IN Jamaica, land can be categorised as either registered or unregistered. This article specifically addresses registered land, which is governed by the Registration of Titles Act. Registered title to land is typically established through two key methods: by way of description or by way of a plan. A title by description is based on a detailed written account that defines the land’s boundaries and other relevant characteristics, while a title by plan relies on a mapped survey that delineates the land’s boundaries.

Boundary encroachments are a common and often contentious issue arising between neighbours who own registered lands. These disputes can emerge from a variety of causes, one of the most common reasons being inadequate due diligence to ascertain the registered boundaries of a property prior to purchase or prior to any form of construction on the land. Constructing or extending a feature of a building outside of the registered boundaries of a property title results in a “physical encroachment”. This encroachment not only violates an adjoining owner’s property rights but also has significant consequences for a landowner who is not vigilant in monitoring their property boundaries.

Limitations to Recovery of Encroached Land

For the landowner whose land has been encroached upon, the timing of the existence of the encroachment places a crucial role in whether they will be able to bring a claim for recovery of the encroached portion of land.

Section 45 of the Limitations of Actions Act states:

“In all cases where the land of several proprietors bind or have bound upon each other, and a reputed boundary hath been or shall be acquiesced in and submitted to by the several proprietors owning such lands, or the persons under whom such proprietors claim, for the space of seven years together, such reputed boundary shall for ever be deemed and adjudged to be the true boundary between such proprietors; and such reputed boundary shall and may be given in evidence upon the general issue, in all trials to be had or held concerning lands, or the boundaries of the same, any law, custom or usage to the contrary in any wise notwithstanding …” (provisos excluded)

The effect of the above section is that on the expiration of 7 years, the reputed or “unofficial” boundary in question (such as a fence or wall) will be deemed as the true and correct boundary between the adjoining lands. This is on the account that either the person whose land has been encroached upon omitted to address the discrepancy prior to the 7-year limitation period or that the neighbouring landowners have accepted and adhered to the reputed boundary. This means that the original landowner will be unable to bring and sustain a claim before the Supreme Court for repossession of or compensation for the encroached portion of land.

Similarly, under section 3 of Limitations of Actions Act, no person shall bring a claim for recovery of any land except within 12 years from the date on which the unauthorised person takes possession of the land or portion of land. If the boundary encroachment in question has been in existence for at least 12 years, the encroached portion of land will be deemed to have been adversely possessed by the encroacher. In that instance, the encroached portion of land in all respects is no longer land belonging to the original owner.

In both instances, the law in essence rewards the encroacher’s long-term use of the land, regardless of the original registered boundary or ownership. Therefore, a landowner’s right to either recover or receive compensation for the encroached portion of land will only be realised where the encroachment has been in existence for less than 7 years and addressed within this period.

Rectification of the Encroachment

For a landowner who fails to address an encroachment prior to the expiration of 7 years, they are now left with an encumbered certificate of title and the sole burden of rectifying the boundary discrepancy. In these circumstances, the landowner’s main goal ought to be obtaining good, clean title in respect of the whole property.

One way by which a boundary encroachment can be rectified is by the re-registration of the certificate of title by plan. The re-registration of the certificate of title by plan will involve the following:

i. Obtaining a pre-checked survey plan to reflect the reality of the boundary; and

ii. An Application to surrender title pursuant to Section 77 of the Registration of Titles Act

Obtaining a pre-checked survey plan of the land will involve engaging a commissioned land surveyor who will draw the property boundaries to reflect the reputed boundary as the correct boundary between the adjoining lands. The drawing will be submitted to the National Land Agency’s Survey and Mapping Division for pre-checking and approval. Once approved, the pre-check plan can be used to properly describe the land in the surrender process.

The application to surrender pursuant to Section 77 of the Registration of Titles Act involves the voluntary giving up of the duplicate Certificate of Title in order for the registrar to produce a new Title with the survey plan reflecting correct boundaries of the property attached.

With the above in mind, landowners are encouraged to be vigilant and proactive in addressing boundary discrepancies before they become irreversible. However, in the face of such limitation periods, a landowner should set his sights on securing good, clean title for the property.

Kandi Chin is an Associate at Myers, Fletcher & Gordon, and is a member of the firm’s Property & Estates Department. Kandi may be contacted via kandi.chin@mfg.com.jm or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.