State acquisition of lands

I was told several years ago that we don't own land, we simply have an interest in land. The term interest has a special legal meaning, that is, we really hold land for a time period during which time there are rights, duties, liabilities and advantages connected to the holding of the land.

Given that we only hold an interest, our rights flowing from that interest can be disposed of under the principles of adverse possession provided certain criteria are satisfied.

Compulsory acquisition of land also somewhat follows this rule as there are statutory powers given to the State to acquire land. A registered title is, therefore, not as comforting as it may seem.

There are varying reasons for the State's acquisition of privately held land, including the expansion of a road network, and further development of an urban area. Such acquisitions are protected under the Constitution. However, the owner must be adequately compensated when such an acquisition takes place. Recent reports in the media have led many to question whether landowners should be consulted before land is acquired, or even at the preliminary stages of the acquisition.

The principal legislation dealing with land acquisition is the Land Acquisition Act. Where there is a need for preliminary investigations into whether land is needed for a public purpose, the minister may provide notice in the Gazette that the land is needed for public purposes and serve a copy of this notice on the owner of the land. The commissioner of lands, in whom title for Crown lands is vested, must set out the substance of the notice at a convenient place.

After these notices have been given, an authorised public officer may enter upon premises to survey the land, dig into the subsoil, identify as well as set the boundaries of the land, and do all acts necessary to ascertain whether the land is adapted for the purpose for which it is required. The public officer must obtain the consent of the occupier of the land before he/she can enter upon any building or any enclosed yard, court, or garden which is attached to a dwelling house situated on the land.

Acquisition proceedings

Where, following investigations, it is found that the land is indeed needed for public purposes, the minister shall sign a declaration to that effect, and such a declaration is itself conclusive evidence that the land is needed for a public purpose. The Land Acquisition Act requires the minister to thereafter direct the commissioner to undertake proceedings for the acquisition of the land. Such land is usually sold by private treaty (private sale) following negotiations between the commissioner and the owner. However, where negotiations between the commissioner and the owner do not lead to the conclusion of a sale in what the commissioner considers a reasonable time period, the act stipulates that the commissioner may post notices stating that claims for compensation must be made to his/her office. In other words, the land can be acquired by the State without the agreement of the owner.

The acquisition of urban land, in particular, is regulated by the Urban Development Corporation (UDC) Act. Under this act, the minister may designate, where he is satisfied after consultation with any local authority, that it is expedient in the national interest that any area of land be developed by the UDC as an urban area. The act does not set out criteria for what may be "expedient in the national interest". However, given the statutory mandate of the UDC, it appears that what will be expedient will include the developmental needs of the urban areas such as proper expansion and planning.

The UDC Act does require that the procedures regarding acquisition follow those laid down under the Land Acquisition Act. However, the UDC Act entitles any authorised person to enter designated areas within a reasonable time period to carry out surveys and valuations. A person who obstructs the authorised person will be guilty of a criminal offence and liable, on summary conviction, to a fine of up to J$40, and in default, to imprisonment for a term not exceeding two months.

The Land Acquisition Act, it appears, requires far more consultation before preliminary investigations and the actual designation for a public purpose. However, land stipulated for urban usage can be so designated and entered upon without notification being given to the owner.

Outside expediency for national purposes, our laws do not provide guidelines in the acquisition of lands, in particular whether regard should be had to the sensitive nature of certain lands. The UDC Act does, however, provide that the UDC, in performing its functions, should take such action as may be necessary and practicable to ensure the preservation of sites and objects of architectural and historic interest.

It is clear that our laws recognise that in urgent circumstances, there is no need for agreement or even consultation prior to the designation of land for a public purpose. Is this sufficient? Certainly, if the land is needed for a greater developmental good, decisions may be made without notification to owners or others who may have an interest in the land. However, prior discussions and consultations may make the process easier to swallow.

Grace Lindo is an attorney-at-law at Nunes, Scholefield, DeLeon & Co. Email feedback to columns@gleanerjm.com and glindo@nsdco.com.