by Sir Lawrence A Joseph
Recently, the Possessory Titles Bill of 2016 was passed by both Houses of Parliament. In order to become law the Bill has to receive the Governor–General’s Assent, has to be gazetted and has to be proclaimed into law by the Governor–General on an appointed day. Whilst the passage of the Bill in Parliament is a step in the right direction, questions seem to arise regarding the practical nature of this piece of legislation.
The Bill seeks to give good title to land to persons who claim to be in adverse possession of such land continuously over a period of at least 12 years. In fact, the Bill further enhances section 4 of the existing Limitation of Actions Act which was enacted here in Grenada since 1897. The Limitation of Actions Act merely puts everyone on notice that the person claiming land is in possession and that no one without better title should trespass. However, this possessory title is usually not accepted by financial institutions because it is considered to be risky. The present Bill seeks to give good title to an applicant who has been in adverse possession over a continuous period of at least twelve years and has complied with the provisions of the Bill. It is anticipated that with this statutory title, financial institutions would be more amenable to allow the land in question to be used as security.
Whilst it is quite understandable that a Bill which seeks to to give ‘a sword’ to an applicant instead of ‘a shield’ should lay down strict and comprehensive procedures for such a sword to be given, it appears that the present Bill goes overboard in order to do so. There seems to be no problems regarding the conditions which enable an applicant to complete an application for a certificate of good title to land. The Bill provides that the applicant must make an application which is supported by affidavits from the applicant himself or herself and 2 other persons which adequately describe the land in question as evidenced by a plan and must include the facts of the adverse possession. The application must then be published in the Gazette and in two issues of local newspapers; must be posted in the Registry and in the Magistrate’s Court and the notice must be served on owners of adjoining properties.
It is after an application is made to the Registrar and other conditions are followed that certain concerns seem to arise. Section 10 of the Bill makes it mandatory that once there is a valid application to the Court, then the Registrar has to file a suit in the Court for the application to be heard before a Judge. This means that the matter has to be set down on an appointed day for a court hearing and for the judge to determine the matter and make an appropriate Order. This latter procedure seems to be unnecessary in cases where there are uncontested applications. This is especially the case as the court system is always clogged up with hundreds of matters. Presently applications before the High Court take many years before they are heard by the Court. Moreover it seems to be unfair for applicants living in Carriacou or Petite Martinique and in other parts of the country to have to trek all the way to the High Court in St George’s in order to comply with the provisions of the Bill in uncontested situations.
It appears that it would be more practical to give the authority to the Registrar to grant the Certificate of Possessory Title to the applicant in situations which are not contested by any other person. It should be only in a situation where there are contested applications that the matter should be set down for hearing before a Judge. This same principle is presently being applied where applications are made for a Grant of Letters of Administration or a Grant of Probate of a Will. In such situations the Registrar has the authority to make such Grants.
Additionally, it does not seem rational that a person who is claiming land from the State after being in possession for a continuous period of at least 60 years cannot be given good title after an appropriate application is made. The Limitation of Actions Act enables this situation to be used as a shield against the State. It is most difficult to see why good title cannot now be given in such a situation.
It is posited that once more persons are enabled to obtain good titles to land in the country financial institutions would be more minded to allow those titles to be used as security. This in effect would enable more people to be in better positions to obtain loans for the purpose of building their own homes. This would then create a multiplier effect by way of stirring up more economic activities in the state for business institutions and creating more employment opportunities. It is therefore recommended that the appropriate amendments be made to the Bill in order to make it more practical.