The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A leading developer has urged the Government to “see value” in reforming the Quieting Titles Act, agreeing that it is being abused to aid pure “fraud and stealing” of land in the Bahamas.

Franklyn Wilson, chairman of Arawak Homes, told Tribune Business the widespread nature of Quieting Titles abuses had previously encouraged the developer to offer to retain the late Paul Adderley, the former Attorney General, to draft much-needed amendments to the Act.

This was in the wake of Mr Adderley’s address to an Arawak Homes-organised symposium in 2001, in which he outlined the problems being caused by Quieting Titles Act abuses. However, Mr Wilson said the initiative never went anywhere as reforming the legislation was not in keeping with public policy direction at the time.

Mr Adderley’s address, though, was noted by a December 2012 Privy Council judgment, which reiterated concerns about how this Act was being used to facilitate land theft. The highest court in the Bahamian judicial system also said it was “no accident” that it had heard numerous land title disputes from the Bahamas over the years.

Describing reform of the Quieting Titles Act as “critical” to ensure all Bahamians with good title were protected, Mr Wilson told Tribune Business that “it was clear it was a serious problem” back when Arawak Homes held its symposium in 2001.

Suggesting that the recent ruling showed the highest court had also “accepted the serious need for change”, Mr Wilson said it gave him “a sense of pleasure” that remarks made at the company’s event more than a decade ago had formed “the basis on which the Privy Council in 2012 rendered such a meaningful opinion”.

Arawak Homes has long had to contend with Quieting Titles Act abuse, particularly in the location surrounding its development of Sir Lynden Pindling Estates in the Nassau Village/Pinewood Gardens area. It has spent more than two decades challenging rival claimants, then defending its Certificate of Title, to hundreds of acres - a situation sparked by a Quieting Titles action that the courts ultimately ruled obtained title via fraud.

“The consequences are far-reaching,” Mr Wilson said in reference to that matter, “particularly what happened in Pinewood Gardens, where people built homes worth hundreds of thousands of dollars on land which is not theirs.

“You invest hundreds of thousands, and it turns out you are on somebody else’s property. These are major problems. Wars are fought over land.”

“It’s very important,” Mr Wilson told Tribune Business of the need to reform the Quieting Titles Act. “I can tell you that Arawak Homes went so far as to offer to retain the services of Mr Adderley to draft the amendments he thought necessary to do that. But it was not public policy at the time.

“Maybe these recent developments will cause the current administration to see the value in doing something.”

In his 2001 address, Mr Adderley said the Quieting Titles Act was intended to perfect land title in the Bahamas by curing defects that previously had no remedy. For the first 20 years of his life, he suggested it worked as intended, resulting in all homeowners in Pinder’s Point, Grand Bahama, getting title to their land.

But he then acknowledged: “After the second 20 years of the Act, concerns have been growing for a need to amend the Act, which to some appears to be being used as a ‘instrument of fraud’.

“The attempt to steal land by the fraudulent use of the Act has become too common. So has its companion: The use of the fraudulent possessor to deny the real owner use of his land. I know of situations which have not, in the end, succeeded but the true owner has been put to expense and lost much time in useless litigation only because our system is based on a jurisprudential culture which says that a potential litigant must have his day in court.”

Explaining how the Quieting Titles Act could be abused, Mr Adderley said back in 2001: “There are bound to have been cases which have succeeded, where land apparently without a legal owner has gone to a fraudulent applicant for a Certificate of Title.

“The technique is very simple. You fine two unemployable drunks who swear affidavits of possession of 50 or 100 acres of land. You apply to the court for a Certificate of Title. You then find two or three adverse claimants who file claims that the land is not yours but theirs.

“A few days before you go to court the adverse claimants withdraw their claim. You go to court with an unopposed application and you get your Certificate of Title. The same day or the following day, you convey the land to a company which you have had incorporated by a relative or friend without actual knowledge of the fraud, and thereby claim that purchaser is a bona fide purchaser for value. You have gotten what you set out to do.

“Now, all of this can be set aside by the court in time, but you will see how much time and costs that will take, because at the end of the day the applicant nor the other person involved cannot pay your costs.”

Mr Adderley added that wherever there was development in the Bahamas, “the land stealers” would follow. As a result, he recommended that the Quieting Titles Act be repealed and replaced.

Acknowledging that the Quieting Titles Act was intended to provide a judicial process for determining land ownership, and resolving disputes, the Privy Council in its recent judgment said it took the form of an “inquiry”. Claimants to a particular land parcel petitioned for a Certificate of Title, rivals made adverse claims, and both sides produced evidence for a court to determine who had the best title claim.

“This judicial procedure meets an economic and social need in the Bahamas, where many of the outlying islands were, for much of the Commonwealth’s history, sparsely populated and only sporadically cultivated,” the Privy Council said.

“Much of the land belonged to landlords who were not permanently resident, and travel was slow. Parcels of land often had no clearly defined boundaries based on comprehensive surveys.”

Yet referring to Mr Adderley`s, the Privy Council added: “While the 1959 Act meets an economic and social need, there has also been a warning from a lecturer, familiar with the 1959 Act both as a legislator and as a practising member of the Bar, that bench and bar must be vigilant to prevent the statutory procedure being abused by ‘land thieves’.

“It is no accident that the Judicial Committee has, over the years, heard many appeals raising questions of title to land in the Bahamas.”