In a Republican presidential debate earlier this year, Donald Trump said that eminent domain is an absolute necessity because without it there would be no roads, hospitals, schools, etc.

He was referring to the power a national government has to take privately owned property for public use. Trump was under fire for allegedly having used eminent domain to obtain property for a parking lot for one of his casinos, arguably not a public use.

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 or be 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.

So 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.

Recently, the GOJ has been using the Act to acquire property for Highway 2000 and the 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 or 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:

1. There is no legal requirement that you agree to a sale to the GOJ by private treaty.

2. 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 (which is something that must be done where no private treaty sale is agreed upon).

3. Interested individuals dissatisfied with an award of compensation by the commissioner may object to the survey of the land, the amount of the compensation, the individuals to whom it is payable, or the apportionment of the compensation among the individuals interested.

4. If an objection is warranted, acting quickly is important. Any challenge must be made within six weeks from the date of the commissioner’s award and the court has no jurisdiction to enlarge that time.

5. 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.

6. The commissioner may require that you provide information about the land and interested people 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 of the land by private treaty (though the negotiations may predate the publication of the declaration in the Gazette).

If the negotiation stage is unsuccessful, interested individuals 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:

a) The market value at the date of the service of the notice of the hearing date before the commissioner;

b) 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;

c) 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;

d) 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 six 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 an associate at Myers, Fletcher & Gordon and is a member of the firm’s Litigation and Property Departments.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.