Bannerman Town, Millars and John Millars Eleuthera Association v Eleuthera Properties Ltd

Under the Quieting Titles Act 1959, a certificate confirms title established under ordinary legal principles. The Act cannot create title where neither documentary nor possessory title is proved. A conveyance is not a good root of title where the wider title documents reveal that the grantor had no title, and selective omission of title covenants may cast doubt on the title. Joint possession requires a shared common understanding or arrangement, not merely separate uses and intentions. Factual possession requires acts appropriate to the land. Surveys, boundary clearing, private signs, aerial photographs and one eviction did not amount to possession of a large undeveloped tract.

Eleuthera Properties Ltd petitioned under the Quieting Titles Act 1959 for a certificate of title to approximately 2,086 acres in Eleuthera. It relied on documentary title derived from a 1959 conveyance and, alternatively, on possession from 1988. The Association claimed possessory title based on the historic use of the land by descendants of former servants and slaves of Ann Millar, relying on alleged joint and vicarious possession.

Hepburn J granted the certificate to EPL. The Court of Appeal unanimously rejected EPL’s documentary title, but by majority upheld the rejection of the Association’s claim and found that EPL had acquired possessory title. Adderley JA dissented on possession. The Association appealed to the Board. The central issues were whether either claimant had established documentary or possessory title and how the statutory machinery affected competing claims.

Disposition. Lord Briggs delivered the Board’s single judgment. The Association’s appeal was allowed in part. The petition was dismissed and no certificate of title was granted.

1. Statutory jurisdiction. The Quieting Titles Act 1959 provides machinery for investigating title but does not empower the court to create title. It may perfect an incomplete title where competing claims have been notified and barred, but the certificate must reflect title established under legal principles outside the Act. Because a certificate is generally effective against the whole world, save for fraud, the court must exercise caution before granting one. The approach was consistent with Armbrister v Lightbourn [2012] UKPC 40 and Nova Scotia (Attorney General) v Brill [2010] NSCA 69.
2. Documentary title. A good root of title must identify the land, show disposition of the whole legal and equitable interest, and contain nothing casting doubt on the title. The absence of title covenants is not invariably fatal, but in this case the vendor was neither trustee nor mortgagee and had selectively withheld covenants for the Property. The pre-1959 documents disclosed under the Act showed that the conveyors relied on gifts in Ann Millar’s will which were void for perpetuity. Davis therefore had no documentary title, and no possessory title because he had not occupied or possessed the Property. The 1959 conveyance consequently passed no title.
3. Association’s possessory claim. Possession requires factual possession and an intention to possess. A mistaken belief of ownership may satisfy the general intention requirement: Perry v Clissold [1907] AC 73, J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419 and Roberts v Swangrove Estates Ltd [2008] Ch 439. But joint possession of the whole land requires an agreement, arrangement or shared common understanding between the occupants. A mere aggregate of separate, uncommunicated intentions is insufficient. Vicarious possession likewise depends on an agreement or arrangement: Bligh v Martin [1968] 1 WLR 804. The Board would not interfere with the concurrent findings that the alleged common intention had not been proved.
4. EPL’s possessory claim. Since no prior title had been established which required barring, EPL did not need to prove adverse possession for the full limitation period. It nevertheless had to prove conduct amounting to possession in law. Factual possession is fact-specific and depends principally on the characteristics of the land. Boundary clearing, occasional private-property signs, aerial photography and the removal of one occupier from a small part of the Property fell well short of possession of the whole. The Board applied the approach in Simpson v Fergus (1999) 79 P & CR 398.
5. Further statutory points. The Board would, if necessary, have construed the transitional proviso in section 16 of the Limitation Act 1995 as applying only to subsection (1), treating the reference to the section as a drafting error, following the approach in Inco Europe Ltd v First Choice Distribution (A Firm) [2000] 1 WLR 586. That issue was unnecessary to the result. The Board also concluded that the bar created by section 7(2) of the Quieting Titles Act ceased when the proceedings ended.

• Privy Council. The Association’s appeal was allowed in part. EPL’s documentary and possessory claims failed, the petition was dismissed, and no certificate of title was granted.
• Court of Appeal of the Commonwealth of the Bahamas. On 21 April 2016, the court unanimously rejected EPL’s documentary title. By majority it upheld the rejection of the Association’s claim and found that EPL had possessory title. Adderley JA dissented on both possessory-title issues.
• Trial court. Hepburn J held on 30 May 2014 that EPL had a good documentary root of title, rejected the adverse claims, and granted EPL a certificate of title.