The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

An Appeal Court justice yesterday admitted that the Bahamian judicial system is vulnerable to being used as an “unwitting pawn” in the commission of real estate frauds.

Justice Stella Maureen Crane-Scott warned that the Quieting Titles Act was effectively being employed as a tool to steal land, given that “material facts” relating to title applications were often hidden from the courts.

Referring to yesterday’s ruling on a family-related land dispute in Exuma, Justice Crane-Scott wrote that the case “exemplifies the kinds of egregious abuses - ranging from the fraudulent concealment of material facts to the deliberate manipulation of the statutory requirements of the Quieting Titles Act - which can occur in the course of quieting proceedings”.

She warned that the Act’s proper use and operation depended heavily on the judiciary, and attorneys, properly following its procedures so that all competing claims to a real estate parcel were known.

“The Act can only operate optimally, and as Parliament intended, if its procedures are scrupulously followed by bench and Bar alike, and a proper investigation of all possible competing claims is conducted by the Court,” Justice Crane-Scott said.

“Where material facts, such as the existence of adverse claimants, are deliberately suppressed and concealed, and where additionally, the petitioner knowingly represents to the court - as required in section 5 - that ‘full and fair disclosure’ has been made, the court may nonetheless unwittingly become a pawn in a fraud and deception which only comes to light if (as happened in this case) section 27 is subsequently invoked and the nature and extent of the fraud and deception is established in a court of law.”

Tribune Business has reported on several Quieting Titles Act abuses in recent years, detailing how the law has been used as a fraudulent tool to commit real estate theft.

A typical abuse is for persons seeking a Certificate of Title from the Supreme Court not to notify others, who may have an interest in the same land, of the court action and their intentions.

All Quieting Titles Act applications are supposed to be made public, so rival claimants can challenge title applications, but this does not always happen.

And, as Justice Crane-Scott said, the Supreme Court is often not made aware of the existence of rival “adverse claimants”, with applicants often lying that they have made “full and frank disclosure”.

Among the most egregious examples of Quieting Titles Act fraud is the three-decade saga impacting a 156-acre tract in the Pinewood Gardens/Nassau Village area, near to Sir Lynden Pindling Estates.

As previously reported by Tribune Business, a group of land speculators, assisted by some unscrupulous attorneys, obtained a Certificate of Title to the land via fraud, as they never notified - or made the Supreme Court aware - that there was an “adverse claimant” in the shape of Arawak Homes.

They then promptly sold the land to unsuspecting Bahamians, paving the way for three decades of legal battles that have damaged the lives - and largest investments - that many ordinary persons will make in their homes.

Such actions also undermine Bahamian economic activity by tying up major land tracts in legal disputes for years.

The situation cries out for legislative reform by Parliament, but there has been little appetite for this to-date in a body that is typically dominated by attorneys.

Justice Crane-Scott’s comments came in a Court of Appeal ruling involving a family land dispute in Exuma, where two brothers - Milton and Daniel Strachan - were appealing then-Chief Justice, Sir Michael Barnett’s, verdict that set aside their Certificate of Title on the grounds that it was fraudulently obtained.

The land in question was Lot 3 in the Hooper’s Bay subdivision, and the Strachan brothers made “numerous complaints of bias against the Chief Justice, challenging his findings and making repeated and very serious allegations”.

The Strachan brothers alleged that they had a title to the property than their rival, Harcourt Strachan, and that they had published their Quieting Titles action in both the newspapers and a sign on the subject land.

Milton Strachan had claimed in an affidavit to have farmed the property for more than 20 years, and built two rental houses and a pre-school on it, before affirming that all relevant material facts had been disclosed.

However, following legal challenge, Sir Michael noted that Milton and his brother had failed to disclose their dispute with Harcourt Strachan over who owned the land. Nor did they admit that the pre-school had been built by Harcourt and his wife (Milton’s daughter), or that it was the couple - rather than the brothers - who had been occupying the school.

Yet Milton and Dwight Strachan had alleged in their original Certificate of Title application that it was they who built the pre-school, and had enjoyed “undisturbed occupation and possession of the property even to the present date”.

Then there was the testimony of Rosanell Thompson-Smith, who was employed at the pre-school for six years by Harcourt Strachan from 2008, becoming his lessee in 2010.

She said no notice of the Quieting action was posted on the property, and she did not become aware of the action until 2013.

As a result, Sir Michael found that the Strachan brothers had obtained their Certificate of Title “by deceit”, as they had not admitted that they were “not in exclusive possession of the land” as originally alleged.

Nor did they admit to the dispute with Harcourt Strachan, which suggested that there was a rival claim that needed to be disclosed to the Supreme Court before a Certificate of Title could be granted. Harcourt Strachan said he was never informed of the quieting action despite being stationed on Exuma until 2010.

Upholding Sir Michael’s ruling, Justice Crane-Scott said: “In my view, the Chief Justice was completely justified in his findings made in his written ruling that the appellants [the Strachan brothers] had misrepresented the true facts and concealed the material fact that the preschool had been built by the daughter and niece of the first and second appellants at a time when she had been married to the respondent [Harcourt Strachan].

“What is even worse, the Abstract of Title, and the several affidavits which the appellants filed in support of their petition in the quieting action, contain false representations of fact about their being in undisturbed and exclusive possession of the whole of Lot 3 which, in the light of their subsequent testimony during the fraud action in the court below could (as the Chief Justice found) only have amounted to a calculated attempt to deceive the court.

“As a result of the falsehoods which came to light in the fraud action, coupled with the deliberate concealment from the court of material information which would have alerted the court to the identity of other persons who may have had a claim adverse to - or inconsistent - with that claimed by the appellants in respect of that portion of Lot 3 occupied by the school, and with whom the appellants were still in a dispute, the learned Chief Justice was prevented from giving directions.. for the service of notice of the quieting action on the respondent and his lessee, Mrs Thompson-Smith, enabling any claims which they had to have been investigated in the quieting action.”