Private-property owners woes - Legal battle for private landowners while the state just signs eviction orders

Published: Sunday | May 24, 2009

A group of houses situated among a cluster of trees in Retirement, St James. - File

A COURT battle is the only safe and legal option available to private landowners who want to evict squatters from their properties, a ministry of housing official has disclosed.

Basil Forsythe, director of the Squatter Management Unit in the Ministry of Water and Housing, told The Sunday Gleaner that it was "more challenging" for private landowners to have squatters removed than it is for the Government.

"It can prove a daunting task since delays, sometimes lengthy ones, have become a mainstay in the local justice system," he said.

Forsythe explained that the commissioner of lands, as well as the relevant Government minister have the autonomy to issue eviction orders without going through the courts.

"As it is right now, the private man has to rely on existing legislation relevant to the issue. There is no piece of legislation that really addresses the modern-day squatting situation in any effective way. Definitely, there is a need for such legislation," Forsythe said.

He pointed out that there are two pieces of legislation that deal with illegal occupation: the Trespass and the Judicature (Resident Magistrates) acts. While the former legislation treats trespassing as a criminal offence, the latter regards the practice as a civil matter.

Forsythe explained that if squatters are allowed to take up residence for more than a year without any attempts to have them removed, the Trespass Act cannot be used in court. "Section 7 (of the Trespass Act) limits the time available to pursue action against the trespasser to one year," Forsythe said.

One-year limit

A review conducted by the Ministry of Justice's Legal Reform Department in 2005 said: "Where the squatter/trespasser has been in quiet possession for a year or they have a just claim or apparent title, the court will not be able to convict the squatter of trespass."

It was also noted in the review that the rationale for the one-year limit was not immediately clear and required further research. "However, it should be noted that this act was first promulgated in 1851 in the aftermath of emancipation," reads another section of the review.

The report also said: "It is open to consideration whether the period of one year is sufficient time in present-day Jamaica for the owner to take action. While a landowner is not without remedy, the simple procedure and criminal sanctions of the Trespass Act would not be available if the squatter can show that he has been in quiet possession of the land for one year."

The review rendered that the tenet in question seemed to be out of step with current realities as the period for a claim of adverse possession is 12 years in the case of private property and 60 years for Crown land.

"As the problem of squatting has become widespread, consideration should be given to extending the period in section 7 in which action can be taken under section 6," the review recommended.

Forsythe agreed that the existing legislation was deficient and revealed that there is a move afoot to have the Trespass Act amended to reflect the current realities.

The Judicature Act does not have this one-year limitation. Therefore, a civil suit can be filed against the trespasser and another suit for compensation for the period of occupation could also be filed, Forsythe explained.

Court order

If successful with the legal battle, the court will give the landowner the authority to have the squatter removed. "Once you have a court order, the police can now move in to assist the landowner."

"Usually, the police doesn't want to move without a court order," Forsythe said.

"This is true," says Superintendent Michael James, branch office at the Mobile Reserve. He pointed out that, once the court issues the eviction order, "the police would assist in the endeavour to ensure there is no breach of the peace".

James, who has assisted with the removal of squatters from privately owned lands, said the police could attempt to employ dialogue, but if the unlawful occupants refuse to willingly vacate the premises, a court order would have to be obtained to forcibly remove them.

The Sunday Gleaner was unsuccessful in its effort to get comments from Horace Chang, minister of water and housing, and Elizabeth Stair, commissioner of lands, as they did not return our calls.