I want back my family's land

My family has had a piece of land for more than 40 years.

This land is unregistered. For the last 30 years, my family has left a caretaker in charge of the land. The caretaker allowed his son and his friend to live on the land during our absence, without our permission.

He died last year and now the caretaker's son and family (squatters) who reside on the land refuse to leave.

Can they legally take the land from us?

The short answer is that it is possible for squatters to get legal title for a property. Whether they will be able to in this particular situation requires more detailed information. Consult an attorney-at-law for advice.

That advice could involve taking immediate action to recover possession of the property from the squatters.

Section 3 of the Limitation of Actions Act states:

"No person shall make an entry, or bring an action or suit to recover any land or rent, but within 12 years next after the time at which the right to make such entry, or to bring such action or suit, shall have first accrued to some person through whom he claims, or, if such right shall have not accrued to any person through whom he claims, then within 12 years next after the time at which the right to make such entry, or to bring such action or suit, shall have first accrued to the person making or bringing the same."

The meaning of this section was the subject of a decision by the Privy Council in the case of Pottinger v Raffone [2007] UKPC 22 (17 April 2007). In that case the section was interpreted to mean that "a proprietor may lose the right to recover his land if someone else is in possession of it for 12 years".

This can occur in relation to registered and unregistered land. (Even property owned by the Government could suffer this fate after 60 years of occupation by a squatter.) In the case of unregistered property, the squatter could then make an application for first registration of a title over the land. In relation to registered land, sections 85 and 87 of the Registration of Titles Act are relevant. Section 85 provides for the squatter to make an application to become the owner of the land, while section 87 permits the Registrar of Titles, in appropriate cases, to cancel an existing certificate of title and issue a new one in the name of the applicant.

important facts

The Judgement in Pottinger v Raffone highlighted two important facts. The first is that, even if the squatter had first entered into possession of the property with the consent of the owner, the owner could lose his right to recover possession of the land. The second is that, once the squatter has taken steps to become the registered proprietor of the land, it will be far more difficult for the owner to reverse that process.

Mention of this judgment still evokes very strong adverse reaction, especially by owners of property. The argument is that the owner of land should not need to 'babysit' that land in order to preserve his title. Why shouldn't he be able to travel overseas for extended periods of time without returning to find that he no longer owns his land?

Until the Limitation of Actions Act is amended, or a decision of the Privy Council overrules the judgment in Pottinger v Raffone, owners of property will be well-advised to pay close attention to their property, ensure that the property is being maintained and that the property taxes are paid, and visit from time-time to check whether it is being occupied by anyone without their permission. On discovering the presence of squatters on your property, act promptly to have them removed.

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