‘Dem tief mi land’

A dispute is brewing over whether the Jamaica Defence Force (JDF) got permission from the right person to construct a cell tower on a plot of land in the community of Cocoa Walk in Cross Keys, southern Manchester.

On May 5, Kerron Outar, through his attorney, John Junor, gave the army 21 days to respond to his complaint that the tower was built without his permission on land gifted to him in 2009.

“They cannot tief mi land …not because them see mi as a likkle poor man dem wah fi use brute force tek weh di land from mi. Dem nuh wah gimmi no justice, dem waah feel seh mi nuh have no talk over it,” Outar, 43, a farmer, exclaimed to The Sunday Gleaner last week.

But the JDF is insisting that it signed a lease with the registered owner of the land in question.

“We understand that the subject land is now a matter of dispute. The JDF awaits the resolution of the issue to inform our further actions if required,” the army said in a statement to The Sunday Gleaner on May 11.

But the 84-year-old landowner, who did not want to be named, said while her name still appears on the title for the land, the portion on which the tower is built was gifted to Outar, a critical bit of information she said was shared with the JDF before it started work on the tower.

According to her, another piece of land that she owned was identified for the tower but somehow work was done on the land gifted to Outar.

“When dem (JDF) come, I said to dem seh mi give the land to him (Outar) so mi not going put it there. Dem seh dem a go survey piece of my land, one square, because him seh him nah sell it,” she explained.

She said she did not have a copy of the lease agreement with the JDF and that she gave permission to a senior member of the community to sign the documents on her behalf, who still has possession of them. That official could not be reached by telephone.

The JDF did not answer a series of other questions from The Sunday Gleaner, including whether it was told that the piece of land they built the tower on was gifted to Outar and advised by the landowner to build elsewhere; the period of construction; and terms of the lease agreement. It said an application for additional details may be made under the Access to Information Act.

Some details of the lease, including costs confirmed in The Sunday Gleaner’s investigation, will not be released.

GIFT FOR SAVING BROTHER’S LIFE

The Sunday Gleaner visited the location on May 2 and observed a small group of soldiers guarding the facility. There was no work being done on the fenced-tower which was mostly constructed in 2022. Discussions with the parties started from around 2020.

Outar got the land as a gift in 2009 for saving the life of the landowner’s brother during a stabbing attack.

“Mi seh to mi brother (who is now deceased) seh mi nuh have anything to give him and him nuh have nowhere to live so mek wi gi him a house spot,” the woman said.

The offer of 5,445 square feet (0.125 acres) of land was made on January 8, 2009, according to an original version of the deed of gift seen by this newspaper.

It said the donor granted and transferred the land along with “all the liberties, privileges, casements and advantages appurtenant thereto and all the estate, rights, title, interest use, inheritance, possession, benefit, claims and demands” to the use of the donee “absolutely”.

The document was witnessed by a justice of the peace.

Although the deed of gift was signed in 2009, it was not registered with the Registrar’s General Department, Jamaica’s keeper of records, until November 10, 2022.

Outar does not have a title for the property, an issue he said is being rectified.

But according to his lawyer, the deed of gift is sufficient to show ownership interest and is what he said is viewed as a ‘title’ at common law.

‘TRESPASSING WITHOUT COMPENSATION BEING PAID’

Junor said since being retained from about mid-2022, he wrote the army on at least three occasions, providing documents to support Outar’s claim to the property and that the army was effectively “trespassing without compensation being paid”.

“Our last communication with them is that should we not hear from them, we will seek to enforce his rights elsewhere, that is in the courts,” he said, referring to the letter he said was sent on May 5.

That letter, the lawyer said, restated the terms of a previous missive which called for the JDF to recognise Outar’s claim and to “sit down with us and negotiate a settlement of the matter”.

Junor added that Outar is not “objecting” to JDF having the tower, “he’s prepared to talk to them but I don’t know if it’s military arrogance or maybe a lack of knowledge of what the law is.”

A deed of gift is a legal document that passes interest in unregistered land from one person to another, with its consideration being love and affection instead of money, the National Land Agency (NLA) has explained.

It is different from a title, in that the title is proof that legal interest has passed in relation to registered land.

Once the deed is officially stamped, it entitles the beneficiary to take possession and be placed on the tax roll and the said document can be utilised as proof for the purpose of applying for a registered title.

The NLA explained that since the deed recognises a transfer of interest, the original landowner or the donor’s claims are essentially gone.

“The deed of gift passes a legal interest, so the donor would have given up his right to exercise power over the land, save and except where the deed is so worded to give him such right during his lifetime, for example, or in his capacity as trustee holding interest on behalf of the donee,” the agency said.

The next step is to get a land title which the NLA said requires an application under the Registration of Titles Act.

The requirements include a survey or diagram for the land, up-to-date certificate of payment of taxes, and two or more declarants who can speak to root of title, that is, showing possession of the owners for over 30 years.

Outar has produced his tax payments since 2017 and a survey of the land as part of his application.

That survey shows most of the tower contained within the boundaries of the land gifted to Outar.

‘CLOUDY’ ISSUE

The JDF may not be in any legal trouble by entering in a lease agreement with the person on the title but if it was aware of a claim through a deed of gift before building the tower, then the issue becomes “cloudy”, argued an experienced real estate lawyer who did not want to be named.

“That’s going to be a matter of fact and law in terms of evidence and other issues. If that’s the case that JDF was aware of the intention, they would have had to receive the consent of the beneficial owner,” the attorney said.

In the meantime, Outar is calling for the prime minister’s intervention as the minister of defence who has ultimate oversight of the army.

“The laws of the land are the laws of the land and if I have this piece of land as a deed of gift, a deed of gift is lawful,” he said.

Outar argued that if the land belonged to the Government and he was squatting on it, then the authorities would have used force to remove him.

“If it was a capture land, a government land, that I Kerron Outar had, then they would come and bulldozer mi down; they would push mi off. They cannot tief mi land, because mi have it seh dem a tief mi land,” he declared.

jovan.johnson@gleanerjm.com