determine whether there is a right to bring an action to recover the land by the claimants, several issues need to be determined.
The issues are: (1) what was the nature of the tenancy,
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(2) whether Fred Thomas was in adverse possession when he refused to pay rent and remained in undisturbed possession until his death in 2004 and
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(3) what is the current state of the title of the claimants.
The claimants oppose the defendants' Counterclaim of the plea of adverse possession by the averment that the possession of the defendants was without animus possedendi. (See paragraph 2 of the Defence to the Counterclaim).
In order to determine the question of adverse possession and the application of the Real Property Limitation Act the first step would be to identify the nature of the undisputed tenancy. Fred Thomas paid rent, on the evidence, up until October 1986 and thereafter remained in possession without paying rent up to the date of his death in 2004.
It is trite law that a tenant who holds over without paying rent, does so either as a tenant at will or tenant at sufferance dependent on whether there can be implied consent by the landlord, consent being required for the creation of a tenancy at will. Consent may be implied by acquiescence.
See: Meye v. Electric Transmission Limited [1992] Ch. 290.
The question of the nature of the tenancy affects the calculation of the time period that must elapse in undisturbed adverse possession sufficient to claim the benefit and protection of the Real Property Limitation Act.
S.8 of the Real Property Limitation Act, Ch 56:03 states:–
S. 8. Tenant at will
When any person shall be in possession or in receipt of the profits of any land, or in receipt of any rent, as tenant at will, the right of the person entitled subject thereto, or of the person through whom he claims, to make an entry or distress, or bring an action to recover such land or rent, shall be deemed to have first accrued either at the determination of such tenancy, or at the expiration of one year next after the commencement of such tenancy, at which time such tenancy shall be deemed to have determined
In Goomti Ramnarace (2001) 59 W.I.R. 511 at paragraphs 6 to 19 the Privy Council discussed the concept of a tenancy at will as opposed to a licence in much the same context as the present. The learning informs both the law on determining the nature of the tenancy and the approach of the Court to the evidence adduced. As a result, it is in my view necessary to refer to the judgment in extenso.
“[9] The Ordinance substantially reproduces the provisions of the English Real Property Act, 1833. The limitation period for an action to recover land is sixteen years, and the period starts when the right to bring the action first accrues to the person bringing the action, or someone through whom he claims; s. 3 of the Ordinance (corresponding to s. 2 of the 1833 Act). Neither the Ordinance nor the 1833 Act contains any reference to the concept of adverse possession, which became enshrined in the English statute by s. 10(1) of the Limitation Act, 1939, but this was no more than a statutory enactment of the case law on the earlier English Limitation Acts (see Moses v. Lovegrove [1952] 2 Q.B. 533 at 539, per Sir Raymond Evershed, M.R.). In these circumstances, their lordships do not doubt that the concept is incorporated into the Ordinance also.
[10] Generally speaking, adverse possession is possession which is inconsistent with and in denial of the title of the true owner. Possession is not normally adverse if it is enjoyed by a lawful title, or with the consent of the true owner. Section 8 of the Ordinance however (reproducing s. 7 of the 1833 Act) provides that, where a person is in possession of any land as tenant at will, the right of the true owner to bring an action to recover the land ‘shall be deemed to have first accrued’ at the expiration of one year from the commencement of the tenancy, at which time the tenancy ‘shall be deemed to have determined’.
[11] It follows that if a tenancy at will is determined during the first year the owner's right of action accrues immediately; otherwise it accrues automatically by virtue of s. 8 at the end of the first year, and any later determination of the tenancy is ineffective for limitation purposes unless a new tenancy is created; see Day...
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