Adverse possession, the right to land, and what Parliament must weigh before it changes the law
By: Sayeed Bernard, Attorney-at-Law
Most of what I have heard since the Cooper’s Pen Demolition has been an argument about whether it was lawful. On the court record it was, and I explain why below. The more useful question, though, is one the country has been avoiding for a long time: what should our law say about who has a right to land, and what, if anything, should we do about adverse possession? The government had raised this before Coopers Pen. In the Sectoral Debate in June, Minister Robert Montague told the House that some people had made an industry out of adverse possession, and that the government was looking at referring applications to local Adjudication Committees. Since August there have been calls to abolish the doctrine altogether. The Coopers Pen record says a good deal about what an amendment can fix and what it cannot.
What the courts decided
In 2007 the company sued ninety-nine occupants, representing about a hundred families, some of whom said they had been there for more than fifteen years. They had concrete houses, water and electricity, and they said the land had become theirs by long possession. That claim went to trial before Justice Donald McIntosh, and it failed.
On 6 April 2010 McIntosh J ordered recovery of possession and damages of fifty thousand dollars against each defendant. He also ordered the occupants themselves to demolish and remove their structures, a point that has barely featured in the public discussion. There was no appeal. The damages were never paid, the houses were never removed, and the settlement grew.
When the company moved to enforce in 2012, applications were filed to stay the judgment. They were brought in the occupants’ names, but the supporting affidavits came from the managing director of the Housing Agency of Jamaica, as authorised agent of the then Minister of Housing. The Minister had declared the land an improvement area under the Housing Act, so that it could be compulsorily acquired and the occupants regularised where they stood. McIntosh J refused the stay, and his reasons are worth reading:
“Given the History of this case; the length of the trial and the efforts made by the Court to assist the Defendants, who seem to have been misled by politicians into squatting on private property, notwithstanding their unlawful act this Court empathises with the gullible Defendants.”
“It is the Court’s view that the Application is devoid of sincerity, it is an attempt to pervert the course of Justice and an Abuse of the process of the Court.”
The Minister then sued the company in his own name. In February 2014 Campbell J struck the claim out. The Minister’s own affidavit described a vibrant community of concrete homes with utilities, which is the opposite of the conditions section 6 of the Housing Act was written for. There was no scheme and no ministerial approval of one. Most importantly, there was no public purpose. Campbell J said:
“The Housing Act and The Land Acquisition Act do not provide for the compulsory acquisition of privately owned land in order to transfer an interest to a community of persons who have occupied those lands despite the efforts of the owner to evict, and in defiance of Orders of the Supreme Court. I share the view of my brother McIntosh J, that the application of the claimant is insincere and iniquitous. The Constitution protects private property, and does not provide cover for the acquisition of private property in order to regularise the unlawful occupation of squatters.”
And, in a passage that reaches well beyond Trelawny:
“I have not been shown any authority that imposes an obligation on a private landowner to make available his land to a community of persons in unlawful occupation in order to prevent those persons bringing on social unrest. The Constitution does not reserve the right to ownership of large tracts of land to persons of any particular social class, colour or creed. … This court has formed the view that the hardship that has been visited on the defendant appears to be a consequence of a view, on which public officials and the claimant seemed to have acted, that Mr. Chisholm not being from a line of traditional large landowners, has no right to ownership of such relatively large tracts of land. If I am correct in that view, the remedy to that malady is an emancipation of those minds so enslaved.”
The Court of Appeal dismissed the Minister’s appeal in April 2016. F Williams JA (Ag), with whom Phillips JA and Brooks JA agreed, summed up what the government had been doing:
“…what appeared to have been at play was, at best, a misguided attempt to use the provisions of the Act in an effort to achieve certain social objectives, for which the Act does not provide.”
That was the last word from the courts. For ten years after it, nobody relocated the families and nobody bought the land. Then the bulldozer came.
What Coopers Pen does and does not tell us
It would be easy to hold up Coopers Pen as proof that adverse possession is too weak, or too strong. I do not think it proves either. The possessory claim was tested at trial and lost. The owner did not sit on its rights. It sued and won, and on the evidence Campbell J accepted, it then spent years writing to the Housing Agency, to other agencies and to the Prime Minister asking for help with the people on its land. What broke down was enforcement, and the conduct of the State. I doubt that any amendment to the Limitation of Actions Act would have saved a single house in Trelawny.
That is no reason to leave the law alone. It is a reason to be careful about selling an amendment as the answer to what happened last month. The record is still useful to the debate, because almost every issue a reform has to confront turns up somewhere in it.
The law
Section 3 of the Limitation of Actions Act gives an owner twelve years from dispossession to bring a claim for the land. Section 30 then does something people often miss: when the twelve years run out, the owner’s title is extinguished. The owner does not simply lose the right to sue. The title is gone. For registered land, sections 85 to 87 of the Registration of Titles Act let the person in possession apply to be registered as proprietor in the owner’s place.
The occupier must prove factual possession and an intention to possess, which means an intention to keep everyone out, the paper owner included, so far as is reasonably practicable. Those are the tests from Powell v McFarlane and J A Pye (Oxford) Ltd v Graham, and our courts apply them routinely. The possession must be without the owner’s permission and unbroken for the full twelve years, and the burden is on the occupier. So, it is not true that twelve years on a piece of land makes it yours. Paying the property tax and getting a survey diagram may help as evidence, but on their own they prove very little.
It is equally untrue that an owner can protect himself by visiting now and again or putting up a sign. Section 12 says a mere entry on the land is not possession, and section 13 says no claim made upon or near the land will preserve the owner’s right. What actually stops time is a claim for possession, the owner genuinely retaking the land, the occupier accepting a tenancy or licence, or a written acknowledgment of the owner’s title signed by the occupier under section 16.
Three other provisions matter a great deal here. Sections 14 and 15 allow time to run between co-owners and within families, so a relative who stays on family land can, in the right circumstances, extinguish the shares of those who left. Section 18 says time is not extended because the owner is “beyond the seas”, which means a Jamaican in Brooklyn or Birmingham has no more protection than one in Brown’s Town. And section 38 gives the Crown sixty years against people on its land, where everyone else gets twelve.
What an amendment has to deal with?
The first thing is the Constitution,
Campbell J’s judgment is a reminder that the registered owner’s property is protected, now under section 15 of the Charter of Fundamental Rights and Freedoms. But once section 30 has operated, the person in possession holds a title too. If Parliament passed an amendment that tried to revive titles already extinguished, it would be taking land from one person and giving it to another, which is exactly what Campbell J said the State cannot do. Any reform will need to apply only to possession that begins after it comes into force, or at the very least only to periods not yet completed.
The second is notice.
The point of the Torrens system is that the register can be relied on, and adverse possession against registered land sits awkwardly with that. England dealt with this in the Land Registration Act 2002. There, time alone no longer defeats a registered title. After ten years the squatter may apply, the registered owner is notified and can object, and if he objects the squatter generally fails unless he falls within a few narrow exceptions. If the owner then does nothing to recover the land within two more years, the squatter can apply again and succeed. Under our law, whatever notice an owner gets comes after section 30 has already taken the title. I think moving that notice to before the loss would do more for the diaspora than any lengthening of the period. While we are looking at periods, the Crown’s sixty years will also need an explanation. If twelve years is enough for the owner of a quarter acre, the State should say why it needs five times as long for itself.
The third is the kind of possession the law rewards.
If the complaint is that people are fencing idle land, paying a few years of tax and building a paper case, then Parliament can require actual residence or genuine productive use, and can say plainly that paying property tax is neither necessary nor enough. Family land needs its own treatment as well. Possession within families is usually a matter of arrangement or plain affection, and a presumption that a relative’s possession of family land is permissive, together with easier administration of estates, would prevent a good deal of grief.
The fourth is who decides.
Local Adjudication Committees would bring real knowledge of who has been on a piece of land and for how long. But McIntosh J’s remark about occupiers being misled by politicians should make us cautious. Any committee must be independent, must decide on evidence, must give reasons and must be answerable to the courts. A property watch service would help too, provided that owners, including those overseas, can keep a current address on the register and are told automatically when an application is made against their title.
Finally, there is the State.
The Court of Appeal was clear that the Housing Act could not be bent to serve social objectives it was never designed for. If Parliament wants a way to regularise long-standing settlements on private land, it must build one openly, with a genuine public purpose, full compensation, the owner’s participation and access to the courts, and it must never work as a reward for ignoring court orders. A simpler step would be to require that the housing authorities be notified whenever a possession order is made against a large settlement, so that relocation is planned when judgment is given and not after the houses are gone. The Prime Minister has now called Coopers Pen a humanitarian tragedy and promised to relocate the families. I am glad of it, but it comes ten years after the Court of Appeal closed the last door.
Where this leaves us?
I have tried to be fair to both sides, because the law has to be. A registered title is protected by the Constitution whoever holds it, and Campbell J was right to say so as bluntly as he did. It is also a fact that, on the government’s own estimate, somewhere between 750,000 and 900,000 people in this country live in informal settlements, most of them because there was nowhere else to go. Whatever Parliament does with adverse possession has to be written with both of those facts in view.
A court order does not go stale because it is ignored. It sits there, and it waits. Coopers Pen shows what happens when a country lets a problem wait in the very same way.
