Adverse possession (commonly called “squatting”) is probably a term that you’ve heard before. It sounds simple enough but what exactly does adverse possession mean?
Well, the clue is in the name. Adverse possession is the possession of a portion of land by a person (let’s call that person the “occupier”) which is adverse to the interest of the landowner.
Basically, it’s where the occupier occupies land that that they do not legally own.
Adverse possession is very specific in that it is dependent in part on the extent of occupation. This means that adverse possession could apply to a few square feet or several acres – it all depends on how much land the occupier possesses.
Adverse possession may take place in different ways. Examples of adverse possession include a neighbour moving a chain link a few feet into your land (and so, extending his boundaries), a stranger entering your land and planting crops or rearing animals, a stranger entering your property and constructing a structure or even a joint owner of property acting exclusively to the other joint owner’s (or owners’) interest.
For an occupier to successfully claim adverse possession, they must prove three elements, that the possession was open, peaceful and adverse:
They’ve had undisturbed and open occupation of the property.
The occupier must have made use of the land in a way that is open to, but not interfered with by the public (e.g. undisturbed use that is not in secret), whilst ensuring they are making full use of the land.
This may be through building on the land, renting out any structures on the land, fencing the land off or planting crops or rearing animals on the land – actions which the landowner may be expected to take. The focus of this limb is that the use of the land is sufficient and not done in secret. The more the occupier has done with the land openly, the stronger and more convincing his case may be.
There are certain limitations and not every act of possession taken in respect of the land of another is enough. These are considered on a case-by-case basis and very much depends on the facts.
2. The occupier intended to occupy the land as his own, with the intention of excluding the lawful owner.
This ultimately means that the occupier must show that there was a clear intention to possess the land. What this means practically is that they must show that they were taking the land for themselves, without the owner’s consent.
Examples of ways that this could be shown is through, changing or adding locks to any structures, fencing the land, farming or rearing animals on the land, construction or renovation on the land or of structures on the land. This is not an exhaustive list – what amounts to possession is heavily dependent on the circumstances.
If the occupier acknowledges the owner’s title at any point (for example, through paying rent, signing a lease agreement, or even in letters), adverse possession will likely fail since acknowledgment means that the squatter has not occupied the land as his own.
3. Lastly, the laws of T&T require the occupation to have been for a continuous 16-year period for privately owned land or 30 years for State owned land.This is a bit more straightforward. Sometimes this may be difficult to prove depending on the acts of possession which are alleged to have taken place on the land. Things like photographs of the acts of possession (animals reared, crops planted, construction etc), receipts for construction, delivery slips for material, surveys showing the occupied area or photogrammetric reports (reports which interpret aerial photography taken every few years by the Ministry of Agriculture) or statements from third parties are the usual ways to prove the length of occupation.
When the occupier meets these criteria, the legal owner is said to have been dispossessed of the land and he loses the ownership or his rights over the land in question. This is permitted by an Act of Parliament. The occupier can rely on adverse possession both in defence of any claim made for possession of the land by the legal owner or to make a positive claim for the land.
The public may think that adverse possession doesn’t apply to property jointly owned by family members. It does. Your family member can, if the criteria above is met, adversely possess you of the land. Your name being on the property’s Deed or the Certificate of Title is not protection against adverse possession.
Take the example of inherited property (or any jointly owned property really) where one owner resides in the property and the other does not. If the criteria above is met (such as the owner resident in the property making decisions about the property or renovating it all without the knowledge or permission of the other owner), that person can adversely possess the other co-owner (even where that’s their family member) of the property.
This becomes easier where joint owners are lulled into a false sense of security because they may think that because their name is on the legal title to the land it’s theirs without exception.
Though it may seem unfair that an occupier can effectively ‘steal’ legal title to someone else’s land, especially in the case of jointly owned land or jointly owned land between family members, adverse possession helps ensure that land is used efficiently, so land should therefore be owned or guarded by those who use it.
But what steps can you as a landowner take to ensure you are not dispossessed of your land?
Ensure that your boundaries are known and that you’re in possession of a survey approved by the Director of Surveys which shows these boundaries.
Regularly check up on your land to ensure that nobody is encroaching on it. You can also consider fencing your land. This isn’t always feasible, especially in rural areas where persons may likely own larger parcels of land, so keeping an eye on your land is key!
If someone is on your land, take photographs of everything and see a lawyer. Although it may seem like a good idea to destroy the crops or bulldoze any occupier’s structure on the land instead, you would likely be opening yourself to the risk of being sued for damages, even if you’re ultimately successful in regaining possession.
If you have tenants, be sure to have a signed tenancy agreement in order and to collect your rent from them during the tenancy. Keep copies of everything!
If you have given permission for someone to occupy your land/property (other than by rental), make sure you have this in writing, acknowledging you as the owner or lawful occupier of the property. This does not need to be in the form of a lease or rental agreement but could simply be a licence agreement.
If you’re purchasing land and are concerned about the risk of squatters you should ensure that you receive all these documents from the vendor and physically visit the land to determine that there are no occupiers. You may also wish to hire your own surveyor to confirm the boundaries and to identify any encroachments or a firm to conduct a photogrammetric survey. The interpretation of the historical aerial photographs may be able to identify whether there have been any encroachments on your land.
Photogrammetric reports are not fool proof, however. Due to the height at which photos are taken certain activities and details (planting crops, rearing animals, the types of crops or materials construction) are not visible. Remember these reports rely on photographs taken with a top-down view so any activities which are happening under the cover of any vegetation on the land would also not be visible. The extent to which they may protect against or support a claim of adverse possession is very dependent on the type of activities which have been happening.
In the case of jointly owned property, show interest in your property. Don’t assume that a co-owner is acting in your interest. As uncomfortable as it may seem (especially in the case of family-owned property), keep records showing your involvement in the daily runnings of the property and your communications with the person who occupies the property.
I’ve been living on someone’s lands for just over 16 years. Before the 16 year period passed, the owner sent me a Notice to Quit and a pre-action protocol letter (a lawyer letter) both of which I’ve ignored. Can I claim adverse possession?
Q: Can the 16 years of undisturbed occupation be accumulated by a series of squatters?
A: Yes! Let’s say for example an occupier and his children have lived on a parcel of land for 12 years. That occupier then passes away and his children continue to live on the same portion of land. 5 years later, the lawful owner tries to recover possession from the occupier’s children. The children only occupied the land for 5 years but, together with their parent, have had possession of the land for 17 years. They can rely on their parent’s occupation of the land to meet the 16-year requirement.
Q: My neighbour owns the land which borders mine but is encroaching on my land. How can he claim adverse possession of my land if he is a landowner himself?
A: Landownership doesn’t matter. What matters is whether the occupier is in occupation of land which he does not own. This means that if your neighbour exceeds his boundaries, he is an adverse possessor and can gain lawful possession of that portion of your land if the requirements are met.
Q: I’ve a tenant to whom I gave a notice to quit some years ago. Can he claim adverse possession?
A: Yes, if 16-years has passed since the expiration of the period stated in the notice to quit, that is, the date on which the tenant had to leave the land.
Q: I’ve some squatters living on my land for some years. They’re offering to pay rent and sign a tenancy agreement. Is this enough?
A: The acknowledgment of the landowner’s title to the land is fatal to any claim of adverse possession. Any tenancy agreement should be kept current and clear as to the extent of the occupation. Rent should be collected religiously (if missed, the 16-year period could start) and checks should be made that occupiers haven’t exceeded the scope of the agreement.
Q: I’ve a squatter on my land. He keeps promising to move and hasn’t. It’s been years and I want to use my lands. Can I just bulldoze his house? How do I get him out?
A: Although retaking possession of the land is one way to stop adverse possession, it is very likely to result in a lawsuit against you. You can also get an acknowledgment of title (through a tenancy or licence agreement), have rent paid (where there’s an agreement in place) or sue him.
Q: Obviously, the squatter is just going to say that he’s been there for over the 16-year period. How am I supposed to prove that he hasn’t?
A: Photogrammetric survey reports or surveys are an objective source of evidence about what’s been on the land. These reports are subject to some limitations and we discuss these here. Statements from neighbours may also be useful to say what has been happening on the land and when the occupier entered on the land.
Q: Since Caroni (1975) Ltd closed, my family and I have been living on some of its lands. Caroni (1975) Ltd is State owned. Can I claim adverse possession against the State?
A: Adverse possession operates against the State too but the requisite period is 30 years, not 16.
Q: I’ve been living on someone’s lands for just over 16 years. Before the 16 year period passed, the owner sent me a Notice to Quit and a pre-action protocol letter (a lawyer letter) both of which I’ve ignored. Can I claim adverse possession?
A: Once you can prove all the requirements that must be met (listed above), then probably. Although an owner of land can stop the 16-year period from running, to do this they would either need to retake possession of the property or file an action in High Court for the possession of the property and to get you out.
Remember the mere fact of filing an action doesn’t stop time from running – it must result in an implied or express confirmation of the landowner’s title (even if the judgment itself doesn’t result in the landowner’s recovery of possession).
Q: What happens if someone has been occupying my land for over 16 years? What can I do?
A: In that case the law allows the squatter to dispossess you of your legal title to the land.
Last updated on 10 June 2023.