The economic and social cost of squatting (Pt 1)

Linton Gordon, GUEST COLUMNIST

Below is the keynote address by Lt Col (Ret'd) Linton Gordon, attorney-at-law, to the Kiwanis Foundation of Jamaica at the Frank Melhado Awards on September 9.

The debate on squatting continues along a path of emotionalism, lack of information and political opportunism. In all of this, there is no doubt that there is a need to address the matter with a view to solving all problems that we experience as a consequence of squatting.

Recently, non-portfolio minister in the housing ministry, Dr Morais Guy, announced that the possibility of making squatting a crime was being looked at by the Government. However, Minister Guy need not look any further, because squatting is already, broadly, a crime in Jamaica. There is in Jamaica a piece of legislation called The Trespass Act, and this act provides as follows:

Section 2 (1): If any person shall commit a trespass by entering, without lawful authority, the premises of any private resident or upon land belonging to any proprietor or occupier:

(a) which is enclosed; or

(b) which is in any manner cultivated or on which any agricultural activity is being carried out, he shall be guilty of an offence

(2) Any person who is found guilty of an offence against subsection (1) shall be liable on summary conviction in a resident magistrate's court:

(a) where the offence was committed at night, to a fine not exceeding $40,000 or three times the value of the damage done during the course of the trespass, whichever is the greater, or in default of payment thereof to imprisonment for a term not exceeding two years; or

(b) where the offence was committed by day, to a fine not exceeding $20,000 or three times the value of the damage done during the course of the trespass, whichever is the greater, or in default of payment thereof to imprisonment for a term not exceeding one year.

irreconcilable conflict

Clearly, it is at present a crime to trespass on to the land of another person. However, the Trespass Act is in irreconcilable conflict with the Limitation of Actions Act. The Limitation of Actions Act at Section 3 states as follows:

3. No person shall make any 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 bring the same.

As you can see from both these provisions, while the Trespass Act criminalises the act of squatting, the Limitation of Actions Act rewards the squatter with the possibility of becoming the owner of lands on which he squats.

Having trespassed on to the land of another and having remained there for 12 years or more, the squatter can now apply to become the owner of the land he criminally entered on to and thus be issued with a title for the said land. This process is known as obtaining title by adverse possession, and where the land is registered the application for title is made under Sections 85 and 86 of The Registration of Titles Act. Section 85 of The Registration of Titles Act provides as follows:

85. Any person who claims that he has acquired a title by possession to land which is under the operation of this act may apply to the registrar to be registered as the proprietor of such land in fee simple or for such estate as such person may claim.

Section 86 sets out the procedure by which the application is to be made to the registrar of titles.

In general, squatters fall in two broad categories: there are those who, desperate for somewhere to live, take the chance of occupying any empty land seen. The other category comprises persons who are professional squatters. These are the persons who go from community to community, parish to parish, occupying mainly government land, usually prime land, with the hope and expectation that Government will regularise their occupation of these lands by providing utilities like water and electricity and infrastructure, including roads.

Many squatter communities are breeding grounds for criminals. These communities usually need criminals to protect them from members of adjoining communities who might oppose their presence. They also need criminals to protect them from political opponents and, in some instances, from the owners of lands on which they are trespassing.

A squatter community is usually a safe haven for criminals. The irregular development comprising initially blue tarpaulins, zinc fences, winding tracks, lack of street lights, lack of roads, lack of street names and the absence of addresses and, indeed, no proper names for occupants all create a mixture of impossibilities and nightmare for police personnel who are required to enforce law and order in these communities.

The police cannot patrol these communities with motor vehicles or even with motorbikes. They are, therefore, required to enter on foot and to do that at nights, bearing in mind that there are no street lights, is like sending police officers on a suicide mission.

Squatter communities are potential breeding grounds for dons, extortionists, prostitutions rings and drug peddlers. Guns are often stored in these communities and it is from here that dons dispatch members of their criminal gangs to neighbouring communities where they carry out extortion activities, demand protection money, commit robberies, shootings, rape and murders. It is all but impossible to trace and monitor members of these criminal gangs in the squatter communities.

We should appreciate that not only are there no well-laid-out streets with address numbers in these squatter communities, but most of the residents are more often than not known by aliases  instead of their proper names. There is also a culture of silence, either out of fear or because some of the members of these communities are beneficiaries of the proceeds of crime.

It must also be recorded that politicians on both sides of the fence encourage squatting as a means of bolstering their electoral support and, in some instances, rely on squatters to establish a garrison-like constituency in which they are confident the squatters will always vote them across the threshold into electoral victory.

In the St Ann area and in particular in Ocho Rios, widespread squatting has led to the deforestation of the watershed. This has, in turn, led to soil erosion, contamination of streams and beaches, and the destruction of roadways when it rains.

Squatters also create problems for the urban planning process. They put a strain on public utilities that are established for the existing communities, for example, where water is supplied to communities using pipes that were designed to supply a population of, say, 10,000, the sudden arrival of 5,000 squatters will put a strain on the water supply. The same can be said of electricity, schools, clinics and hospitals.

The presence of squatters close to communities usually leads to the depreciation of real estate in established communities. Members of squatter communities are usually in constant conflict and dispute with members of the established communities.

It does not do the country any good to have a situation where persons can enter and squat on valuable lands, especially government lands, lands with ocean view and lands reserved for golf courses and condominiums, and having so trespassed, the Government turns around and rewards them with titles to these lands. This is a slap in the face to honest, hard-working and law-abiding Jamaicans.

In Part 2 next Sunday, the author examines the Alrick Pottinger v Traute Raffone case and explains why the don't-squat, you-can-squat laws are irreconcilable.

Linton P. Gordon, JP, is an attorney-at-law. Email feedback to columns@gleanerjm.com and lpgordon@cwjamaica.com.