A large percentage of people derive ownership status in land by way of inheritance, gift or purchase, while others, by way of adverse possession.

In recent times, the application for adverse possession has increased at the National Land Agency. Therefore, property owners who have migrated from Jamaica or from one parish to another must understand that there are certain duties and responsibilities attached to owning registered and unregistered lands.

Failure to carry out these responsibilities results in squatters occupying abandoned property/land while property owners are not aware. Consequently, property owners find themselves in courts of law in an effort to determine ownership.

Squatting is the occupation of property without the registered owner’s knowledge or permission. A squatter, under the laws of Jamaica, can claim superior right of ownership where the court finds that the registered title-holder failed to do anything for upwards of 12 years, there was an intention to occupy, and the squatter was undisturbed and unmolested.

This windfall is also known as adverse possession. Adverse possession is regulated by the Registration of Titles Act, the Limitation of Actions Act, and a plethora of case laws.

The Limitation of Actions Act states that where registered owners fail to take action within 12 years, squatters may have a claim for adverse possession, while to have a claim on government land squatters must show an unbroken 60-year occupation before the squatter can make an application for adverse possession.

The case of Recreational Holdings 1 (Jamaica) Ltd (Appellant) v Lazarus (Respondent) (Jamaica) [2016] UKPC 22, held that if one holds the registered title to land and the squatter has obtained possessory rights without the knowledge of the registered owner, then the registered title-holder will lose his or her rights to ownership.

Additionally, squatters will not lose their legal right to the land if they have delayed in applying for title by way of adverse possession. Therefore, once the legislative period has passed for the registered owner to act, the squatter can seek to make an application for adverse possession.

Finally, under these circumstances, a registered title-holder who sells property to a bona fide purchaser for value will not be in a position to pass good title. Therefore, the purchaser could bring an action against the defeated title-holder for the return of the purchase money.

REGISTERED TITLE

Property owners who have not attended to their property for upward of 12 years must conduct a title and caveat search at the National Land Agency to ensure that their titles are still valid before sale.

APPLICATION PROCESS

Obtaining a title by way of adverse possession in Jamaica is not a difficult process; the squatter needs only to submit to the Registrar of Titles:

1. A formal affidavit;

2. Two or three affidavits from persons who know of the occupation;

3. A certified copy of the said duplicate certificate of title;

4. A certificate of payment of property taxes;

5. A Surveyor’s Identification Report;

6. Proof that attempts were made to contact the registered owner; and

7. Registration fees.

LEASE AND LICENCE

Usually property owners grant a licence or lease to a person and that person becomes a legal occupier of the said property. However, property owners make life-changing decisions, for example migration, and as such fail to carry out his/her duties for upward of 12 years thereby resulting in an expired lease or licence. That legal or permitted occupier status would change to that of a squatter because of the property owner’s inaction, for example failure to collect rent, give notice or renew lease. This squatter can now make a claim against the property for adverse possession.

ESTATES

Beneficiaries of property must ensure that they carry out all the necessary investigations to discover where the deceased’s properties are located and conduct a physical check on each property, irrespective of the terrain or location.

Frequently, tenants enter into lease or licence arrangements and the property owner dies. In cases like these, the beneficiaries cannot ignore the occupant’s occupation or it can result in a possible claim for adverse possession.

Beneficiaries must enter into new contractual arrangement with such an occupant or give notice to vacate in an effort to prevent adverse possession.

MORTGAGE

Monthly mortgage payments will not bar the squatter from obtaining title by way of adverse possession, where a property owner has failed to attend to his/her property responsibility for upwards of 12 years.

RECOVERY POSSESSION

Where the limitation period has not yet passed, property owners must serve notice to quit on the squatter immediately after he/she has obtained knowledge of the squatter’s occupation.

The registered owner must make a report to a police officer at a station in the area where the property is located. Under these circumstances, the registered property owners may retain the services of an attorney-at-law to file a claim in the parish court to have the squatter removed.

However, where there is dispute as to inaction and the limitation of action has passed, the registered owner should obtain the services of an attorney-at-law to represent him/her in Supreme Court, at the Judicature of Jamaica, to have the dispute resolved.

HOW TO PREVENT SQUATTING/ADVERSE POSSESSION

Responsible property owners should ensure that:

1. Property taxes are paid annually;

2. Visits are made to their property at least once per year;

3. Property used to graze animals or to carry out other agricultural activities must have a lease arrangement, even if that person is a relative. The lease documents must be witnessed by a justice of the peace if the party/parties are in Jamaica, or a notary public where the party/parties are in the United States of America;

4. A bold sign to warn the public at large not to trespass is posted on the property;

5. Property is kept cleared of all overgrown shrubs if possible;

6. If land is unregistered, that property is surveyed, pegged and fenced;

7. Registered land is properly pegged and fenced; and

8. Homes are protected by having all windows and doors boarded to prevent entry.

Venice Williams-Gordon is an attorney-at-law. She can be contacted at vwilliams@ lswlegal.com .