Adverse possession not the problem, says attorney

SHAW... to abandon your land for 12 long years and then complain after you realised someone else has taken it, and made good use of it, is by no means the fault of the law Amidst fresh concerns about the landless state of many Jamaicans and debate over the use of adverse possession as a route to property ownership, attorney Alexander Shaw says landowners, rather than pushing for an end to that doctrine, should “make good use of their land, and regulate the conduct of anyone who is squatting”. Adverse possession in Jamaica allows an unauthorised tenant (squatter) to claim lawful ownership of property after occupying it openly, continuously, and without interruption for 12 years on private property, or 60 years on government-owned parcels. The original intent behind the law of adverse possession was that landowners should not abandon their properties for indefinite periods; the principle being that land should be used productively, and owners should not “sleep on their rights”. While the recent demolition of homes built on private land in Cooper’s Pen, Trelawny, was the culmination of a long-running legal battle, it has reignited debate around the fairness of the process and whether it should remain on the books. Speaking with the Jamaica Observer about the issue on Monday, Shaw said, “I cannot agree with the privileged Jamaicans who hoard land and leave it to the elements of life. Jamaica is too small to abandon. “To abandon your land for 12 long years and then complain after you realised someone else has taken it, and made good use of it, is by no means the fault of the law. The doctrine of adverse possession is not broken. If you really wanted the land to begin with, you would have taken steps to ensure it is not left to the mercy of squatters,” the attorney argued. “We live in a country where land is a scarce and expensive commodity. Most of who do not own land are descendants of enslaved Africans who, after Emancipation in 1838, got the worst of the worse. Some have worked hard and secured a piece, others have, to this day, been struggling. They say circumstances alter cases, so I would not be too quick to join the privileged ones to call for an end to the doctrine. Rather, I encourage landowners to make good use of their land and regulate the conduct of anyone who is squatting unlawfully,” he added. According to Shaw, there are several routes open to landowners wishing to preserve their legacy. “There is the option of a formal lease. Consent vitiates the doctrine of adverse possession. So either you give notice or consent. Either way you are preserving your interest,” the attorney stated. Responding to sentiments that titling is lost too quietly, as under the Registration of Titles Act (RTA) a person claiming title by possession can apply directly to the Registrar of Titles to become the registered owner with notices only required via newspaper advertisements and gazette publications rather than direct personal delivery, Shaw said, “The process should be fair to both parties”. “Landowners should get actual notice before a new title is generated. A ‘notice in the press’ in a corner where nobody reads is an affront to justice. The National Land Agency should plug the holes of corruption and ensure that its system is beyond reproach. It’s not the doctrine that is the problem, it is the process,” the attorney stressed. The RTA does not explicitly mandate personal service of notices on the registered proprietor in every single case or proceeding. Furthermore, it does not accommodate measures such as e-mail notifications, digital alerts, mandatory attempts to locate overseas owners, or enhanced protections for deceased proprietors and unadministered estates. The timeline for the landowner to raise an objection is also brief. The standard statutory objection period — during which a person with an interest or claim can lodge a caveat to forbid the registration of a title via adverse possession — is typically six weeks from the date of the first publication of the notice in the gazette and daily newspapers, according to the NLA.