Mcgregor

The term used in this area of the law to describe the right which the squatter may acquire is 'title by adverse possession.' It means that the squatter has been able to obtain a legitimate right to own and occupy property by extinguishing the legal owner's title.

The squatter must apply for title.

After the requisite period has elapsed, the squatter must apply to the registrar of titles for title to be issued in his or her name. This application will only be granted if there is evidence on affidavit from two disinterested third parties to corroborate the evidence of the squatter. These persons must be able to say that they are awarethat the squatter had been living on the land and acting as owner for a period of at least 12 years prior to the application.

The squatter must be in continuous possession of the property for a specified period of time.

In the case of government lands, a squatter may only be able to acquire title after occupying the property for 60 years, while in the case of privately owned land, an application for title may be made after 12 years. (All referenceshereafter will be in respect of privately owned lands.)

The squatter's occupation of the land must be contrary to the owner's title.

Time will only begin to run when the squatter exercises acts of ownership over the land. That is to say, the squatter cannot obtain a title by adverse possession if he or she is permitted to occupy the land by the owner.

In one Court of Appeal case, which was decided in 1991, the claimant had been allowed to occupy property to take care of the owner, Reuben, while he was ill. When Reuben died, his son, Simeon, allowed the claimant to remain on the property. Simeon had applied for a registered title to the property after his father died and, several years after Simeon's death, the claimant applied for title to the property by adverse possession. The application was refused because the court found that the claimant had always occupied the property with the consent of the owner.

The occupation of the land must be for a continuous and undisturbed period.

If the owner challenges the squatter's right to be on the land before the 12-year period has elapsed, the squatter will not be able to assert that he has displaced the owner.

It should be noted that, even if the owner of the property had a registered title, a squatter may be able to override that title by adverse possession. Therefore, it is important that the owners ofproperty remain vigilant and ensure that they exercise rights of ownership over their property.