Tue | Sep 25, 2018

Laws of Eve | Do squatters have greater protection than property owners?

Published:Monday | April 16, 2018 | 12:00 AMSherry Ann McGregor

At the end of the judgment in the case of Perry v Bough and Others [2018] JMCA Civ 12, Justice Brooks said, "The result is not the happiest, bearing in mind that Mr Perry has purchased the premises for a not insignificant sum. It is perhaps time for the legislature to consider the matter." These comments resonated with me, because I have often questioned whether squatters have greater protection than property owners do.

When Mr Perry purchased a property with entrances from Job Lane and the Spanish Town bypass in St Catherine in or about 2014, he apparently did so with the belief that he would have been able to eventually evict the defendants, who then occupied a portion of it. The previous owner had already served them with Notices to Quit and commenced proceedings in court to obtain Orders for Possession.

 

Undisturbed Possession

 

Unfortunately for Mr Perry, his attempts to evict the defendants failed in both the Parish Court and in the Court of Appeal, because the defendants were able to satisfy the court that they had been in open an undisturbed possession of parts of the premises for more than 12 years and had, therefore, acquired title by adverse possession. They were able to do this although the previous owner had lived on one portion of the property until it was sold and had obtained mortgages during the relevant 12-year period. Therefore, he had not abandoned the property and allowed it to be overrun by squatters.

The following findings in the Court of Appeal should be noted:

The mere creation of a mortgage could not assist [a registered owner of property] or his mortgagee in causing time to stop running against a person claiming a possessory title [that is, a squatter], any more than a purported sale of the title for the registered property would have done.

This was a case where [the registered owner] was in exclusive occupation of a portion of the premises while each of the respondents were in exclusive possession of other portions. [In reliance on the previously decided] cases of Chisholm v Hall and Recreational Holdings, the possessory titles (squatter titles) were acquired despite the fact that the paper title holder was in possession of the rest of the land.

The absence of a physical boundary fence [around the property occupied by the squatters] cannot affect the issue of the intention to occupy and possess land.

It amazes me that our legislators have not made the review and possible amendment of the Limitation of Actions Act a priority in order to better protect the interests of the owners of registered property. The Government enjoys greater protection than private landowners do in relation to their property, because a squatter has to remain in possession of state-owned land five times longer (a period of 60 years) than privately owned lands, before that squatter can claim possessory title to it. Where is the justice in this?

In 2008, then Minister of Water and Housing, Dr Horace Chang, reportedly cited informal settlements or squatting as "the single biggest social challenge that we now face in this country and the cause of great social dysfunction". He also said that, "Statistics indicate that there are some 700 informal settlements across the island, which are homes to a possible 15 to 35 per cent of the population."

It is difficult to imagine that this situation has informed, so I call on our legislators to act now in an effort to make the issues surrounding illegal settlements in Jamaica a priority.

- Sherry Ann McGregor is a partner, arbitrator and mediator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com