Lares v Lares and others (Trinidad and Tobago)

Adverse possession requires both factual possession, meaning sufficient physical custody and control, and an intention to possess for the claimant’s own benefit. Possession is not adverse where it is enjoyed as a lawful owner or with the owners’ consent. Under the Real Property Limitation Act, a co-owner may acquire title against other co-owners through exclusive control for the statutory period without consent and with the requisite intention. An appellate court will not ordinarily disturb concurrent factual findings absent special circumstances. A procedural objection cannot normally be raised for the first time on a further appeal after the issue was contested at trial without objection.

The appellant and eight siblings were registered freehold owners of a property inherited from their mother. Six siblings sought partition and sale. The appellant counterclaimed that she had acquired exclusive title to the whole property or, alternatively, the upstairs portion, by adverse possession.

The High Court of Trinidad and Tobago found for the claimants. The Court of Appeal affirmed that decision. The appellant appealed as of right to the Privy Council, challenging the findings on factual possession and intention to possess and arguing that the issue of factual possession had not been properly pleaded.

1. The Board dismissed the appeal with costs. The appellant had not argued that special circumstances justified departing from the settled practice against interfering with concurrent findings of fact by the courts below.
2. Adverse possession requires legal possession comprising two elements: factual possession, involving a sufficient degree of physical custody and control, and an intention to exercise that custody and control for the possessor’s own benefit. Possession is not adverse where it is enjoyed as a lawful owner or with the owners’ consent. The Board adopted the principles stated in JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 and referred to Buckinghamshire County Council v Moran [1990] Ch 623.
3. Section 14 of the Real Property Limitation Act displaces the common-law rule that one co-owner’s possession is deemed to be possession of the others. A co-owner may therefore acquire title against the other co-owners by exclusive, non-consensual control for the statutory period with the intention of possessing for her sole benefit. The Board referred to Goberdhan-Watts v Boodoo Civ App No P014 of 2016.
4. The Board did not decide whether possessory title can be acquired to part only of a building. It assumed that proposition, identified in Ramroop v Ishmael and Heerasingh [2010] UKPC 14, in the appellant’s favour. It also assumed that the pleaded description of the upstairs portion was sufficiently precise.
5. The trial judge found that the appellant had not exercised, or intended to exercise, exclusive control of the upstairs premises until after her brother’s death in 2004. Family members had paid bills, retained access, and treated some household items as common property. The appellant had also admitted that she occupied the property as a co-owner and did not begin acting as exclusive owner until after 2004. The period was therefore insufficient to establish adverse possession.
6. The claimants’ defence was not a bare denial. It gave particulars of occupation and payments and advanced a positive case of tacit permission. The pleading objection therefore failed under rule 10.5(4) of the Civil Proceedings Rules 1998. The complaint was also raised too late, since the issue had been contested on its merits at trial without objection. The Board would not redraw inferences from the evidence, particularly oral evidence, on a further appeal.

1. Privy Council: appeal as of right dismissed with costs.
2. Court of Appeal of the Republic of Trinidad and Tobago: appeal heard on 11 June 2018 and dismissed, affirming the trial judge’s findings and conclusion.
3. High Court of Trinidad and Tobago: Boodoosingh J found in favour of the claimants in a judgment dated 19 July 2016.