BELIZE CITY, Wed. July 11, 2018– An elderly man, who sold his property with the agreement that the buyer would subdivide the land, leaving him with the back portion, on which his house stands, went through an ordeal when the person who bought the property from him transferred the entire package to his wife, who then transferred it to a building society, who then sold it.

The matter came to a near disastrous end when the most recent owner, after newly acquiring the property, ordered the elderly man (and his wife) off the land, but he triumphed in a cross claim in the Supreme Court—winning on the technicalities of the law, which allowed him to retain his property.

In Supreme Court claim number 197 of 2017, the Claimant is Englebert Lincoln Taibo and the 1st Defendant is Clarence Flowers; the 2nd Defendant is Helen Buller, and in Supreme Court claim number 722 of 2017, the 1st Claimant is Clarence Flowers and the 2nd Claimant is Helen Buller.

The property in question is located at the corner of Ebony Street and Central American Boulevard and is described as Registration Section Lake Independence, block 45, parcel 318.

The evidence for the two claims was heard by Supreme Court Justice Madam Sonya Young on April 16 and 17, 2018. Attorneys for the parties, apart from appearing in court on the hearing dates, also made written submissions.

Attorney Oscar Sabido, S.C., appeared for Flowers and Buller, while attorney Nazira Myles appeared for Taibo.

Justice Young delivered her 17-page judgment on June 21, 2018, noting that the key words in the judgment are: “Land Law; Overriding Interest; Actual Occupation; Adverse Possession; Registered Land Act Cap. 194 and Limitation Act Cap. 170.”

Justice Young also noted that “This matter concerns two claims which were heard together.”

In her summary of the two cases, Justice Young noted that the first claim was brought by Taibo, who was seeking possession of the property to which he has a registered title, and of which Flowers and Buller have been in adverse possession, before Taibo got title to it.

Flowers was the original owner of the property, and sometime in 1991 he sold it to Findley Monsanto, who was supposed to have had the property surveyed and subdivided, but the entire lot was transferred.

That transaction was challenged in a court case that was not resolved.

Monsanto transferred the property to his wife who, in 2000, transferred it to the Belize National Building Society. Taibo, in 2016, bought the property from the Belize National Building Society.

After he bought the property, Taibo contacted Flowers’ daughter, Curlene, and explained to her that he was now the owner of the property, and that her father and Buller would have to move. Flowers and Buller, however, refused to vacate the property.

Flowers, 88, and Buller, 86, claimed an overriding interest in the property since 1991. They also contended that by the time the property was transferred to Taibo, the title had already expired and could not be transferred.

Flowers and Buller urged the court that their title to the portion they live on be declared.

Taibo’s defense was that the legal title had already been determined by the court in a previous matter, and the Belize National Building Society had served a number of notices for Flowers and Buller to vacate the property. Taibo claimed that the couple had not been in possession continuously for 12 years, so their claim ought to be dismissed.

Justice Young pointed out that there was but one real issue in the matter, and that was if the Flowers had an overriding interest in the portion.

Justice Young said, “The property is registered land and Mr. Taibo is its registered proprietor. The presumption is that he is in possession. However, his title, though absolute, remains subject to any registered or overriding interests.”

Justice Young continued, saying, “The Flowers claim such an unregistered but overriding interest through their very presence on the portion. The Registered Land Act protects the rights of persons in actual occupation of registered land, even where those rights are not registered.”

Taibo told the court that when he bought the property, Flowers and Buller were not in occupation.

In response to this allegation, Justice Young said, “I find this impossible to believe. They were clearly living there when his predecessor in title owned it, and they say they have never moved. The court finds that when Mr. Taibo bought the property, the Flowers were in actual occupation.”

Justice Young went on to say that Taibo admitted that when he bought the property he never inspected it, and he never asked Buller and Flowers about their rights if any, to occupy the property.

The Judge noted that occupation does not create rights, and said she was also mindful of the fact that, “The Limitation Act limits the time in which actions to recover land must be brought [12 years generally, or 30 years for Crown land] and extinguishes title at the expiration of that period.”

On the question of the possession of the land by Flowers (and Buller), Justice Young said, “In order to make a determination the court must consider the entire history of the Flowers’ occupation. This is because possession of this nature is always a question of fact, where one must not only establish the requisite factual possession, but the intention to possess as well.”

“Mr. Flowers said he built his home on the property between 1991 and 1992. He was living there when he agreed to sell the front portion to Mr. Monsanto. He has never moved, and his claim, like that of Ms. Buller, continues to be ownership of the portion. They maintain that their possession has always been inconsistent with the title of any of the true owners over the years. Their witnesses support them in all material particulars. But amazingly neither Ms. Fuller (the owner of the Belize National Building Society) nor Mr. Taibo acknowledge seeing him or Ms. Buller on the property, when they purchased,” Justice Young said.

She continued: “Fuller never walked the land prior to purchasing it. Taibo said he only saw Ms. Buller there after he had purchased. I don’t believe him. For many years he and his mother have jointly owned the property across the road from the portion. He admitted under cross examination that his mother is acquainted with the Flowers. He also stated that before purchasing the property, he inquired of the vendor what the position was with the Flowers being there. How did he know they were there? Moreover, it defies logic that he would not have made the same enquiries of his mother as well, particularly because he says he discussed the purchase with her.”

(To be continued in the Tuesday, July 17, 2018 issue of the Amandala)