Garth Taylor, Guest Columnist
The reasons for the recent fixation on the widespread problem of squatting across our island may not be so clear, as are the numerous suggestions and policy proposals geared at its alleviation.
Indeed, what is not in doubt is that so significant has been its effect that a Squatter Management Unit has been established within the Ministry of Housing, which has noted that there are more than 700 squatter settlements across the country. Other notable developments directly linked to squatting are the debate of the new Trespass Act and a wealth of commentary that is once again flooding the media.
It cannot be ignored that the formation of informal settlements is accompanied by problems such as electricity theft; unsightly structures in otherwise clean neighbourhoods; criminal activity in otherwise serene surroundings; rooted unemployment; vagrancy; lack of basic amenities and poor hygiene; health risk, including diseases; a lack of channelled drinking water; inadequate or no sewage systems, among other things.
However, these have been features of the Jamaican context since Independence. In fact, even the runaway slaves who escaped the plantations into the hills were squatters on Crown land until they acquired ownership rights in the form of the modern Maroons. It is, therefore, not alarming that the average man frequently associates squatting with the need for immediate attention and solution.
What most people do not know, however, is that the system of landownership that exists in Jamaica is what breeds the squatting problem.
Jamaica operates a Torrens land-registration system, where landownership is satisfied by means of a registered title that is supposedly indefeasible. However, our system still recognises ownership of land where the land is not registered. The latter is known as the common-law system, and is predicated on the tenets that land is not really owned but is only entitled to the person who has the superior claim or title for the time being.
What this means is that if land is not registered, a person in possession is so entitled by virtue of a claim to ownership which may or may not be supported by documentary evidence. This also means that where such unregistered land is unoccupied, any person walking off the street and in possession may make a claim to ownership that is recognised in law and is as good as any other.
Indeed, it is important to note that both mechanisms of landownership recognise that the title can be defeated. If the land is registered, that title can only be defeated in few circumstances, including adverse possession, commonly known as squatter's rights.
This is where non-owners occupy land for a period of time such that they enjoy undisturbed possession until the prescribed limitation period for bringing an eviction action (12 years for privately owned land and 60 years for government land) is expired.
After expiration of this period, the owner of the land is barred from legally removing the squatter. To put it simply, the squatter in possession of premises is as legitimate as the owner until proven otherwise.
It has been said that the rationale for such a squatting feature in our land system is that land, being such a crucial resource to our economic development, must not be idle. Indeed, as the proponents of such arguments would ask, if property is abandoned, why shouldn't enterprising individuals be allowed to make use of it?
With such a question in mind, it would be surprising, though, if a historical search of landownership in our country reveals that some of our most wealthy families acquired their massive estates through some of these tactics.
NEW TRESPASS ACT
It's true, though, that not all land occupied by squatters is abandoned. In Jamaica, for example, in an attempt to balance the interests of landowners against potential squatters, we have long had on our statute books, legislation allowing for the prosecution of persons who trespass on lands of others. This has been done through the Trespass Act, which is designed to prosecute persons who enter upon lands owned or lawfully occupied by others within a one-year period.
It is curious, however, that England does not have any parallel legislation which criminalises squatting in any wholesale way, save for few provisions in their Criminal Justice and Public Order Act which came into force as late as 1994.
Now at least one of our legislators is embarking on an attempt to expend massive resources to amend the Trespass Act to extend the criminal jurisdiction of prosecutors as it relates to squatters by proposing to extend the one-year period within the act.
More pragmatic persons perhaps will be asking whether our policymakers here in Jamaica think they are smarter than the British who framed the very common-law land system in all their wisdom and on which we so heavily rely.
One must also not forget that squatting is not unique to Jamaica or England. Indeed, it has plagued most Third-World countries, such as Bangladesh, for decades in an arguably much more vicious way than in Jamaica, but they have long recognised its intrinsic nature to their land system.
Furthermore, even grandeur societies such as the United States and some European nations are not immune, but they are evidently more immersed in tackling issues more detrimental to their existence. In fact, the European Court and English Court of Appeal have held that squatting and squatters' rights are human rights compliant.
It is also important to point out that some elements in our society seem to understand the nature of the squatter debacle better than others.
It may very well suit the Government to leave landowners to their own devices in carrying out regular checks of their premises, entrusting their agents with occupation of their premises, pursuing their rights to their land in the court system in a more timely manner, erecting grilles and perimeter fencing, while focusing resources on more pressing issues such as finding employment for recent university graduates, and leave poor people (squatters) alone.
Garth O. Taylor is an economist/attorney-at-law based in Kingston. Email feedback to email@example.com and firstname.lastname@example.org.