Supreme Court
Action No. 385 of 1980
5th March, 1984
Moe, C.J

Mr. Denys Barrow for the Plaintiff.
Mr. Lionel Welch for the Defendant.

Real Property - Adverse possession - Effect of permission to enter into possession by the one authorized to give such permission - Effect of the death of person authorised to and who gave permission to enter - Position of a person who is beneficially entitled who is in possession at the end of a licence - Limitation Ordinance CAP. 198 - Mesne profit.

J U D G M E N T

The Plaintiff as Administratrix of the Estate of one Elisa Adams seeks to recover from the Defendant possession of Lot 505B at Water Lane, Belize City. She claims that the Defendant has been wrongfully in possession since September 1950 and refuses to give up possession. She claims mesne profits from that date. The Defendant denies being in wrongful possession and says that the Plaintiff's claim is barred by section 12(2) of the Limitation Ordinance CAP 198 and her right and title are extinguished by virtue of section 22 of the said Ordinance. He averred that he and his wife Julian Locke also known as Doolie Smith entered into possession of the lot since 1950 and has occupied it ever since.

Eliza Adams who died on the 20th April, 1930 left a simple Will in the following terms:-

"I give and bequeath to my grandchildren my property No. 505 to be sold after my death, paying all my funeral expenses etc. etc. balance of amount remaining to be divided in equal shares to Harold Smith, Doolie Smith, Leoni Smith, Nathaniel Smith and Clarence Smith, John Thomas, Emma Codrington, and Daniel Adams the last three are my own children. They are also to have equal shares. And I appoint Emma Codrington my daughter sole executrix."

Sometime in the 1950's the then named executrix of the deceased's estate, Emma Codrington gave the Defendant's wife, Julian Locke permission to live on the lot. Julian and the Defendant entered and occupied the lot. The Defendant built a house on the lot. The house was destroyed during Hurricane Hattie 1961 and in that year the Defendant built another house on the lot. Julian died in 1977. All the other beneficiaries named in Eliza Adams' Will predeceased Julian. So did the executrix Emma Codrington.

The Defendant continued to occupy the lot. On the 12th July, 1980 the Plaintiff was granted letters of administration to the Estate of Eliza Adams. On 23rd September, 1980 the Plaintiff through her attorney-at-law requested the Defendant to vacate the lot. The Defendant has not moved.

The Defendant while conceding that the possession assumed by Julia and her husband in the 1950's was not adverse to Emma Codrington, the executrix of Eliza Adams' Estate, submitted that the possession was adverse to the Plaintiff. He contends that adverse possession commenced either in the 1950's when they started occupation or at least in 1961 when the Defendant built a new house on the lot. The Plaintiff's submission was:

(a)	that time did not run in favour of the Defendant and his wife since all they had was a licence from the executrix,
(b)	if that licence ended with the death of Emma Codrington, it is for the Defendant to show that possession thereafter was other than under a licence.

I referred first to the Land Transfer Act 1897 (60 & 61 Vict. C.65) legislation applicable at the time of Eliza Adams' death. See section 4 Chapter 2 Consolidated Laws of British Honduras 1924. On a consideration of that legislation the deceased's real estate Lot 505 devolved on and became vested in Emma Codrington her personal representative. Further Emma Codrington held the lot as trustee for the persons named in Eliza Adams' Will as beneficiaries.

Doolie Smith and her husband therefore entered into occupation of Lot 505 with the permission of the person entitled to give it. There was no intention to create a legal relationship between Doolie and Emma and thus Doolie had merely a licence to occupy. Occupation by virtue of permission of the person entitled to grant it could not be occupation for a period running in favour of Doolie and her husband. That licence came to an end at the death of Emma Codrington.

The evidence does not leave it clear as to the date of Emma Codrington's death. The Plaintiff's evidence suggests that it was shortly before Doolie's death in 1977. On the basis that it was in 1977, between then and the filing of this action could not amount to the requisite limitation period.

In my view however, it is of little consequence to have the exact date of the termination of the licence under which Doolie and her husband occupied the lot. After Doolie's licence ended, her possession may from then be regarded as possession by a person beneficially entitled in which event she was a trustee for herself and others beneficially entitled. The period she so held the lot, i.e. until 1977, was not one running in her favour. See section 15(5) Limitation Ordinance CAP. 198.

On the evidence before me, the Defendant would be able, if at all, to claim adverse possession only from 1977 and his plea as to the Limitation period would fail.

In the result, I hold that the Plaintiff, Administratrix of the Estate of Eliza Adams is entitled to possession of the Lot 505. She is entitled to a sum assessed at $50.00 per month from a reasonable time after her request to the Defendant that he give up possession. I took into account that under the licence granted to his wife Doolie, a house was placed on the lot and a reasonable time for removing it or making alternative arrangements ought to be allowed. The Defendant received notice to vacate on the 23rd September, 1980 and I hold in the circumstances three months thereafter a reasonable time within which he ought to have given up.

The Plaintiff will have an order for possession of Lot 505, mesne profits at $50.00 per month from 15th December, 1980 and her costs.

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