Mckelly v Flemming

• Jurisdiction: British Virgin Islands
• Court: High Court (British Virgin Islands)
• Judge: Joseph, J
• Judgment Date: 24 September 1983
• Neutral Citation: VG 1983 HC 6
• Docket Number: Civil Suit no. 30 of 1982
• Date: 24 September 1983

High Court of Justice

Joseph, J

Civil Suit no. 30 of 1982

Mckelly

and

Flemming

Appearances:-

Mr. Farara for plaintiff.

Mr. Webster for defendant.

Real Property - Ownership — Prescription

Real Property - Licence — Equitable Interest –

Facts: In 1948 the defendant built a concrete structure on land after obtaining permission from her mother and uncle. The lot was owned by mother, two uncles and an aunt. Plaintiff, defendant's son was born in 1944. An additional room was built and the cost met by the defendant's daughter. The defendant contributed. In 1966 and 1967 further additions to which plaintiff contributed were made. In 1969 the plaintiff obtained a deed for the land on paying money to one of the uncles. In 1971 the plaintiff constructed a second floor and the defendant contributed. The plaintiff successfully applied to be registered proprietor of land.

Facts: In 1948 the defendant built a concrete structure on land after obtaining permission from her mother and uncle. The lot was owned by mother, two uncles and an aunt. Plaintiff, defendant's son was born in 1944. An additional room was built and the cost met by the defendant's daughter. The defendant contributed. In 1966 and 1967 further additions were made to which plaintiff contributed. In 1969 the plaintiff obtained a deed for the land on paying money to one of the uncles. In 1971 the plaintiff constructed a second floor and the defendant contributed. The plaintiff successfully applied to be registered proprietor of land.

Held: Defendant had not acquired land by prescription since she was not using the land with permission of certain of the owners.

Held: Owners permitted defendant to build concrete structure and allowed expectation to be created in her mind that she could remain on the land for as long as she desired. Plaintiff purchased with notice of the permission. The plaintiff was owner of land subject to defendant's licence coupled with an equity in the land. The plaintiff was owner of second floor of building and the defendant owner of first floor.

Joseph, J

1 The plaintiff in a statement of claim filed on 10 ^th May, 1982, claims that he is the sole registered proprietor with absolute title in possession of a piece of land in Road Town, Tortola, measuring approximately .05 of an acre, and the two-storey concrete building situated thereon, that is recorded in the Land Registry as Parcel 26 of Block 2837 E of Road Town Registration Section.

2 The plaintiff alleges that the defendant, who resides on the first floor of the building obstructed a prospective tenant from entering the second floor apartment.

3 Further the plaintiff claims that the defendant trespassed and entered the second floor apartment and wrongfully destroyed and damaged a number of items of a total value of $350. He seeks an injunction to restrain the defendant form trespassing on the second floor: from renting out the second floor apartment and from obstructing the plaintiff's access to the second floor.

4 The defendant in her defence filed on 29 ^th July, 1982, claims that she is the owner in exclusive possession of the land: has been continuously in possession since 1948: that the two-storey building on the land was built by her, and counterclaims for a declaration that she is entitled to be registered as owner by prescription of the land and building under the provision of the Registered Land Ordinance 1970 (No. 8 of 1970) (hereafter referred to as the Ordinance): that the plaintiff as registered proprietor of the property holds it on trust for the defendant, and an order under section 140 of the Ordinance for rectification of the Register of Lands.

5 I find the following facts:

6 The plaintiff is the defendant's son. In 1948 the defendant, having obtained permission from her mother, Evangeline Flemming and her uncle William Flemming, built a concrete structure comprising two rooms on a lot of land at Crab lot, Road Town, Tortola. The lot was owned by Evangeline Flemming, William Flemming, Theophilus Flemming (defendant's uncle) and Ellen Puntin (defendant's aunt). The defendant sought and obtained help of friends in the construction of the two rooms. The plaintiff, who was born on 29 ^th May 1944, did not contribute to the building of this structure. At the time of construction, the plaintiff, the defendant, and other members of the defendant's family were residing in Evangeline Flemming's house some eight feet away.

7 On completion of the construction of the two rooms the defendant with some members of the family occupied the two rooms. The plaintiff did not. He left Evangeline Flemming's house and resided with his paternal grandmother, Ms Kelly, until he was twelve years old, at which time he moved to the house at Crab lot and lived there with his mother until 1980.

8 Between 1962 and 1964 a kitchen and a bedroom were added to the building. I believe that the defendant's daughter Audrey who died in 1964 was mainly...