Selling, Leasing and Squatting on State Lands
"State lands" is the name given to what was called "Crown lands" before 1978 when Dominica gained constitutional independence from Britain. The sale and lease of state lands and squatting on such lands are governed by the State Lands Act together with regulations made under the Act and earlier regulations made under the Crown Lands Ordinance of 1915. Both the Act and the Regulations were brought into being as far back as 1960 but have since then been amended time and again. The last amendment was made in 1990.
The Act and the Regulations give the Government wide powers of acquiring unoccupied land and of selling and leasing land to the public. And they protect state lands against squatters in a way that privately owned land is not protected. More specifically, the law on squatting which was stated in an earlier Law Note applies to privately-owned land but not to state lands.
Section 19 of the act gives Government the power under certain conditions to declare vacant land to be the property of the state. This is done in two stages. In the first stage, the Director of Surveys/Commissioner of Lands forms an opinion that a certain portion of land is either unoccupied or is occupied by a person who appears not to have a valid title to the land. He then makes an affidavit to that effect and swears to it. In the second stage, the Attorney General will on the basis of this affidavit apply to the High Court or a Judge to summon all persons claiming an interest in the land to give good reasons why the land should not be taken over by Government. Unless one or other persons so summoned are able to convince the Court or Judge otherwise, the land is question will become state property, that is to say, the property of the people of Dominica.
Whosoever wishes to purchase state lands must first make application to the Director. The Director then sends the application with recommendations to the President of the State for his consideration. If the President does not support the application that is the end of the matter. The applicant will be refunded fees for purposes of surveying the land and advertising its sale to the public, both of which are to accompany the application form. If the President's consideration is favourable, he will authorize the Director to make a survey plan of the whole land or part of the land applied for. Where a plan for the said land in question already exists the Director may, if he so desires, choose to utilise it rather than conduct a new survey. Next, the Director returns the application with the survey plan annexed to the President, together with a statement as to whether in his opinion the land applied for is state land capable, therefore, of being sold, and as to whether such sale is likely to "cause deterioration" to other state lands or in any other way to "interfere with the rights and interests" of the state. Where the President believes the road to sale is clear the Director will be so notified, and the sale will be advertised in three consecutive issues of the Gazette as well as in any other local newspaper directed to by the President, so as to enable any person laying claim to the land to notify the Director of this. If no such claims are received within 2 weeks of the last advertisement, the sale of the land to the applicant will proceed.
As to the schedule of payment, where the land in question is not more than 10 acres, the total sum, including purchase price and fees are to be paid forthwith. Where it is more than 10 acres, the total sum must be paid within 30 days of the sale. Following payment, a grant of the land will be made to the applicant, following which a Certificate of Title will be issued to the applicant. It is to be noted that persons who acquire land in this way are not entitled to sell, lease, transfer or otherwise dispose of such land within 10 years of the date of the grant, without the consent of Government.
But that is not the end of the matter. Where the applicant does not fully pay up the purchase price and all other fees, costs and expenses at the time or times stated in the Regulations, the Director may exercise two options. He may treat the amount owed as a debt and recover it. Or, he may with the approval of the President retake possession of the land sold and re-sell it according to the procedure earlier described. Where the new sale price is more than the amount paid by the person from whom the land was retaken, the excess will be paid to the person. But where the sale price is less, the person will continue to owe Government the difference.
Further, state lands are sold subject to a number of conditions. Where, for example, a plan of such lands shows roads, paths, passages and tracks the state reserves the right to them. Also, land amounting to less than 5 chains situated on either sides of the headwaters of any river or stream may be reserved for "public purposes". And, all minerals or mineral oils upon or under the said lands remains state property.
As to the leasing of state lands, interested parties must follow the procedure set for those intending to purchase. The rental, like the purchase price, is determined from time to time by the President upon recommendation by a committee called the State Lands Valuation Committee. Lessees, that is to say, persons leasing state lands, may be given an option to purchase. Where this option is exercised, the total sum already paid as rent will be deducted from the purchase price.
State lands are leased subject to a number of conditions. A lessee may later wish either to exercise an option to purchase or, where there is no such option, to apply to purchase the land. In that case, where the land leased is not more than 10 acres, Government will not permit any such purchase until it is satisfied that at least one-half of the area capable of being cultivated has been "properly developed". Where the land leased is more than 100 acres, no such purchase will be permitted unless Government is satisfied that to-thirds of the area capable of being cultivated has been "properly developed".
Further, all leases of state lands require lessees to develop the land to a certain minimum standard. If these standards are not reached after this or that period of years, the lease may be terminated and the land repossessed by government. The leases also authorize Government to cancel the lessee's option to purchase, if the required standard of development is not met by the end of the period specified in the lease. Nevertheless, a lease may be renewed even if government cancels a lessee's option to purchase.
In case a dispute arises between the lessee and Government as to whether or not the land has reached a stated standard of development, the matter will be taken before a team of arbitrators comprising two persons. One of them is to be a senior Agricultural Officer, other than the Director of Agriculture, chosen by the Minister responsible. The other will be chosen by the lessee from among members of the Agricultural Advisory Committee. The decision of the Arbitrators is final.
As to the practice of squatting, two points need to be made. The first is that trespassing on state lands is a criminal offence punishable in a Magistrate's Court by a fine of $250, while surveying such land without order or licence from the President or the Director of Surveys/Commissioner of Lands attracts a fine of $1,000. The second point is that, unlike the case of privately owned land, a squatter on state lands for 12 years or more does not obtain possessory title to the land by adverse possession. The occupant may still be evicted. But a grant of the land squatted may be made, and a title issued, at the discretion of the President. To obtain this, the squatter must apply for a grant before steps are commenced in the Court to evict him or her. If the President is satisfied that improvements have been made to the land, the squatter shall be entitled to a grant upon payment of the purchase price. He or she will not be required to pay those fees or charges payable by bona fide lessees or purchasers.
The Regulations under the Act deal with a final category of occupants of state lands. It comprises tenants-at-suffrance, that is to say, squatters for less than 12 years standing and tenants-at-will, that is to say, former bona fide lessees whose leases, though expired, have not been renewed. They may apply for a grant. But they are subjected to conditions not imposed on their squatters of 12 years or more. The lease in question or evidence that a lease existed must be submitted; where the initial basis of occupation was squatting rather than leasehold, this requirement will be waived. Where there is no existing survey plan, this must be provided at the expense of the holder of the land. The application would be strengthened by the inclusion of "any particulars that the applicant may wish to advance as grounds for his obtaining the land at a reduced rental (in the case of the tenant-at-will) or purchase price (in the case of a tenant-at-suffrance)". A successful applicant must, unlike the 12-year old squatter, pay all fees and charges incurred by the transaction.
A few more points. If a person to whom a grant or lease of state lands is made fails to comply with any of the conditions stipulated in the grant or lease, the grant or lease may be revoked forthwith and the lands may revert to Government. Where a person to whom state lands have been sold has defaulted on payment, a Magistrate may make one order for his or her eviction as well as a second, namely, that the person in question be refunded whatever amount has been paid in respect of the purchase money. And, lastly, it is an offence punishable by a fine of $500 for any person to molest or obstruct the Director or any other person in the execution of any duty under the Act.
(William Para Riviere is an Attorney-at-Law)
© William Para Riviere, 2010