The law of adverse possession must be recalled

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. 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.