IN THE HIGH COURT OF JUSTICE. Between LEO LARES DAMIANA LARES BERNADINE ABRAHAM CLOTHILDA JOAN MOHAMMED THEODOTA THEODORA LARES CAMILLA ALEXANDER.

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1 THE REPUBLIC OF TRINIDAD AND TOBAGO CV IN THE HIGH COURT OF JUSTICE Between LEO LARES DAMIANA LARES BERNADINE ABRAHAM CLOTHILDA JOAN MOHAMMED THEODOTA THEODORA LARES CAMILLA ALEXANDER Claimants And ALFONSIA LARES Also called ALPHONSIA LARES ERMA MAGDALENE LARES ANTOINETTE LARES Defendants Before the Honourable Mr Justice Ronnie Boodoosingh Appearances: Mr Abdel Ashraph for the Claimants Mr Kingsley Walesby for the Defendants Page 1 of 12

2 Date: 19 July 2016 JUDGMENT 1. This claim arises in respect of a property located at 21-23, Padmore Street, San Fernando. It is a large house located on 2.5 lots in a well developed area. The claimants and defendants are all siblings. 2. The house was built in It formed the home of their father, their mother and them. The father died first and then the mother in At one time all of the children lived there. There were 12 in all. Nine were alive at the time of the death of the mother. 3. By intestacy rules, the claimants and defendants all have a one-ninth undivided share in the property. The claimants have asked for the partition of the property, its valuation and sale so that each of the owners can realise their one-ninth share in the property. 4. The first defendant occupies the property. The second and third defendants were sued because they did not respond to the request to have the property partitioned. But they have not taken part in the proceedings. 5. The property is a substantial one. There are 5 bedrooms and living facilities upstairs with 2 toilets and bath. There are 5 bedrooms downstairs with a toilet and bath. Page 2 of 12

3 6. The first defendant says she has been in adverse possession of the property as a whole. She says alternatively that she has been in adverse possession of the upstairs of the property. 7. The issue is whether the court should order the partition or whether the entitlement of the other owners has been extinguished by the first defendant having obtained adverse possession of the premises as a whole or alternatively of the upstairs part. 8. In Rosalind Ramroop v John Ishmael and Another 2010 [UKPC] 14 Lord Walker Page 3 of 12 dealt with the law relating to possession of part of a property: 22. The second submission was that the house was in multiple occupation and the appellant had obtained a possessory title of the part of the house which she occupied. Hamel-Smith JA rejected that submission on the broad ground that possessory title goes to the land. There was, he said, no authority to suggest that a person can acquire a possessory title that includes only the downstairs portion of a building. 23. In the Board s view that is too wide a statement of principle. There is surprisingly little authority on the point. The case of Rains v Buxton (1880) 14 Ch D 537 is not particularly helpful since it is not clear whether or not the cellar, which had been in the possession of the plaintiffs for 60 years, was under a building belonging to the defendants (who were proposing to carry out building works interfering with the cellar). But the report does make clear that the surface land belonged to the defendants. 24. As a matter of principle land can be owned in horizontal layers, as every purpose-built block of residential flats illustrates. The important issue, in the context of adverse possession, is whether the claimant is in de facto possession of the property in question to the exclusion of other persons (except so far as those other persons are family, visitors or other licensees of the person in possession). The English Court of Appeal has accepted (Simpson v Fergus (2000) 79 P & CR 398, 401) that: Possession of a flat with a front door that can be locked is obviously different from possession of part of an unfenced moor or hillside. 25. The Board cannot therefore agree with the wide proposition accepted by the Court of Appeal. But if a claimant is to establish title by adverse possession to part only of a building, it is necessary that the pleadings should precisely define

4 the part of the building claimed to have been in the possession of the claimant, and that there should be credible evidence that that part of the building was capable of being possessed by the claimant to the exclusion of others (apart from the claimant s licensees), and that the claimant did in fact enjoy such possession throughout the limitation period. A case of that sort might be relatively easy to plead and prove if the property in question was a self-contained residential flat in a purpose-built block. It might be much more difficult in a building which had slipped into informal multiple occupation with shared facilities. 26. The appellant s claim met none of these requirements. Her pleadings never put forward (at all, still less with precision) an alternative case based on possession of part only of 22 Union Street. In her evidence she persisted, in the face of compelling evidence to the contrary, in asserting that Lystra Parfitt was not another non-paying tenant but was instead her licensee. There was no clear or detailed evidence as to the layout of the building (for instance, how occupants of the top floor went upstairs, and what if any kitchen or bathroom facilities were used in common). 9. Further, in Adverse Possession by Stephen Jourdan, para 10-02, p. 207, the author stated: Possession of the surface of land is prima facie also possession of the air space above and the soil and minerals below: Seddon v Smith. However, it is possible to take possession of only the surface, or only a slice or stratum of land. This can occur if the title of the land is already severed vertically: See para below. It can also occur if the owner continues to exercise possession over part of his land, divided vertically, while the squatter is in possession of another part. 10. It is not in doubt that the first defendant has lived upstairs of the property with her 6 children from the 1970s. The first defendant continues to occupy the upstairs of the property. She has given permission to her daughter to use the downstairs of the premises and her son to use the property as a garage. 11. What is in dispute is when did two of the sisters, namely, Camilla and Bernadine, leave the premises. They are both claimants and witnesses. Page 4 of 12

5 12. The first defendant says Bernadine left the premises in She says Camilla left to go to a nearby neighbourhood called Phillipine to live with her husband when they got married. She had only visited the property to stay for very short periods after that but she cannot be said to be an occupier since leaving to live with her husband. Camilla disputes that. 13. Bernadine says she moved out in May 2000 when her husband her and built their house in Guapo, Point Fortin. 14. The evidence supports the assertion that Bernadine lived in the property up to 2000, subsequently to There were substantial water rates owing in respect of the property in Bernadine s daughter made two agreements with WASA, one in November 1997 and the other on 1 December 1998 to pay off the arrears of water rates for the property up to June The first defendant says Bernadine and her family moved out when the water was disconnected in 1997 saying it was for the first defendant to pay the arrears. It is incredible to me that Bernadine s daughter would enter into agreements to pay the water rates due on the property after they had all left the property. That defies logic. It must mean that they were occupying the property until then and had an interest in having the rates paid up to prevent the water supply being disconnected. 15. The first defendant has submitted that a credible reason for this is so that the property would be sold and Bernadine wanted to realise her share. On that matter I did not believe the first defendant and her witnesses nor did I accept this submission. I accepted that this showed that Bernadine and her family continued to be an occupier of the premises until 1999 and likely to May 2000 when she said she left. Page 5 of 12

6 16. I also accepted the evidence of Camilla that she would come to the property from time to time and stay for extended periods. This happened when she had difficulties with her husband resulting from an abusive relationship up until the time she migrated to the US. 17. Another matter concerned the exclusivity of the occupation of the downstairs portion. The first defendant says she occupied the downstairs except for a room, gallery and kitchen which was occupied by her brother James Lares. James was in prison from 1996 to He came back to the property in 2002 and he died in Before 1996 he lived at the property. 18. I find it implausible that the downstairs portion would have been separated in that manner whereby James only had access to a small part of the property while the first defendant controlled the rest of it. 19. I think it is far more reasonable to find that the first defendant was never in exclusive occupation of the downstairs of the property before James died in I find it highly likely that the first defendant started to exercise control over the property after James s death in This does not give her sufficient time for adverse possession to run. 21. The next issue concerned the upstairs portion. It is clear that the first defendant occupied the upstairs portion with her six children. The question is whether it was exclusive in the sense that the others had no access and were excluded from there. Page 6 of 12

7 22. I am unable to accept the first defendant s contentions in that respect. 23. Her cross-examination showed that she did not consider that she was the owner of the property exclusively. She said repeatedly that all of the siblings owned the property. In cross-examination she said: All brothers and sisters were entitled to house. Did not have to ask them to stay there. It was understood as a sister I could live there. Q: Stayed there with understanding of brothers and sisters that allowed to live there? A: Because the house belongs to everybody. That is why continued to live there. I continued to live there as a joint owner. So did brothers and sisters. I did not think the house was mine when mother died. It was everybody own. Q: If one person was owner that person would be responsible for expenses? A: Who living there would have to be responsible for the expenses because they living there. No one was responsible for water rates. Anybody could have paid the bill. I never paid the bill. Q: First time you paid the WASA bill? A: I never pay. I pay up to now. Put: only after 2005 you paid any bill re house? Page 7 of 12

8 24. Further she said: A: I paid land tax before brother died. Q: James had a right to live there then? A: Yes. I never thought the property was mine. I lived there because I was a part owner of the property. Q: Had no intention to control or claim ownership of property up to when brother died? A: I had intention. Q: When? A:... Repeat Question: I never had intention of claiming the property. Person having intention would pay expenses and maintain it. 25. Finally later on she said in cross-examination: Q: Started to act as if own the property after brother died? A: Yes. Include the payment of the bills. 26. I find it more likely that the first defendant occupied the upstairs portion but that it was not exclusively occupied. I find that the others did have access to the upstairs part. Her attempt to deny others access happened only after James died in Page 8 of 12

9 27. In respect of the property as a whole, Damiana Lares paid the water rates which were in arrears from 1991 to Bernadine paid the WASA rates. There are bills showing another sibling paid the cable bill. 28. The first defendant tendered various receipts. All showed that her payments were made from 2007 and continuing. In fact most of the expenditure on the property took place from 2013 to She produced nothing to show that she paid any bills before the death of her brother James. 29. All of this suggests that there was no exclusive occupation or control of the premises by the first defendant in a manner that shows that she considered herself the sole possessor of the property to the exclusion of others. 30. It showed a shared intention among those in particular who lived on the property to contribute to it and even of those who did not live there to also contribute to the property. 31. In fact the first defendant admitted in cross examination that she started to act as she owned the property exclusively after her brother James died. The cross examination as a whole undermined her contention of adverse possession. 32. An interesting bit of evidence concerned the tea sets, glasses and wares of the mother of the claimants. This was stored in a cabinet upstairs. In cross examination the first defendant accepted these were not hers but her mother s. She accepted that everyone had access to these. They would have to get it upstairs. This does not suggest that the others were excluded from the upstairs portion of the property. Page 9 of 12

10 33. There was a staircase to upstairs. It was not locked off. Persons downstairs could have access to the upstairs portion and I find that they did have access. 34. Had she wanted to exclude others from the upstairs in the context of this dwelling house, the appropriate course would have been to close off the upstairs and keep a locked door. 35. I found the nature of this property was not such as contemplated in the Ramroop case above where the upstairs can be considered to be in the nature of a flat severed vertically from the downstairs portion. 36. Further, the first defendant did not precisely define the upstairs being claimed nor did she demonstrate by evidence that that part of the building was capable of being possessed by her to the exclusion of others except licensees. 37. The first defendant lived on the property with her children rent free for over 40 years. She has had a substantial benefit from living on the property. 38. There is no good reason why the other owners of the property should not realise the benefit of their interest in the property. 39. There were some other matters raised in the submissions of the first defendant which it is necessary for completeness to address. The first was evidence by two claimants that they had not given instructions relating to the filing of the Defence to Counterclaim. Camilla Alexander in cross examination said she gave her siblings authorisation to proceed with the claim. The fact that one or two of them may have taken the lead in advancing the Page 10 of 12

11 claim does not mean that any adverse conclusion can be drawn from this. Clearly the claimants who did not specifically authorise the filing of the defence to counterclaim have adopted what was done by other claimants on their behalf. Nothing turns on this point. They have not resiled from the claim filed in any way. 40. I also did not see any significance in the statements made in the letter written by the second claimant to the first defendant s daughter dated 5 September 2000 that: You all have the house in a most disgraceful and dilapidated state as to suggest that the first defendant and her family were the sole occupants. It is clear they lived upstairs and had always done so. Even if there were other occupants it is clear that it may have been thought that they should have a primary role in the upkeep of the premises. It is also evident that the relations between the first defendant and some of her siblings were not of the best and there had been some conflict which resulted in certain things being expressed in the letter. I do not think this letter meant that the others had been excluded from the premises at this time. 41. Accordingly, there is judgment for the claimants against the defendants. The counterclaim for the first defendant is dismissed. 42. It is ordered that there be partition of the property described in paragraph 1 of the fixed date claim form. 43. It is ordered that the property be sold and the proceeds of the sale be divided in the manner: one ninth share to each of the claimants and defendants. 44. It is further ordered that: Page 11 of 12

12 a. The property is to be valued by a valuator to be agreed by the parties. In default of agreement the court will appoint a valuator on the application of the claimants. b. A real estate agent is to be agreed by the parties to have conduct of the sale of the property. In default of agreement the court will appoint a real estate agent on the application of the claimants. c. The property is to be sold at no less than the value fixed by the agreed or appointed valuator. d. There be deducted from the sale price before distribution the following expenses: i. The Real Estate agent s fees ii. The expenses incurred by the claimants in disbursements relating to the payment of rates and taxes, water rates and probate expenses in the estates of Dolly Edwards and Rosita Lares. 45. There is liberty to apply. I will hear the parties on costs. Ronnie Boodoosingh Judge Page 12 of 12