Sharon Burghardt and Harold Burghardt v Tracy Taylor

• Jurisdiction: Jamaica
• Judge: Brown,Evan J
• Judgment Date: 28 September 2012
• Neutral Citation: [2012] JMSC Civ 126
• Docket Number: CLAIM NO. 2010 HCV 04861
• Court: Supreme Court (Jamaica)
• Date: 28 September 2012

[2012] JMSC Civ 126

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2010 HCV 04861

Between

Sharon Burghardt

1st Claimant

and

Harold Burghardt

2nd Claimant

and

Tracy Taylor

Defendant

Mr. Wilwood Adams instructed by Robertson, Smith, Legister & Co. for Claimants.

Mr. Debayo Adedipe for Defendant.

ADVERSE POSSESSION — TENANCY AT WILL — BARE LICENSEE — REVOCATION OF LICENCE — BENEFICIARY GIVING PERMISSION TO OCCUPY LAND — ACCRUAL OF RIGHT TO BRING ACTION FOR RECOVERY OF POSSESSION — FAILURE TO DEMONSTRATE LIMITATION PERIOD — LIMITATION OF ACTIONS ACT SS. 3, 4, 9, 30

Brown, Evan J

1 By Fixed Date Claim Form filed on the 4 ^th October, 2010, the claimants sought an order declaring their interest in the parcel of land registered at Volume 953 Folio 250 in the Register Book of Titles and an order for possession of the said land against the defendant.

CASE FOR THE CLAIMANTS

2 In May, 1996 the claimants purchased the land, at Three Chains, Manchester, which is the subject of this claim from Miss Joyce Cathleen Faulknor. The land was transferred to the claimants on the 29 ^th June, 2006. At the time of the negotiations, the claimants were told that the defendant was occupying the land as a tenant at will. The vendor also told the claimants that the defendant was informed that the property will be sold and she would have to ‘yield it up upon completion of the transaction.’ However, when the transaction was completed the defendant refused to vacate the property, claiming a right to be there.

3 In their affidavit, the claimants said the vendor disputed the defendant's alleged right to be there. It was pointed out to the defendant that the property had been left to “her” by will. Further, that the will had been probated and the land transferred to her on transmission. That transmission was entered on the Certificate of Title on the 28 ^th June, 2006. The probated last Will and Testament of Nathaniel Falconer was exhibited. Probate was granted on the 3 ^rd September, 1981, although the testator died on the 25 ^th June, 1962. That document showed that the land, a quarter of an acre, had been bequeathed to Louise Falconer (Joyce), Gladys Facey nee Falconer, Bernice Falconer, Artha Falconer and Vernice Falconer, to be divided equally. The vendor was the sole executrix named in the will.

4 Upon the defendant's refusal to vacate the property, the claimants” attorney-at-law “sent” a notice to quit to the defendant in March, 2007. That was followed by an action for recovery of possession in the Resident Magistrate's Court, Manchester. The Resident Magistrate made an order in favour of the claimants which was overturned on appeal and the case remitted to the magistrate for re-trial. The claimants were absent at the re-hearing and the case was adjourned without a date.

5 The claimants called Charles Williams in support of their case. In his affidavit evidence, he said he was sixty-six years old and the grandson of the testator. Mr. Williams said he grew up on the property, having been raised by his grandmother, Ellen Faulknor. He left the property in 1976 at the age of thirty to work in Kingston. He declared himself to be seized of ‘full knowledge of the circumstances surrounding the claim by Tracy Taylor to the property forming the estate of Nathaniel Faulknor (deceased).’ According to Williams, the defendant's predecessor in occupation Gene Facey, her mother, came to be on the property through his facilitation.

6 In his affidavit, he said he interceded on Gene Facey's behalf after she was displaced in her shopkeeping activities on another property. He consulted with Joyce Cathleen Faulknor, and ‘explained the situation to her and she gave permission for Gene Facey to erect a temporary structure … to continue her business.’ He even gave his assistance in erecting that structure. It was communicated to Gene Facey that the property was to be sold and the proceeds divided among the beneficiaries. He asserted in his affidavit that Gene Facey remained there until 1997 when she left to go to Canada.

7 It was the evidence of Mr. Williams that upon the departure of Gene Facey, the defendant took possession of the shop. The defendant was advised, on several occasions, not to erect any permanent structure on the property as it was to be sold for the benefit of the beneficiaries. This advice came from him and other family members. According to Mr. Williams, this advice fell on deaf ears as ‘the defendant ignored the advice and counseling of all the family members including her own mother, and in a clandestine manner extended the shop then laid claim to the property.’

8 In cross-examination Mr. Williams admitted that it was not true that he assisted in building the shop on the land for Gene Facey. He didn't know that the shop had been built by Bruce Williams, Everton Taylor and Jeffrey Malcolm. It was suggested to him that he knew that it was Tracy Taylor who operated the shop and her mother was with her sometimes, but his evidence remained unchanged on the point.

9 However, he retreated on the question of Gene Facey's departure date. He said Gene Facey was coming and going from Canada and he didn't know when she went to live there. Further, he was on the property in the 1990s. The latter admission came after he had earlier denied suggestions that he lived in Kingston in the 90s, returning only for family funerals. He sought to contradict that position by asserting that he stayed in Kingston but returned to the property once every two weeks.

CASE FOR THE DEFENDANT

10 Tracy Taylor contends in her affidavit that she has been in possession of the portion of the land since 1992, when she constructed a shop on the property. She admits to the filing of the action in the Magistrate's Court and the result thereto. Miss Taylor adverts to a special defence filed in response to that action, which was exhibited to her affidavit. She asserts that since 1992 she has maintained ‘unbroken and undisturbed possession of the land on which [the] shop is situated, to the exclusion of all others.’

11 The relevant portion of the defence is quoted below:

The Defendant has been in continuous, undisturbed possession of a part of the land subject of this action, certainly to the exclusion of the Plaintiffs and the executor (sic) of Nathaniel Faulknor's will, Cathleen, for upwards of 15 years, conducting business by herself and through her son Jeffrey Malcolm in a shop that she built … thereon more than fifteen years ago.

The defendant by her said adverse possession of the land barred the title of the Plaintiffs' predecessor in title and, consequently, the Plaintiffs by virtue of the provisions of the Limitation of Actions Act.

12 In cross-examination Miss Taylor was asked to clarify what she meant by “to the exclusion of all others”? She answered, “from the shop, from the piece of land on which the shop is.” That “piece of land” was estimated to be thirty feet by fifteen feet. Miss Taylor testified that it was her grandmother, Gladys Facey who put her in possession. It was her contention that Gladys Facey gave her the land, an oral gift witnessed by her boyfriend, mother, siblings and strangers. The defendant swore that when Gladys Facey was getting older she said the defendant could take her portion of the land. That was for the purpose of putting up a shop to help Gladys Facey survive. That the defendant said she did until Gladys Facey died and she buried her.

13 The defendant admitted under cross-examination to having a grandaunt called Joyce Cathleen Faulknor. Joyce Cathleen Faulknor had been both to the defendant's shop and the recipient of items from the shop. The defendant maintained that at no time did Joyce Cathleen Faulknor mention to her that the entire property was to be sold. She knew that the will had been probated when Gladys Facey directed her to the parcel of land, having a copy of the probate from Gladys Facey. She didn't know who probated the will but knew that Joyce Cathleen Faulknor was the executrix.

14 Jeffrey Malcolm testified on behalf of the defendant. In his affidavit, he said the defendant has been his common law wife since the beginning of 1992. Malcolm said that he built the shop, along with Bruce Williams and Everton Taylor. Malcolm swore in his affidavit that the shop was built with the encouragement of Gladys Facey. Further, Charles Williams was not there when the shop was built; he didn't even know Mr. Williams at the time.

15 Under cross-examination he said the shop was built in a day; from board with concrete flooring. Initially, it was a little shop in which the wares were displayed during the day but removed at nights. Eventually, that structure was “upgraded”. The building material was unchanged but now there was no longer any need to remove the goods in the nights, and somebody could stay there at nights. The upgrade was done about three months after the initial structure had been erected, all in 1992. Lastly, he said Gene Facey was “around” when the shop was being built.

16 In cross-examination Malcolm was asked how he knew Gladys Facey encouraged the defendant to build the shop. His answer was a lengthy explanation. In essence, Gladys Facey urged him to build the shop for the then unemployed Tracy Taylor to keep Tracy out of bad company. Gladys Facey took them to the property and ‘pointed out a little spot’ which she said was hers'. Thereafter the land was cleared and he bought the material to build the shop.

DEFENDANT'S SUBMISSION

17 Mr. Adedipe submitted that the issue for determination was whether the defendant has by the possession she sets out in her case effectively barred the claim of the claimants pursuant to Limitation of Actions Act. What then is evidence of possession? Dispute as to length of possession. Her evidence, supported by Jeffery Malcolm, is that her...