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Sunday, 27 February 2011

Tenant Eviction

Q: I have a tenant who refuses to pay the rent on the grounds that the yard was not maintained, but the lease agreement states that she has to maintain the yard. Can I breach the contract and give her notice of eviction?

A: The inclusion of yard maintenance in the lease agreement is a positive covenant and it can be enforced by the Landlord/lady. If she refuses to do that, it is a breach of the lease agreement and only compounds the other breach of not paying rent.

Giving notice isn't breaching the contract, so don't worry. Give her notice of 45 days to vacate and do not try to physically remove her yourself, or else you won't get any of that unpaid rent if it goes to court.

Tuesday, 15 February 2011

Adverse Possession

What is Adverse Possession?

Land owners must exercise control over their land because if they don't, another person (stranger/squatter) in occupation of that land may eventually be able to apply to the court for an order that he or she is in adverse possession of it.

Precedent on this matter comes from UK case law, but significant local case law on this topic is Salamat v Rajack & Others HCA NO.S1103 of 1994. Other cases include, Lucas v Jordan CV 2006 - 03612 and most recently, Harriram, Robert v Gopaul, Brandon; Gopaul, Simone H.C.S.1785/2002.

The law of adverse possession is grounded in the Real Property Limitation Ordinance Ch.5 No.7 sections 3 and 4 , which sets out the requirements to succeed in a claim for adverse possession:
(1) factual possession of the land for 16 years or more and
(2) the animus possessendi, that is, the intention to exclude the world.”
(Per Deyalsingh J. in Lyder v De Freitas H.C.A. 1310 of 2001 at pages 20 and 21 and see Poyer v Freitas Cv 2005 – 00632 at pages 17-79).

“Factual possession signifies an appropriate degree of physical control. The stranger must take control of the land and must make use of the land in full and open to the public and without interference from anyone. Examples of some acts that may show adverse possession are building on the land, fencing the land, living on the land, planting on the land and rearing livestock on the land. The more things done on the land, the more convincing the case for adverse possession. See Lord Browne-Wilkson in Pye v Graham [2002] 3 WLR 221 [P.C.] at page 234.

As for the animus possessendi “what is required is not an intention to own or even an intention to acquire ownership but an intention to possess“(see Pye op cit pg 235 AB) <--- VERY IMPORTANT!

Who is considered to be a stranger?

A stranger is someone who comes on or remains on the land without any permission and whose occupation has not been interfered with.


(1) If a person occupies land by reason of some permission from the true owner then he or she cannot claim to be in adverse possession.

(2) If a person occupies land as part of some family arrangement, he or she cannot claim to be in adverse possession of that land.

(3) If a person occupies land under a tenancy agreement and has been paying rent all along, he or she cannot claim to be in adverse possession of the land.

If, however, a person occupied land as part of a tenancy agreement and has stopped paying rent, then that person’s adverse possession starts when the rent was stopped being paid.

Tuesday, 8 February 2011

Blogging Hiatus

I know that I have an inbox filled with unanswered questions, but I was swamped with work and my Masters degree assignments due last month.

I promise to answer ALL questions from Tuesday 15th, 2011.

Thanks for your patience and I apologize for any inconvenience, as I saw that some questions were urgent!