Commonwealth Caribbean Land Law

Sampson Owusu

• Publisher: Routledge-Cavendish
• Year: 2021
• ISBN:
  9781000159349
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The first textbook to address land law as it relates to the Commonwealth Caribbean, it encompasses all areas covered in an undergraduate course on the law of real property in the Caribbean.

Primary and secondary source material on the law of property in the whole of the Commonwealth Caribbean is made easily and readily accessible to law students and legal practitioners. Statutory provisions from all States are discussed in relation to each topic and the similarities and differences are highlighted. Extensive discussion and analysis of the decisions of the courts in the region are also included alongside an in-depth analysis and critical discussion of English case law that is relevant to the Caribbean. The examination of whether or not English case law should be followed in the region is relevant and interesting to anyone studying or practising law in other Commonwealth jurisdictions.

Essential reading for undergraduate law students in the Caribbean, this text will also prove useful to those studying for the certificate of proficiency in the practice of law in the Commonwealth Caribbean, while the footnote references to statutory provisions are an invaluable aid to any researcher of Caribbean land law.

CHAPTER 1

DEFINITION AND CLASSIFICATION OF PROPERTY

Property connotes many things and it is therefore difficult to define. “The law of property”, according to Lawson, “attempts to answer a number of questions about the relations of persons to things”.¹

“Property” is used to signify things which are the subject matter of ownership, e.g., tables, books, cars – these are classified as movable things, or personal property. Land, on the other hand, is called real property. Other “things” which are valuable, but which exist as concepts and not as objects capable of being reduced to physical possession, such as corporate stocks, bonds, patents and copyrights, are referred to as intangible personal property or choses in action.

A contract involves a relationship between persons respecting a thing, but its principal role lies in the enforcement of promises. Many other relations between persons affecting things do not have anything to do with promises. Contract primarily gives rise to a relationship which is in personam, i.e., a relation between two persons; only the parties to the contract can sue and be sued on it. All other persons are not affected and are, therefore, excluded.

Property, on the other hand, denotes a right in rem. This means that it gives rise to rights which are enforceable not only against the parties to the transaction, but against the whole world.

The distinction between contractual and property rights becomes blurred when a contract creates a right which can be transferred or assigned. Such a right becomes an asset, which can be expressed in terms of monetary value and is therefore protected against invasion by all other persons.

Invasion of one’s person is protected by law against the whole world, just as any right in rem, but the right to be free from tortious (negligent or intentional) injury is not a proprietary right. This is simply because we do not regard our own bodies as objects of property.

On the other hand, the right to be free from invasion of one’s things is a right in rem and falls under the classification of property. When any object of ownership is interfered with, a cause of action arises against the tortfeasor.

Property thus may connote (a) ownership as distinct from an object of ownership. This is the sense in which the concept “property” is used in the law of sale of goods, when it is provided that the property in ascertained goods passes when there is a sale. Property can also mean (b) a right less than ownership, as in the case of a bailee, when it is said that a bailee has a special property in the goods bailed. Property, in the sense of objects of ownership, comprises (c) corporal things capable of physical control as well as (d) valuable rights which may not be capable of physical possession.

CLASSIFICATION OF PROPERTY UNDER THE COMMON LAW

(a) Corporeal/Incorporeal

Corporeal property comprises physical objects which can be touched, felt and are visible, e.g., land, clothes, tables, potatoes. This is described in the Civil Law as res corporales, i.e., physical things, and it is distinguished from incorporeal property (or res incorporales).

Res incorporales is an abstract concept used to describe rights available against persons generally. Incorporeal property has no physical existence; it cannot be touched or felt; it exists only in the eyes of the law. Res incorporales are notional things and are therefore intangible, e.g., patents, copyrights, trademarks, rights over land, such as easements and profits à prendre (or servitudes), and securities, leases and usufruct. Incorporeal things may include legal obligations.

Under the Civil Law, ownership is described as dominium, which is classified as res corporales. But the common law classification defines ownership, which is an abstract concept, as incorporeal property.

(b) Movable/Immovable

The classification of movable and immovable property is rendered in the civil law as res immobiles, also referred to as res soli (immovables), as distinct from res mobiles (movables).

Immovables

Immovable property refers to land and things underneath and attached to it. It comprises:

(a) the earth’s surface,

(b) the ground beneath it down to the centre of the earth, including all the minerals² and natural vegetation,

(c) the column of air or space incumbent on the earth – thus it extends upwards, literally up to the heavens. The owner of a plot owns the space above the surface and is entitled to recover damages for trespass into the air space above his plot.³ This is expressed in the Latin maxim, “cujus est solum, ejus est usque et ad coelum ad inferos”,⁴ i.e., “To whomsoever the soil belongs that also is his to the heights of the sky and to the depths of the earth”. The essence of this maxim is that an owner of land owns everything on the land, above and below the land up to the sky and down to the center of the earth.

(d) fixtures⁵, i.e., objects placed on the earth with intent to have them permanently annexed to the land,

(e) trees, crops, and fruits growing on the land are included in the definition of land so long as they are not severed.

Land is (1) indestructible and (2) forever retains its location. The site of a parcel of land cannot be removed. It is permanent, and would, therefore, always remain within the jurisdiction of the court and be amenable to its process. It is impossible to withdraw it from the courts’ jurisdiction. (3) Land is specifically recoverable. Where someone is wrongfully evicted he can be restored through legal process to the very piece of land of which he is dispossessed. (4) Land endures for ever and therefore can provide a valuable source of support and subsistence for successive generations. It cannot be appropriated and taken away.

It can sustain such rights as easements or servitudes, which cannot subsist in movable property. Registration of title or conveyance play a vital role in giving effect to transfers of immovable property. But the transfer of movable property depends on delivery of possession.

Leasehold Interests as Immovable Property in Barbados and Trinidad and Tobago

A lease is a grant of exclusive possession of land for a fixed period or a periodic term, which is definite in duration, in return for a periodic payment in money. Leasehold interests can exist in Barbados and in Trinidad and Tobago⁶ as legal estates. Land is defined in Barbados⁷ and in Trinidad and Tobago⁸ to include “legal estates in land, whether or not they give a right to possession of the soil”. The combined effect of these statutory provisions in these two jurisdictions is to transform a lease, which by nature is merely an interest in land or immovable property⁹ under private international law, into land or immovable property. It ceases to be an interest in personalty.¹⁰

Belize

The position in Belize is not free from doubt. By section 2 of the Law of Property Act, 2000,¹¹ land has been defined to include “land of any tenure …”. The English court in the case of Re Brooker¹² held that leasehold interests are covered by the statutory term “land of any tenure”. A leasehold is one of the two interests in land, the other being the fee simple absolute in possession, which can exist as legal estates in Belize. Leases are therefore “land” in the eyes of the law in Belize. Accordingly, by statutory definition, leases are immovable property.

Movables

Movable property, on the other hand, possesses the following characteristics:(1) it can lose its identity by destruction; (2) it does not have a permanent location,i.e., it is not stationary, can be moved about, and can be withdrawn from the jurisdiction of the courts; (3) therefore a dispossessed plaintiff may not have restored to him the very thing that was lost to him; (4) it can be worn out and torn beyond recognition and may, therefore, not last beyond the life of man.

The distinction between movable and immovable property does not tally with the classification of property into personalty and realty, which is the primary classification of property under the common law. The movable and immovable classification is used under the common law to resolve conflict of law issues.

The division into movable and immovable is only called into operation here when the English courts have to determine rights between domiciled Englishmen and persons domiciled in countries which do not adopt our division into real and personal property. In such cases, out of international comity and in order to arrive at a common basis on which to determine questions between the inhabitants of two countries living under different systems of jurisprudence, our courts recognize and act on a division otherwise unknown to our law, into movable and immovable.¹³

Personalty/Realty

It is not easy to distinguish personalty from realty. There are, however, four effects of the distinction which are noteworthy.

(1) In England, before the Land Transfer Act 1897 (U.K.), realty passed under the common law directly to the heir on intestacy, or to the devisee where the property was willed. Personalty, on the other hand, vested in the first instance in the personal representative (administrator or executor) of the deceased. But after the Land Transfer Act 1897, both realty and personalty vested directly in the personal representative.

(2) Personalty could be willed but it was not until the enactment of the Wills Act 1540 (U.K.) and the Tenures Abolition Act 1660, that realty could be the subject-matter of testamentary disposition.

(3) Personalty can be an object of absolute ownership, but realty under the common law is subject to the incidents of tenure and therefore cannot be an object of absolute ownership. An individual may only have estates in land.

(4) The remedies for the recovery of realty and personalty differed. Where a person was dispossessed of realty he could, by means of the actio realis, be restored to the very object of which he was dispossessed.

Where an owner of realty was dispossessed, he could by this action – actio realis – obtain the King’s writ commanding the sheriff to put him into possession of the very thing from which he was wrongfully evicted. This remedy availed him not only against the person who wrongfully ejected him, but also against any person who was found in possession of the property. The e...