Venice Campbell* describes the loss of her land, by adverse possession, as her most distressing and calamitous experience, and warns other land owners to beware.
Adverse possession is the method by which a person may obtain a good title to land he has been occupying uninterrupted for at least twelve years during which the paper (rightful) owner of the land failed to assert ownership. In Ms. Campbell’s case, she went overseas to work with the hope of saving enough to return home and build her dream house. On her return, fourteen years later, she discovered, to her astonishment, that someone else owned the land and she was barred from recovering possession.
Many Jamaicans are of the view that adverse possession occurs only in situations where, as in Ms. Campbell’s case, Jamaicans residing overseas for many years return home to discover that squatters have acquired their properties by adverse possession. However, that’s not always the case. There are instances in which your land can be claimed by adverse possession in your very presence. A case in point is Recreational Holdings (Jamaica) Limited (“RHJL”) v Carl Lazarus and the Registrar of Titles.
In the case, RHJL purchased a parcel of land, known as Windsor Lodge, from Clinton McGann in 2011, and thus became the registered proprietor of the said land. Mr. McGann had received a registered title for the property in 1978. Carl Lazarus owned a smaller parcel of land adjacent to Windsor Lodge. Mr. Lazarus received a registered title for this smaller parcel of land in 1987. An area of land known as the “disputed property” was included in the registered title of both RHJL’s and Mr. Lazarus’ land. There was, therefore, a case of dual registration.
In 2011, RHJL commenced a claim in the Supreme Court seeking the following orders: (1) that they are the registered proprietor of the disputed property; (2) for recovery of possession of the disputed property; and (3) that the Registrar cancel the certificate of title registered in the name of Mr. Lazarus and issue a new certificate of title to him excluding the disputed property.
Mr. Lazarus also commenced a claim seeking a declaration that he had been in open and undisturbed possession of the disputed property for more than 12 years and that RHJL’s title to such land had been extinguished pursuant to the Limitation of Actions Act (“LAA”). The Court ruled in favor of Mr. Lazarus and held that RHJL’s title to the disputed property had been extinguished by the time RHJL had purchased Windsor Lodge in 2011.
It is important, therefore, for land owners to have a full understanding of the key elements of adverse possession and steps to safeguard their property against adverse possession.
Key Elements of Adverse Possession
The possessor must demonstrate that:
- He has had actual and exclusive physical possession of the property by acts such as planting and harvesting of crops, making physical improvements to the property, or by residing on it.
- He has had continuous uninterrupted possession of the property for twelve years or more
- His possession of the property is open and notorious in that his possession of the property must be so obvious that it would serve as a general notice to the paper owner that he (the possessor) is in possession of the property.
- His possession of the property is adverse, in that his use of the property is inconsistent and contrary to the interest of the true (paper) owner.
- He has had intention to possess the property by demonstrating, unequivocally, that he aims to take possession of the property to the exclusion of the rightful (paper) owner, by acts such as changing locks on buildings on the property.
Guarding Against Adverse Possession
- The paper owner can guard against adverse possession by:
- Erecting “No Trespassing” sign(s)
- Granting formalized permission to the possessor in the form of a written lease
- Having surveys of the property done periodically to ensure that there is no boundary violation
- Having periodic inspections done to ensure unauthorized occupancy, if any, is dealt with immediately.
* The fictitous name Venice Campbell has been used to protect the true identity of the person being referred to.