The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

It is “beyond time” for The Bahamas to reform a “precarious” land administration system where half of all privately-owned parcels were previously estimated to be in dispute, an attorney said yesterday.

Sharlyn Smith, senior partner at Sharon Wilson & Company, used the Cat Island Business Outlook conference to renew previous calls for The Bahamas to make the long-needed switch to a registered land system as a means to eliminate the abuses that are undermining social and economic development throughout The Bahamas.

In particular, she argued that implementing such a comprehensive overhaul would enable The Bahamas “to do away with, at least in its present form” the much-derided Quieting Titles Act that has increasingly been used to steal land by fraudsters, scammers and other con artists.

And Mrs Smith added that a registered land system would also prevent persons submitting title deeds to the Registrar General’s Department for recording despite not owning the land parcel in question. She acknowledged that, under the present structure, “not even the most prudent and exhaustive title search gives the purchaser complete security” because land title is “not absolute” - unlike in a registered land system.

Noting that there has been “no meaningful change” to Bahamian laws involving the sale, transfer and recording of land ownership for more than 100 years, besides the Quieting Titles Act and the law dealing with condominiums, Mrs Smith said: “I begin with a clear proposition that there is a need for change in land administration in The Bahamas.

“This need becomes apparent when you consider that except for the controversial Quieting Titles Act of 1959, and the Law of Property and Conveyancing (Condominium) Act 1967, we’ve not had relevant legislation to address the conveyancing of land - that is the procedure whereby the ownership of land is transferred and the rights related to land are recorded - for over 100 years; since 1909 to be exact.”

That was when the Conveyancing and Law of Property Act was enacted into law, and Mrs Smith acknowledged that there has been “no meaningful change” or upgrading of such critical legislation for multiple generations. While successive governments since the early 2000s have identified land reform as a critical issue, they have ultimately failed to follow through and bring the necessary legislation to Parliament.”

“The need for change is real because of the state of landholdings in The Bahamas. It is precarious, confused and far less than desirable,” Mrs Smith said, summing up the current system.

Referring to the Inter-American Development Bank-sponsored Land Use Policy and Administration (LUPAP) project of the early 2000s, she argued that the fact it drew support from both PLP and FNM administrations should give Bahamians “confidence that the change will in fact come and, when it does, it will enjoy bi-partisan support”.

Tribune Business, though, previously reported that there will be much scepticism as to whether a land registration system will ever get off the ground. For the last Ingraham administration led similar efforts more than one decade ago to develop a three-strong package of Bills that would have overhauled the existing system.

These Bills - the Land Adjudication Bill, the Registered Land Bill and the Law of Property Bill - would have created a land registry in the Bahamas, and given commercial and residential real estate buyers greater certainty that they had good title to their properties. However, they were ultimately shelved and no subsequent administration has seen fit to revive them, although the current government’s position is unclear.

Many have referred to the present system as “a lawyer’s dream”, with attorneys earning a set fee - normally equal to 2.5 percent of the purchase price - for conducting title searches and providing “opinion on titles”. Those not employed in the legal profession find it virtually impossible to navigate the system as structured and perform their own title searches, and Parliament tends to be dominated by the number of attorneys who are MPs and Senators by profession.

Mrs Smith yesterday said the IDB’s follow-up report to the LUPAP project identified multiple serious deficiencies with The Bahamas’ current system that still have not been fixed more than a decade later. These include “overlapping claims” to land ownership and rights, meaning that numerous parties are claiming ownership of the same property, plus “high transaction costs” associated with real estate sales and general uncertainty over land ownership.

In reference to the latter, she added: “This is the result of the fact that title deeds are not required to be recorded, and the questionable description of title deeds in the properties that are recorded. This allows the same parcel of land to be sold multiple times using different descriptions.”

Besides the long-standing issues with commonage and generational land, especially in the Family Islands, Mrs Smith said concerns over “outdated policies” for Crown Land divestment and administration were especially problematic given that 70 percent of all land in The Bahamas is estimated to be Crown Land.

“The project found that 15 percent of the parcels in the country were in dispute,” she added. “This is particularly significant given the observation that, by and large, 70 percent of the land is controlled by the Government. That leaves only 15 percent of the land, which is in private hands, not in dispute.  Expressed differently, an IDB study in the early 2000s found half the land in private hands was in dispute.”

Mrs Smith acknowledged that “undoubtedly contributing” to land ownership insecurity, and holding back social and economic development, is the misuse and abuse of the Quieting Titles Act as a tool to steal land. The Act allows persons using, or squatting, on a piece of land to petition the courts for a certificate of title after a certain period of time and potentially dispossess the existing documentary owner.

And she added that the Limitation Act 1995 had made it even easier to remove a documentary title holder if a trespasser enjoys undisturbed adverse possession and use of a property for 12 years or more. As a result, Mrs Smith said it was “beyond time” for The Bahamas to introduce a system of registered land and follow most of its counterparts in other Commonwealth Caribbean countries.

A land registry would contain all information relating to a specific parcel of land in one database, including its location, dimensions, ownership interests and all encumbrances, such as mortgages and other liens/charges.

Moving to a such a system - and registration system - would remove the need for attorneys to conduct expensive, time consuming title searches that are sometimes prone to error, and move the Bahamian real estate market away from being based on “first to record” title deeds.

“In addition, under our present system, the Registrar General’s Department must enter into the public records all deeds that are properly presented to it regardless of whether the contents are true and correct,” Mrs Smith said, adding that such mischief would be eliminated by a registered land system since it would be the Government’s responsibility to ensure all information is accurate.

Turning to a recent ruling, which found all conveyances of land in a subdivision that was not approved after the Planning and Subdivisions Act came into effect, Mrs Smith said the law needed to be reformed. “At the moment we find ourselves with a law that allows a law breaker, some rogue subdivider of land, to keep the monies paid and keep the land,” she asserted, which would force victims to initiate lengthy, expensive legal action to recover their funds.

Mrs Smith said “that cannot be right”, and called for a return to the pre-Planning and Subdivision Act status “where a person who subdivides land without proper approval is fined heavily to make it commercially nonsensical but issues of title are avoided”.