ATTORNEY-AT-LAW Alexander Williams in calling for a review of the law of adverse possession, says the principle inadvertently legalises squatting and trespassing.
Williams, who on Friday said the issue is one which should be "settled in a final Caribbean way", in a further interview with the Jamaica Observer said it was among several "other areas of the law where the usual common law English jurisprudence that we apply here might not necessarily suit our Caribbean reality" and as such should be tweaked.
Adverse possession allows a person in possession of a plot of land for at least 12 years unchallenged to get a title for it if the paper owner fails to assert his own superior title within the limitation period set out in the Limitation of Actions Act. That Act bars the owner on paper from recovering possession of land after the expiration of 12 years in the case of a private citizen and 60 years in the case of lands owned by the Crown. The applicant must prove, among other things, that acts of ownership have been performed in relation to the property such as fencing or upkeep. There must also be proof that for the relevant period there were no demands made for the individual to leave the property and that the tenancy was undisputed.
Williams, who made it clear that his views were personal and not that of the Jamaican Bar Association, which he heads, said the law as it stands is permitting the violation of well-intentioned citizens.
"I am pretty sure every family has members who have gone abroad to make life for themselves and most likely would buy a piece of property and put it down with the intention of coming back to live on the property or to develop the property. That is a quintessential aspect of Jamaican culture. The law of adverse possession doesn't fit that part of our culture," Williams, a former Jamaica Labour Party senator argued.
"Let us say you go away for 24 years, struggling as a bus driver in the United Kingdom or as a farm worker in the United States, you buy a piece of land in Jamaica and somebody comes and sits on your land for 12 years, you don't know anything about it, and you lose the land. Is that something we should accept in our own Jamaican jurisprudence as an acceptable way of ordering ourselves?" Williams questioned.
He argued further that the statute also unfairly enables unsavoury characters who have an entrepreneurial bent.
"Land in countries like Jamaica is expensive for a particular reason. Where we are in the Caribbean, when compared to a lot of other places in the world, we are in a fairly stable environment. Do we want to subject our development, given that amount of leverage to the principle of adverse possession, when persons who may or may not be developing land in a particularly appropriate way to be able to do what is, in effect, stealing land? That is what it is, let us call it what it is, stealing land. Squatting is stealing land," the attorney reasoned.
"So somebody who is squatting on land, hasn't paid for it and hasn't inherited it, is hoping that for a period of time a landowner may not pay sufficient attention to the land and take it. That's what the law is allowing. I raise that in the context of our own jurisprudence. It may well be that we might be able to tweak judge-made law on the principles of adverse possession to fit our Caribbean reality," Williams noted.
Owners of property can protect themselves against adverse possession by, among other things, placing "No Trespassing" signs on the property, ensuring that periodic surveys are done, in addition to routine inspections to ensure that there are no unauthorised occupants.