The New Today

Commentary

Property title reform long overdue for Grenada

I wish to begin to this paper by applauding the Grenada Bar Association (GBA) for their vision in establishing the 1st Herbert Blaize Public Legal Education Forum – a distinguished son of the soil and a former Prime Minister of Grenada. The Topic proposed: Possessory Titles Bill- A Backward or Forward Step for the people of Carriacou and Petite Martinique?

It was Wednesday, May 18, 2016 this Bill was widely debated in Carriacou, as it was contemplated as a Carriacou & PM Bill by the framers to address the property tile issue which was regarded as particularly troubling, for the Islands.

In addition, to the CPM land ownership problem, the Limitation of Actions Act Chapter 173, so the argument runs, had also posed difficulties in the interpretation of several fundamental provisions, in particular ss 4 & 27 of the Act. These difficulties may be summarized thus:

(i.). To establish adverse possession to any land was seen as very difficult (see ss 4 and 27 of the Limitations of Actions Act Cap 173

(ii). The title arising from adverse possession was regarded at best, defective at worse as vagabond title.

(iii). The title is “not good against all the world” because it can be challenged at any time.

(iv). The provisions in the Limitation Act are difficult to understand, even to the citizens of average learning.

And

(v). To obtain a paper title for property in CPM was extremely difficult because of the close family and community ties where everyone live as one. Patterns of ownership of land was based on passing land on by word of mouth from generation to generation.

This was very troubling when examined in the context of the sixty (60) rule to establish a good root of title. Such are the conditions prior to the coming into operation of the Possessory Titles Act of July 16th 2016.

THE POSSIBILITY OF POSSESSORY TITLE
This Act, according to its framers had four (4) major objectives in mind. Firstly, to give paper title for adverse possession; secondly, to give greater protection to the adverse possessor; thirdly, to take away the property from the person with the paper title and fourthly, to impose an assertion of legal ownership on the adverse possessor/squatter.

In short, the general purport and effect of the PTA was essentially to facilitate the obtaining of property by virtue of adverse possession which involved the coexistence of two essential elements i.e. the assumption of factual possession accompanied by the mental element (animus possendi) directed toward the true owner.

No one seriously denies the possibility of possessory title, the question that arises is what forms might this take? The answer seems to be that there are varying situations that may give rise to establishing legal ownership of property.

To establish adverse possession, so the argument runs, the trespasser/squatter’s occupation of the land must contain the following elements:

  • hostile
  • actual
  • open and notorious and
  • exclusive and for a certain period of time twelve (12) years.

This paper does not intend to discuss each of these elements in any detail, but suffice it to say that, if a person occupies another person’s land for a certain period of time(without paying rent e.g.) and the owner takes no action to remove him/her, that person can obtain legal title to the property.

Our courts have held that the property holder (in a manner of speaking) has fallen asleep on his claim and is caught by the limitation period.

ADVERSE POSSESSION CLAIMS HAVE ENDED UP IN COURT
It is undeniable that adverse possession claims (especially from CPM) have occupied the mind of our Judges of the High Courts and Court of Appeal in the past.

However, since the passage of the PTA 2016, possessory titles claim have multiplied significantly in the jurisdiction to the extent that it has been increasingly argued that the question posed by the GBA some seven (7) years ago as to whether the PTA was a backward or forward step for CPM, can now be answered not only for CPM but also Grenada as well.

Our courts have applied a rigid test to qualify as an ‘adverse possessor.’ At the time of writing this paper, some eighteen (18) amendments have already been proposed to the 2016 PTA.

While it may be premature to predict the impact of these amendments, one conclusion about the Principal Act is the unlikelihood of significantly addressing the crucial question of land Registration.

Indeed, in the recent judgment of The Hon. Mde. Justice Agnes Actie in Claim No. GDAHCV 2019/0494, she stated @ para 51 of the judgment:

“This case is a typical example of the inconclusiveness and unreliability of the deed paper title system which does not guarantee title to land. It is merely a record of registration but not conclusive proof of title and further highlights the need for the Land Registration System in this jurisdiction to deal with the myriad land disputes filed in the court.”

The Hon. Mr. Justice Glasgow has also expressed similar misgivings in two (2) undecided cases viz; Case No. GDAHCV 2021/0155 & Case No. GDAHCV 2022/0014, wherein he stated: “I will send these matters to Mediation rather than the court seeking to settle who owns what in these family claims. As Judge, in these cases I am not prepared to embark on destroying the fabric of the family.”

SUBSTANTIVE PROVISIONS – A NEW PROPERTY TITLE CONVEYANCING ACT
What is clearly required is a vehicle which is more far reaching in scope and content than patch work reforms and amendments.

If one is to examine the scope and content of these amendments carefully, then, to my mind, the ground for a New Property Title Conveyancing Act is perfected.

Essentially, this Act will bring about the gradual surreptitious erosion of the sixty (60) year rule to prove a good and marketable root of title. Clearly the judicial pronouncements in favour of this point of view are not equal to its fundamental importance.

THE PROCEDURE EXPLAINED
To begin with, an application must be made to the High Court. This application must be advertised in the Government Gazette, local Newspapers, Consulate office and Embassies in the Diaspora, which will say who is applying, where the property is etc. and asking anyone who has an interest in the property or for that matter objecting to the application to file such an objection within a specified time in the High Court.

There will be a hearing by the Judge who will determine whether the property should be registered in the name of the person applying, or in any other person.

Once the Order is made, and the property is registered in the person’s name, this person now has a good title to the property that is good against all the world. It is anticipated, as is the case which presently obtains with PTA, there will be many applications.

Under this new system, it is proposed that a Judge of the High Court may be required to sit in Carriacou and PM to ease the backlog.

Under this new dispensation, it is also contemplated that anyone who already possesses a “good and marketable title” under the Common Law System, will not be required to apply for registered title under the new system.

The two systems ought to properly run side by side (in the initial phase), until eventually all property In the State will be registered under the new system.

PROCEDURAL HAZARDS AND SAFEGUARDS
So far this article has concentrated on a smooth transition to Registered Conveyancing as opposed to unregistered conveyancing.

Under the new system, the original title deeds ought to be kept in the Supreme Court Registry. For the naysayers who may not have had notice of the application and fear that they may be deprived of their fee simple absolute in possession, we contend that certain safeguards must be applied as follows: First, even after the property is registered, once the objection is made within the time specified in the Act, or before the property is transferred to the applicant, then the property my still be eligible to be re-registered in the true property owner’s name.

Second, should the true owner find out after the specified time, and the transfer has already been effected, they will be entitled to protection to the extent that compensation will be awarded for the fair value of the land.

Under this new system all is not lost. Third, persons who register land under the new system, will be required to pay a fee which will be utilised by the Government for the purposes of obtaining insurance to protect/insure the title registered.

Fourth, in the case where the true owner did not have notice of the application at all, and the limitation period has run out; i.e, too late to return the lands, the defaulting party will be compensated out of the special fund created for that purpose.

CONCLUSION
It is sometimes said that the function of reviewing and making legislation was one entirely for Parliament. But, it is equally often asserted that the force of public opinion in opposition to a Statute, may achieve much the same result as the judicial review of legislation.

In so far as the PTA in question, remains the law, it lingers on amidst bumps and hurdles, but dangerously uncertain as to where the dividing line may be located at any one time as to who owns what.

In any event, title to land should never be a matter of line drawing. It is the view of the writer, the proposed New System will bring certainty to the property ownership/title in Grenada and more so in Carriacou and Petite Martinique.

In the PTA’s short history, the moral feelings of the time and the society to which it applies, it is felt whether in the short run or long run it was a backward step. Indeed, since the passing of the legislation, we have seen a floodgate of applications before the courts which regrettably have resulted in legal contentions (in the main between families) as opposed to certification of ownership which the PTA was designed to achieve.

The answer seems to lie within a New Property Title Conveyancing Act which is long overdue.

George Prime is a former Magistrate and currently practicing in in private as an attorney-at-law