An article published in The Gleaner on 5 June 2022 stated that “Despite various studies, including one from the 1970s done by Professor Carl Stone, there is still no accurate number of those occupying lands illegally in Jamaica, but an estimated 20 per cent of the country’s three million people are living on lands they have captured, some for as many as four generations.”
The law on adverse possession provides a route for squatters to legitimize their occupation of property owned by someone else. A squatter who openly and exclusively occupies privately-owned property for 12 years, dealing with it in a way that an occupying owner might be expected to deal with it, and having the requisite intention to possess, will acquire adverse title by possession.
After 12 years, the Limitation of Actions Act will extinguish the landowner’s title and bar him from bringing an action to recover the land. The squatter, in contrast, may apply under the Registration of Titles Act to have the Certificate of Title for that property cancelled and a new Certificate of Title registered in his name.
Given the prevalence of squatting in Jamaica, many landowners will find themselves in the unenviable position of having to protect their title to their property because a squatter has started to occupy it. In no particular order, here are five tips that might assist those landowners:
1. When purchasing land, ensure there are no squatters on the land.
The buyer must always beware. When buying land, purchasers should consider insisting that a term be included in the Agreement for Sale for vacant possession. This will put a contractual obligation on the vendor to ensure there are no squatters on the land when the conveyance is made to the purchaser. Therefore, if there are squatters on the purchased land and, even worse, if those squatters have been there for 12 years or longer, the purchaser may have a remedy in contract against the vendor. That said, it is always advisable that purchasers visit the land to ensure that nobody is occupying it before signing the Agreement for Sale.
2. If your land is unregistered, register it.
Under the Torrens System of Land Titling, which Jamaica uses, the Certificate of Title is conclusive evidence that the person named as the registered proprietor is the owner of the land. Registering your land does not mean that a squatter cannot acquire adverse title to it. In fact, the Registration of Titles Act makes the Certificate of Title subject to the operation of any statute of limitations. Nevertheless, the Certificate of Title will provide you with proof of ownership which will be good against the world unless and until somebody else can show that they have a better title than you.
3. Once you discover squatters are on the land, commence an action to recover possession.
The landowner has 12 years from the date the squatter goes into possession to bring an action to recover the land. Provided that the squatter remains on the land with the requisite intention to possess, the landowner’s failure to bring the action will result in his title being extinguished. Issuing a notice to quit is not enough to stop time from running. The best way to stop time is to commence an action for recovery of possession. Although the time it takes to obtain a court order may be frustratingly long, time will stop from the moment the claim is filed and the landowner’s title will be preserved.
4. Do not use force to remove the squatter yourself.
A squatter is not a tenant and will not be protected by the provisions of the Rent Restriction Act. This only means, however, that the landowner should face less difficulty in obtaining an order for recovery of possession which he can enforce to have the squatter removed. It is not advisable that the landowner remove the squatter himself, as that may not only expose the landowner to a confrontation with the squatter, but also to criminal and/or civil liability depending on the actions taken by the landowner.
5. Monitor your land regularly.
Although land is a scarce and valuable commodity, many people will be fortunate enough to own more than one parcel. Where you own land that you do not occupy, extra care must be taken to monitor that land regularly to ensure that (1) no squatters are on the land and (2) if there are squatters, you become aware sooner rather than later.
The topic of adverse possession tends to be very controversial, especially in a society like Jamaica’s where squatting is widespread. Some may view the current law on adverse possession as justifiable, having regard to Jamaica’s history of slavery and the historical and enduring obstacles to land acquisition. On the other hand, as Lord Bingham stated in a leading House of Lords decision, in a system where land is registered, there may be no justification for entitling a person who has already received the benefit of 12-years free use of land to then be declared the owner of that land without having to pay any compensation to the previous owner.
Perhaps the time has come for Parliament in Jamaica to revisit the law on adverse possession to see if its current form remains the best way to achieve justice and fairness. Until then, however, landowners bear the burden of ensuring squatters do not appropriate their land.
Jacob Phillips is an Associate at Myers, Fletcher and Gordon and a member of the firm’s Litigation Department. He may be contacted at jacob.phillips@mfg.com.jm or through the firm’s website www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.
