Like so many of the vestiges of law in the colonial era, the law governing adverse possession of property is crying out for attention and reform.

Adverse possession in Jamaica is a product of English common law which was intended to prevent land from lying idle or abandoned. In the present iteration of the law, if someone moved onto another person’s property and remained undisturbed for 12 years, openly and continuously, then that person would become eligible, by law, to file for possession of that land.

The accent is on “undisturbed”, for if the legitimate owner should visit the property anytime within that 12-year period and simply put a non-trespassing sign on the land, the occupier has been “disturbed” and one suspects another 12-year period would begin if the owner did not put him off the land. The iniquity of the legal provision is demonstrated in the fact that while the Government allows 60 years for adverse possession of Crown land, the ordinary person with his title for even a one-quarter acre can lose it in 12 years. Go figure!

However, the process of adversely possessing another person’s property is not as easy as it appears on the surface. A tedious process through the courts is often anticipated. What gives me grave concern is the principle of one’s right to one’s land and that the law encourages people to occupy other people’s land and rewards the occupiers by giving them possession after 12 years.

A resident extricates her popcorn machine from the rubble of her demolished house in Cooper’s Pen, Trelawny, where a dispute over land ownership has dragged on for years. (Photo: Horace Hines)

I am no lawyer, but in the first place, it should be illegal for anyone to enter another person’s property and disfigure it in any way without the owner’s permission. This is so whether the person is farming the land or putting a board or concrete structure on it. The fact that the owner, for reasons best known to himself or herself, has not visited the property in 12 years should not be a reason for any Government to say to an illegal occupier — I am trying hard not to use the word “squatter” or “squatting” as these evoke pejoratives that besmirch the efforts of many poor Jamaicans just wanting a place to live — that it is okay to do what you are doing.

Let us be clear: Land tenure in Jamaica has been a vexing issue in post-Emancipation Jamaica. Our forebears were forced to settle informally on unused or abandoned estates, which was more or less tolerated by the colonial authorities. Thus, a long tradition of occupation without title ensued. I believe that this tradition has reached a critical juncture in Jamaica today.

Immediately after Emancipation, hordes of Jamaicans were freed and let loose literally to roam to find a piece of land where they could build “a little something” they could call home. It is this continuing reality for many Jamaicans which cause me not to call those desperately seeking shelter squatters. With all the best will in the world, an ordinary Jamaican would prefer that he or she could own a piece of land legitimately. Many who occupy other people’s estate do so often fully ignorant of existing laws or cajoled by some, including politicians, who should know better.

So, given this historical pedigree, I am very sympathetic to so-called squatters. They have been victims of successive governments since Emancipation, especially since our putative Independence, and have been used as pawns in the political chess games of those seeking power. They have been kicked from one end of the football goal post to the next with grandiose promises that have failed to bear fruit.

Adverse possession allows a person to claim legal ownership of a property if he/she occupies it openly and without interruption for 12 years on private land or 60 years on government land.

There are acres of non-productive government land that could be utilised to provide shelter for people at a reasonable cost. Believe me, even if the Government cannot put up the shelter — which successive governments have proved themselves incapable of doing in any reasonable and measurable way — people will use their ingenuity to “put up something”. They only need to have a “piece of paper” in their hands.

And this, Robert Montague, minister without portfolio in the Ministry of Economic Growth and Infrastructure Development with direct responsibility for land titling and settlements, should not be something hard to do in every parish that has vast acreages of unused land not suitable for agriculture or bauxite mining.

And speaking of bauxite mining, what is the status of vast acreages of land that have already been mined out in Manchester, St Elizabeth, and St Ann, and which could be used for housing and shelter? Who owns those acres of land? If it is the bauxite companies, a legal provision should be made for them to turn the land over to the Government after they have done the mandatory reclamation. Or, if they should retain them, they should be impelled to utilise them for housing in an expeditious way. This, one can be sure, they will not want to do.

But as the Cooper’s Pen bulldozing of homes scenario brought forcefully to our attention, the housing crisis, as the late transport mogul Ezroy Millwood would remind us, is in a “state of chronic”. Adverse possession, as presently constituted, is not the way to go. As the term suggests, it sets up unnecessary social tension and animosity between people, and in worst-case scenarios, may even lead to violence and death.

There are many reasons, some I am sure good, why a person with a registered title may not be able to visit his or her property for 12 years in a row, especially if he/she is temporarily residing outside the country. A registered title gives an individual a right to his/her land, which should not be infringed by any occupier, however well intentioned. And legislation should not encourage breaking the law. The moment a person sets foot on land that does not belong to him/her is the very moment the law is broken. This should not be rewarded in any shape or form.

Dr Raulston Nembhard is a priest, social commentator, and author of the books Finding Peace in the Midst of Life’s Storms; The Self-esteem Guide to a Better Life; and Beyond Petulance: Republican Politics and the Future of America. He also hosts a podcast — Mango Tree Dialogues — on his YouTube channel. Send comments to the Jamaica Observer or stead6655@aol.com.

Raulston Nembhard