Carla Anita Cecilia Braynen Turnquest v Water and Sewerage Corporation (Bahamas)

In a trespass and possession claim concerning unregistered land, the claimant need prove only a better right to possession than the defendant. Vendor-and-purchaser standards of good or marketable title do not apply. A defective documentary title may prevail against a possessor with no documentary title, but it must confer a right to possess the specific land.

Although section 3(4) of the Conveyancing and Law of Property Act 1909 does not directly govern trespass, its prescribed period limits how far back the claimant may be required to deduce title. Adverse possession requires factual possession and an objectively manifested intention to possess exclusively throughout the limitation period. Installations of unknown date and evidence unconnected to the land are insufficient; offers to purchase or lease, and payment for private use, may contradict the required intention.

Mrs Turnquest claimed to have inherited land at Mangrove Cay from her father, whose title depended on a 1963 conveyance from his grandfather’s estate. WSC had no documentary title but had placed water-storage tanks and associated apparatus on the land. Mrs Turnquest sought damages for trespass and delivery up of possession, while WSC relied on adverse possession.

In December 2022, the trial judge dismissed the claim because the 1963 conveyance was not a good root of title and did not adequately identify the land. The judge alternatively accepted that WSC had occupied the land since at least 1983. On 5 December 2023, the Court of Appeal reversed that decision and held that Mrs Turnquest had the superior documentary title and that WSC had not proved the necessary intention to possess.

The appeal concerned whether the 1963 conveyance sufficiently established a possessory title without proof of the earlier chain, whether its description included the disputed land, and whether WSC’s installations and conduct proved adverse possession for the required period.

Lord Snowden delivered the Board’s single judgment.

1. Disposition. The appeal was dismissed. The Court of Appeal had reached the correct result on both documentary title and adverse possession.
2. Relative title. Under Perry v Clissold [1907] AC 73 and Ocean Estates Ltd v Pinder [1969] 2 AC 19, title in litigation concerning unregistered land is relative. A claimant in trespass need prove a better right to possession than the defendant, rather than good or good marketable title of the quality required in a sale. However, the Court of Appeal stated the rule too broadly: a documentary title must confer a right to possession and must relate to the specific land in dispute. Conveyancing defects do not necessarily prevent recovery against a trespasser, and the court may consider a broader range of extrinsic evidence than in a vendor-and-purchaser dispute.
3. Temporal extent of the title. Section 3(4) of the Conveyancing and Law of Property Act 1909 applies by its terms to contracts between vendors and purchasers, not directly to trespass claims. Nevertheless, the coherent operation of limitation law, conveyancing law and the Quieting Titles Act 1959 prevents a trespass claimant from being required to prove a root older than the period prescribed by section 3(4). Section 8(2), section 19 and Bannerman Town, Millars and John Millars Eleuthera Association v Eleuthera Properties Ltd [2018] UKPC 27 supported that conclusion.
4. Sufficiency of the conveyance. Properly construed in its documentary and family context, the 1963 conveyance intended to transfer the land bequeathed to Phoebe Ann Braynen in the Sweeting will. Its reference to 860 acres was an obvious drafting mistake. The trial judge’s findings, read fairly, accepted that the registered survey accurately located the relevant bequests and placed the disputed land within Phoebe Ann Braynen’s portion. Mrs Turnquest therefore established a documentary title supporting trespass and recovery of possession.
5. Adverse possession. Applying J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419, and the principles stated in Powell v McFarlane (1977) 38 P & CR 452 and Simpson v Fergus (1999) 79 P & CR 398, legal possession requires factual possession and an intention to possess on one’s own behalf and for one’s own benefit. Possession sufficient to extinguish the prior title must continue throughout the prescribed limitation period. WSC produced no reliable evidence of when its road, tanks or fence were installed, and its 1983 memorandum did not refer to the disputed land or its facilities. Its later offers to purchase or lease the land, followed by payment for use of private land, were inconsistent with an objectively demonstrated intention to exclude others throughout the period.
6. Reserved issue. It was unnecessary to decide whether WSC’s offer and payment constituted an acknowledgment under section 38 of the Limitation Act 1995 which restarted the limitation period.

1. Privy Council: In Carla Anita Cecilia Braynen Turnquest v Water and Sewerage Corporation (Bahamas) [2026] UKPC 33 , the Board dismissed WSC’s appeal and upheld the Court of Appeal’s result on documentary title and adverse possession.
2. Court of Appeal of the Commonwealth of the Bahamas: On 5 December 2023, the court reversed the trial decision. It held that Mrs Turnquest’s documentary title was superior to WSC’s possessory claim and that WSC had not proved the necessary intention to possess. The Board upheld the result but corrected the court’s unqualified statement that any documentary title necessarily prevailed and its treatment of section 3(4) of the Conveyancing and Law of Property Act 1909 as directly applicable.
3. Trial: In December 2022, Madam Justice G Diane Stewart dismissed Mrs Turnquest’s claim. She held that the 1963 conveyance was not a good root of title and alternatively found that WSC had occupied the land since at least 1983.