IN the 1980s hit Just the Two of Us, Bill Withers famously sings, “Good things might come to those who wait, not for those who wait too late.” Not only does this phrase apply in one’s dating or romantic life, but also in the ownership of land in Jamaica.

Under the concept of adverse possession, a person can take ownership of your land if that person can prove that they were in possession of your land, without your authorisation, for at least 12 years. This ‘12-year clock’ starts ticking when the unauthorized person (colloquially known as a squatter) takes possession of your land. After 12 years of uninterrupted possession the squatter, who has dispossessed you of your land, takes an interest in your land and can be deemed the new owner.

Although many argue that this regime is unethical and unfair, legislation supports the squatter in possession of the land by: (1) extinguishing the right and title of the landowner (2) allowing them to apply to Titles Office for a Certificate of Title endorsing them as the registered proprietor (3) preventing the landowner from seeking to re-enter the land and/or commencing a claim in court to recover the property from the squatter.

Good things might come to those who wait (12 years) ie the new owner of land.

An application to be registered as the new owner may be made to National Land Agency by submitting the following:

1. Application form;

2. Applicant’s statutory declaration;

3. Supporting declarations from two independent declarants who are well acquainted with the subject land;

4. Copy of certificate of title;

5. Property tax certificate;

6. Registration fees;

7. Stamp duty (payable to Tax Administration Jamaica); and

8. Survey diagram plan.

For an adverse possession application to be successful, it is critical that the applicant demonstrates his overt acts of possession over the land for at least 12 years. Such acts may include: erecting and or maintaining the boundaries of the property with fencing; cultivating the property; de-bushing; paying property taxes etc. However, please note that despite the common myth believed by most Jamaicans, the payment of property taxes does not automatically make one the owner of land! Paying property taxes merely strengthens one’s claim to ownership; it is not conclusive. If successful, the squatter effectively displaces the registered owner, becoming the new owner of the land.

Good things may not come to those who wait too late (after 12 years) – the former landowner

Science enthusiasts know that, under Newton’s Third Law of Motion, for every action there is an equal and opposite reaction. Similarly in adverse possession matters, where the squatter gains legal title to land, the registered proprietor loses ownership of same. Although being named as the proprietor on the certificate of title is typically described as having an indefeasible title, this strong evidence of ownership can be defeated by, for example, fraud or adverse possession.

Landowners beware! Unknown trespassers who enter upon your land are not the only persons who can adversely possess your property. In the Jamaican case of Wills v Wills (2003) 64 WIR 176, the Privy Council found that even a joint owner of property can adversely possess property as against another joint owner, where the adverse possessor is found to have exercised acts of possession solely. This case concerned property that was previously owned jointly by a man, who later died, and his ex-wife. The Privy Council found that before the deceased man died he occupied and enjoyed the property as if he were the sole owner; he occupied and used the property with his new wife. The ex-wife was effectively dispossessed of the property by failing to exercise any act of possession for over 12 years. The matter concluded with the new wife of the deceased man being able to acquire good title to the property (in her capacity as personal representative of the deceased’s estate).

Landowners ought not to wait until their rights are threatened before taking steps to assert their ownership. Practical ways that a proprietor can avoid losing land to a squatter include:

1. Erecting and maintaining a fence around the property, to secure the boundaries.

2. Installing “No trespassing” and/or “Private Property” signs in conspicuous places on the property

3. Inspecting the land on a regular basis for any unauthorised activity, structures and occupants

4. Consider employing a caretaker or property manager for the land. A proper arrangement should be set up between the owner and the caretaker to avoid the possibility of the caretaker attempting to adversely possess the same property.

5. Frequently de-bushing the land

6. Obtaining survey reports from commissioned land surveyors.

If it is discovered that someone is attempting to claim ownership of your property, depending on the extent and period of possession of the squatter, all hope may not be lost. With the advice and representation of an attorney, the landowner can initiate court proceedings for recovery of possession of land.

Don’t snooze on your rights! The sooner you act, the greater your chances are of keeping the land you are entitled to have.

This article was written by Stephanie Barnes, a graduate of Norman Manley Law School hoping to be called to the Bar, and reviewed and approved by Krishna Desai, a partner in the Property and Estates Department at Myers, Fletcher & Gordon. He may be contacted at krishna.desai@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.