In Jamaica, the Land Acquisition Act (“the Act”) governs the process by which the Government of Jamaica (GOJ) is enabled to compulsorily acquire land. When the Minister declares that property is needed for a public purpose, the declaration is deemed to be conclusive evidence that the land is needed for a public purpose. The declaration itself cannot be appealed, nor is it subject to judicial scrutiny in the ordinary sense. However, decisions made by the GOJ are always susceptible to judicial review on grounds of illegality, irrationality or procedural impropriety. Therefore, if the procedure set down in the Act isn’t followed or if the decision to use the land for a public purpose is illegal or outside of the realms of what a reasonable decision maker would do, it may be successfully challenged in Court. Even if the declaration is not challenged, interested parties can object to the amount of compensation offered (including for the land itself and relocation costs), either at the negotiation stage or when the Commissioner of Lands makes an award.
For example, in 2014, the Government of Jamaica sought to acquire four parcels of land in St. Catherine for the purpose of completing Highway 2000 Phase 2A. When the landowners refused to agree to sell for the offers made, the Commissioner of Lands, based on valuation reports prepared by the National Land Agency, made awards to the various landowners at a market value of between $7,400,000 to $9,000,000 per acre. The owners objected to the awards on the basis of their own valuations of a market value of $20,000,000 per acre and, in keeping with the procedure under the Land Acquisition Act (“the Act”), the Commissioner referred the matter to the Court for determination. Also in keeping with the provisions of the Act, the owners obtained an interim order for payment of the full amount awarded by the Commissioner (which was the subject of the objection before the court), upon provision of security for the sum awarded. They therefore received that sum of money while the matter was being determined. The Court tried the matter in 2020 and increased the award to $14,000,000 per acre and ordered that the Commissioner pay the owners’ costs of the litigation. The objections of the landowners were therefore well-founded and the time taken to get an ultimate decision was worthwhile.
Recently, the GOJ has been using the Act to acquire property for public roads and Special Economic Zones, all pretty clear examples of public use. However, that doesn’t make the individuals affected feel any better about the losses they incur, which can range from emotional attachment to the land/community to financial losses, related not only to the value of the land but also to the cost of relocation. So, where the intended public use can’t be challenged, what are affected landowners to do? Having some knowledge of the procedure (outlined below) is helpful and reveals the following important information:
- There is no legal requirement that you agree to a sale to the GOJ by private treaty when they start the process by making offers to you.
- If you don’t agree, the next step is for you to be served with the notice of a hearing before the Commissioner of Lands. Upon receipt of this notice, you should obtain an independent valuation of the relevant property from a reputable valuator as at the date you are served with the notice of a hearing before the Commissioner of Lands and consider what evidence you can provide in support of any relocation costs.
- Interested persons dissatisfied with an award of compensation by the Commissioner may object to the survey of the land, the amount of the compensation, the persons to whom it is payable or the apportionment of the compensation among the persons interested.
- If an objection is warranted, acting quickly is important. Any challenge must be made within 6 weeks from the date of the Commissioner’s award and the Court has no jurisdiction to enlarge that time.
- Wilfully obstructing any person in the execution of their duties in surveying or testing the property or wilfully filling up, destroying, damaging or displacing any trench marks made for these purposes is an offence against the Act.
- The Commissioner may require that you provide information about the land and interested persons who may have a claim to compensation. Failure to provide such requested information also makes you guilty of an offence against the Act.
An Outline of the Process
The process starts either with a notice published in the Gazette indicating that the Minister is of the opinion that the land is likely to be needed for any public purpose (which triggers powers to enter and survey the land) or with a declaration published in the Gazette stating that the land is needed for a public purpose, where certain requirements have been met in relation to where the compensation is to come from. The land is then valued by the Commissioner, who then enters into negotiations with the land owner for the purchase, by private treaty, of the land (though the negotiations may predate the publication of the declaration in the Gazette).
If the negotiation stage is unsuccessful, interested persons are given at least 21 days’ notice of a hearing before the Commissioner where the objections, respective interests and value of the land are enquired into. From the date of service of notice of the hearing the Commissioner may take possession of the land, if the Minister so directs.
The factors which the Commissioner is to take into consideration when determining the amount of compensation to be awarded for the acquired land are as follows:
- The market value at the date of the service of the notice of the hearing date before the Commissioner;
- Any increase in the value of the other land of any person interested likely to accrue from the use to which the land acquired will be put;
- The damage, if any, sustained by any person interested at the time of the taking possession of the land by the Commissioner by reason of the acquisition injuriously affecting the actual earning of such person;
- The reasonable expenses, if any, incidental to any change of residence or place of business of any person interested which is necessary in consequence of the acquisition.
The Commissioner then makes an award and the process ends with a notice published in the Gazette indicating that the privately owned land now vests in the Commissioner of Lands in trust for Her Majesty in right of the Government of Jamaica from the date of possession.
If a landowner objects to the award within 6 weeks of the date of the award, the Commissioner is obliged to refer the matter for the determination of the Court. The Court then determines the dispute, aided by appointed assessors.
The Court’s award is statutorily limited to the amount originally claimed by the interested person and shall not be less than the amount awarded by the Commissioner. Accordingly, where a landowner has a reputable valuation of his land that is at complete odds with the Commissioner’s award of compensation, it is likely to be worth challenging the compensation awarded since he only stands to gain.
Alexis Robinson is a Partner at Myers, Fletcher & Gordon and is a member of the firm’s Litigation Department. Alexis may be contacted via alexis.robinson@mfg.com.jm or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.
