To the Government
Under the Land Acquisition Act, once the GOJ is not obtaining land for illegal use it has the power to declare private property for public use. Any haggling, which may or may not reach the courts, will simply be over the value of the land — meaning, how much the private landowner will get.
“There is really little to nothing that residents can do. The Government has that authority to take that which belongs to it,” stressed Duhaney.
Earlier this year, Montego Bay businesswoman Angella Whitter complained bitterly that the route of the Us$274.5million Montego Bay Perimeter Road had eaten up a lot more of her 12 acres of land than she thought it would when she entered into discussions with the contractors, China Harbour Engineering Company (CHEC). CHEC is supervised by the National Road Operating and Construction Company (NROCC) which is representing the GOJ’S interest in the project.
Up to December last year it had only 55 per cent of the land needed for the massive project that is expected to transform Montego Bay, opening up the city to further growth and development. A chunk of the $10.2 billion that the Government intends to spend on the Mobay bypass in fiscal year 2024/25 will go towards land acquisition.
Duhaney pointed out that there are a few things that can be done to ensure that private landowners get the best deal possible when the Government claims their land.
The first step is to get a licensed, reputable land valuator to do an assessment. There is nothing that says you need to blindly accept the value the Government places on the land. The market value is calculated as at the date when the commissioner of lands serves the private landowner with notice. After the experts used by the commissioner place a price tag on the land, negotiations begin. However, once notice has been served the commissioner can take possession so there is no danger that a planned Government project cannot go ahead.
If no deal is reached on the price, the private landowner has 21 days within which to state objections to the value ascribed. If the commissioner presses ahead with the Government’s offer but the private landowner rejects its award within a six-week window, the commissioner must refer the matter to court. With the aid of experts the court will rule on how much the private landowner will receive.
That amount cannot be less than the original offer from the commissioner, but it is possible that it is more. This is why it’s vital to enlist the services of a registered, competent and reputable land valuator.
Factors that may have an impact on the award may include money previously spent on developing the property — for example, the private landowner had already begun the process of applying for a subdivision — or the purpose for which it is currently being used, such as an income-generating quarry. Of less weight would be the inconvenience caused to the private landowner.
“The concept of eminent domain is that somebody will be at some level of disadvantage or suffer some amount of loss or discomfort,” said Duhaney. “But it is really the decision that is made between maybe the lesser of the two evils, where the Government is looking at it from the perspective that they have an objective for the development of the country. In the case of the bypass the objective is to enhance transportation and reduce traffic, and so forth. The goal is the greater impact and more far-reaching benefits for a wider cross section of its people rather than an individual. So, hence, the eminent domain concept will be activated and compulsory acquisition will take effect.”
Then there’s the issue of what happens if you find gold, oil, or minerals on your land.
“The concept of land is that anything that is under the soil and above the soil is deemed to be land or property, and falls within the scope of property law,” explained Duhaney.
Property law is one of her areas of speciality.
“Because of the concept of land being owned by the Government, that particular asset would not be owned by those residents [who find gold on their land]. If the Government requested it they would have to hand it over,” she added.
Duhaney hastened to add that the typical approach would be to enter into negotiations, just as those done for land acquisition.
“The residents would not be able to keep [the gold] once the Crown requests it. But they would compensate them, usually, based on the valuation,” she said.