He Bought the Land. The Squatters Stayed. The Court Agreed With the Squatters.

Kingston, Jamaica, 13 April 2018. A buyer in St Catherine purchased a property in or around 2014 having been told that the previous owner had already issued notices to quit to the people occupying part of it, and had commenced court proceedings to remove them. That seemed like a reasonable state of affairs. The court case was in progress. The situation was being managed. The buyer proceeded. Then the Court of Appeal ruled against him, finding that the squatters had established adverse possession and could not be evicted. The buyer had paid a significant sum for a property whose new title was, in the eyes of the court, already partly lost before he ever signed his name to it.

The case of Perry v Bough illustrates something that many Jamaican buyers learn only after a transaction has gone wrong: the adverse possession clock does not pause while court proceedings are under way unless those proceedings have formally begun, and the history of occupation matters as much as the current legal status of a dispute. The squatters in this case had been in open and undisturbed possession of sections of the property for more than twelve years. The previous owner’s notice to quit and court proceedings were not enough, in the court’s analysis, to interrupt that possession in the legally effective sense. By the time the buyer purchased, the right to recover those sections had already been extinguished. He was acquiring a problem, not a solution.

The Court of Appeal made several findings that property buyers in Jamaica need to understand. The creation of a mortgage by a registered owner does not stop the adverse possession clock running against a squatter on part of that property. A registered owner in possession of one portion of a property does not automatically interrupt the adverse possession of another person occupying a separate portion. The absence of a physical boundary fence around the area being occupied by the squatter does not undermine the squatter’s claim, provided that the intention to possess can otherwise be established. Each of these findings erodes a common assumption held by buyers and landowners: that registered ownership provides a comprehensive and self-enforcing protection against adverse possession claims.

The Gleaner legal columnist who reported this case asked directly whether squatters enjoy greater protection than property owners under Jamaican law. The question has rhetorical force, but the more precise answer is that the law treats both the registered owner and the long-term occupier as having interests that are capable of legal recognition, and it imposes a strict time limit on the owner’s ability to assert their superior interest. The owner who acts in time, who commences proceedings before twelve years have passed, is protected. The owner who does not, for whatever reason, has their title extinguished by operation of law regardless of how the occupation began.

For buyers, this creates a due diligence obligation that goes significantly beyond a standard title search. A title search confirms the registered ownership chain. It does not, and cannot, confirm that no adverse possession claim has accrued against any portion of the land. That confirmation requires a physical inspection of every part of the property to identify any occupation that is not by the seller, combined with specific enquiry about how long that occupation has existed and whether any steps have been taken to challenge it. In a market where a significant proportion of land has some history of informal occupation, that inspection and enquiry is not optional for a buyer who wishes to know what they are actually acquiring.

The Justice who delivered the judgment in this case observed that the result was not the happiest outcome for a buyer who had paid a real sum for his property, and suggested it may be time for the legislature to examine the matter. That judicial observation has been made more than once across different Jamaican courts. It has not yet produced legislative action. Until it does, the practical burden of avoiding the outcome Mr Perry experienced rests with buyers and their lawyers, not with the law itself.

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