Tony Vieira's Comments
22 October 2017

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Prescriptive Rights
(Aired 3 June 2011)

    I want to speak tonight about the recent laws passed in parliament regarding title to land as represented by the Land [Prescription and Limitation] amendment bill 2011. I know it is a little late but I am catching up on old matters since I was unable to record my commentaries before now, even though the research was done nearly three months ago. And this matter was explained to me by Guyana's greatest living land lawyer, who I interviewed for several hours on it, so I thought that after all of that work I was obligated to share it.

   A few months ago there was a letter by one Ramessar captioned "another nail in the coffin of the working class" the caption is self-explanatory but in response to this letter there was a letter from Mr. Mohabir Anil Nandalall who disagreed with Ramessar but apparently according to expert advice Mr. Ramessar is more right than the learned councillor.

     Mr. Nandalall's non legal argument in this matter is as follows, he alleges that this bill is necessary to address a very serious problem in our country. i.e. the acquisition by persons of title by prescription to very vital and valuable property of the state, i.e. land owned by all of the people of this country including road reserves; parapets; play parks; drainage reserves; public roadways, canals and sea and river defences etc. 

   As a result, Mr. Nandalall concludes, entire communities cannot be drained and so on. He alleges in a nut shell that this bill seeks to protect the natural patrimony for the poor Guyanese and our future generations and therefore should be supported by all patriots.

   Mr. Nandalall however forgets to mention that Sparendam was also owned by the people of Guyana and the executive took it at a ridiculously low price to enrich themselves. It seems that the poor people are only considered in Guyana when it is convenient to mention them.

   Well I am a patriotic Guyanese and here is my informed legal position, Governance is supposed to be conducted by people who are intelligent, awake and watching that which they were mandated to safeguard on behalf of the people they were elected to serve. It is not tenable that a government can go to sleep for nearly 20 years then wake up to the realisation that they had the power to stop squatting on state lands especially drainage reserves etc. but did nothing until people had built substantial structures on them. And that this illegal bill can simply allow the government to remove them now, retroactively, without adequate compensation.  I want it to be clearly understood that I am not in favour of people squatting on drainage trench dams and road reserves since this inevitably causes obstruction and an in ability to widen or repair the road or to dig the sideline dams to keep the draimnage functioning properly and it does inconvenience the entire nation, what I am saying is that since it was overlooked until, now we can't just go to parliament and extinguish the rights these squatters have accumulated to vest in themselves a property without adequate compensation.

 The legal scholar I spoke with, informs me that the central point is more a matter of interpretation than what is actually written in the law, Ladies and Gentleman here is the situation; removing the right of an individual to occupy state lands for the purpose of claiming prescriptive rights and thereby title, overlooks the existing laws before this bill was passed; now ladies and Gentlemen the law abhors a vacuum and that being so the existing laws were in effect until the day this law will take or took effect, the previous laws state clearly that if the owner of land is out of possession for 12 years and someone else is in possession for those 12 years, no action can be brought against the person prescribing i.e. since the owner condoned/disregarded the squatter for 12 years and did nothing to move him/her they no longer have any right to remove him/her.

 That rule applies to both state lands and private lands, this rule assumes that the occupier is on the land without the permission of the owner. If the owner has given permission through a lease for example, prescription does not apply.

2. An occupier who has been in such occupation of private land can claim prescriptive land rights after a period of 12 years since at that time the title of the owner is extinguished. And no legal action can be brought to move him after the 12 years have elapsed.

3. If the land being occupied is State Land then he cannot be removed by legal or other action after he has occupied it for 12 years, but he cannot claim prescriptive title until 30 years have elapsed. No law passed now can extinguish those rights retroactively.

    The problem appears to be that during the time that an occupier is prescribing i.e. occupying a piece of land without permission of the owner, he is in fact in the process of prescribing for title which he will be able to acquire after 12 years in the case of private lands, and 30 years in the case of State lands. It is the responsibility of the owner to take action to get the squatter off his property as soon as he occupies it.

    It must also be noted that squatting rights are transferrable in our laws, since during the time when a person is prescribing, he or she has a proprietary interest in that land i.e. a property right in the land, which he can transfer or leave to his successors who may continue his possession for the purpose of gaining prescriptive title.

     If the state wishes to destroy the property right of an individual occupying state lands, the state would be obliged to acquire a propriety interest under an acquisition law and pay adequate compensation to the person squatting. In Guyana this new law seeks to destroy the proprietary rights of the individual without compensation which is contrary to the guaranteed rights entrenched in the constitution, hence one can easily conclude that this new law is unconstitutional and is presented and defended by persons who do not understand the proper working of our land laws. The constitution is the supreme law in this country and no law should be passed which collides with it, as this law seems to be doing.

    When looked at that way the passing of the legislation was a waste of Parliamentary time and effort and provides evidence that the government does not intend to uphold the property guarantee which is one of the most fundamental human rights guaranteed by the constitution.          

Mr Nandalall apparently does not appreciate the simple fact that while a person is prescribing he has embarked on a process under the law as a result of which he hopes to vest in himself a property right, and property rights cannot be removed without compensation.

Additionally the law must be fair and reciprocal, we cannot have in our statutes laws which does not give an individual prescriptive rights to state lands but at the same time there is no law restricting the state from obtaining prescriptive rights from private individuals. Or one private individual from gaining prescriptive rights from another private individual, this is inequality of treatment; it's illegal and probably unconstitutional and should be challenged.