Mon | Feb 27, 2017

Remedy for correcting encroachments Pt. 2

Published:Sunday | December 7, 2014 | 12:00 AM
Leslie B. Mae
Craig Francis
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Today, we have one of the most experienced and distinguished commissioned land surveyors gracing this column. The guest columnist, Leslie B. Mae, has more than 40 years experience and is a licensed land surveyor in Jamaica and was also licensed in the State of Florida.

He has also worked in England, Pakistan, and the United Arab Emirates. Today, he looks at additional remedies for correcting encroachments as a follow-up to last week.

The essential principle behind the Registration of Titles Act is that once land is brought under the act, the registered title is good against the world and so there is no need for any investigation into the prior history of the ownership.

Consequent on this basic principle is the fact that prior registration of any interest in land, apart from fraud, confers an indefeasible title. This seemingly indefeasible feature is not absolute, however. Lands under the Registration of Titles Act are subject to any rights acquired over such lands, subsequent to registration, under any statute of limitations.

The importance of provisions of the Limitations of Actions Act cannot be overemphasised, given the large number of absentee landlords, the high incidence of squatting, and the highly developed technique of land capture that prevails in Jamaica.

The Limitation of Actions Act sets out the period for bringing an action to recover land lost as a result of squatting or encroachment by adjoining lands. In the case of lands owned by the persons or entities this period is 12 years, and in the case of lands owned by the government that period is 60 years.

The effect of this limitation is that a landowner with a registered title could have that title defeated by a squatter who occupies the registered land for a period in excess of 12 years. Here we must distinguish between the registered title to land and the boundaries of such land. All challenges for the rectification of acquiesced boundaries are barred after seven years. The result of all this is that a registered title can be completely defeated by adverse possession for the prescribed limitation period.

For the purposes of the Limitation of Actions Act, time begins to run in favour of the person taking possession against the landowner immediately upon taking possession. To satisfy the act, possession must be exclusive and continuous, open and visible, and without force. These basic principles apply equally to registered and unregistered land.

Contrary to the thinking of many Jamaicans, the mere payment of taxes, fencing, cutting and removing of timber, or reaping crops will not be sufficient to establish adverse possession under the act. Continuous and exclusive possession for the prescribed period is vital in establishing adverse possession.

What has all this got to do with remedies for encroachment? The following example illustrates both the meaning and effect of an encroachment and the remedy under the law. The example is based on an actual case brought before the Supreme Court of Jamaica in 2008. The actual names of the parties have been changed to protect their privacy.

Mr Brown had accused Mr Smith, his adjoining neighbour, of trespassing on his land. The trespass was a result of an encroachment caused by the incorrect location of a chain-link fence dividing the two properties.

Brown sought to have the offending fence removed and re-erected along the registered boundary. Surveyors have confirmed that the fence was not along the registered boundary but was in fact on Brown's land. Accordingly, Brown stood to lose a portion of his land, the area encroached on, if the fence was allowed to remain in place.

Smith, on the other hand, contended that he had acquired the land which he had enclosed by virtue of his open, continuous, and exclusive use well in excess of the statutory period under the Limitation of Actions Act. He further denied that Brown was entitled to the order that he sought and asked the court instead to make a declaration that he had a beneficial interest in the disputed land.

Judgment was handed down in favour of Smith on the grounds that the physical location of the boundary fence was located on the property for in excess of seven years, and as such became the true boundary for the purposes of Section 45 of the Limitation of Actions Act.

Further, Brown failed to act for a period in excess of 12 years even though he was aware that the fence encroached on his property. As a result, Smith had acquired a Possessory Title to the disputed land and was entitled to have the Register Book of Titles rectified to recognise his ownership.

Boundary rectification and subsequent rectification of the Register Book of Titles is perhaps the most important remedy for encroachment and should be a warning for absentee landowners and a call to action for those owners who are aware of squatting or encroachments on lands belonging to them.

Leslie B, Mae B.S., M.S.

Commissioned land surveyor

Keep sending your questions and comments and let's continue to explore A Matter Land. Until next time, traverse well.

n Craig Francis is a commissioned land surveyor and managing director of Precision Surveying Services Ltd. He can be contacted for questions or queries at craig_r_francis@yahoo.com or his Facebook page Precision Surveying Services