The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Sir Franklyn Wilson, pictured, yesterday pledged that the Privy Council’s rejection of his development company’s claim to 2,086 acres “in no way changes our plans and commitment” to South Eleuthera.

The Arawak Homes chairman, speaking after the Bahamian judicial system’s highest court found Eleuthera Properties had neither documentary nor possessory title to the long-disputed property near Bannerman Town, emphasised there was no impact to its planned developments at Cotton Bay and Jack’s Bay.

“Eleuthera Properties remains committed to south Eleuthera, and the decision of the Privy Council in no way changes that commitment,” Sir Franklyn told Tribune Business, revealing that the developer had invested some $100m in the area since 1988.

“This ruling does not change our vision or sense of future [possibilities]. It’s important to note this property is physically separate; in no way is it related to the land we have earmarked for a luxury resort and marina community to be developed by a subsidiary of Eleuthera Properties.”

That subsidiary is Jack’s Bay Investments, which Sir Franklyn previously revealed could be taken public via a listing on the Bahamas International Securities Exchange (BISX) as early as the 2019 first quarter.

Jack’s Bay, which Eleuthera Properties is developing in partnership with TGR Designs, a firm owned by world-renowned golfer, Tiger Woods, and Beacon Land Management, is just one of its landholdings in the South Eleuthera area.

They also include Cotton Bay and Davis Harbor, and build-out activities are accelerating with Eleuthera Properties “close to finalising a Heads of Agreement” with the Minnis administration for development of its substantial landholdings.

“No change: That’s the bottom line,” Sir Franklyn reiterated of the impact from the Privy Council’s ruling. “It’s [the disputed property] physically separate, and in no no way linked or otherwise connected to what we have developed.

“There’s a lot of land that we own in South Eleuthera... The point that I’m making is this ruling does not affect what we’re doing, and what we’re doing is already having an impact.

“For the purposes of Jack’s Bay and the marina, we are focused on where we want to start first. The idea is once we do that, a rising tide lifts all ships,” he continued.

“For example, the value of beachfront lots in south Eleuthera has risen to seven figures. There’s no precedent for that. When we sold our first lot for $1m, several realtors came to us and said we’re doing very well.”

Sir Franklyn added that Eleuthera Properties was already setting the stage for further development in the area, and explained: “Just before I went into this meeting with my attorney, the last document I signed was for a transaction we’re doing with the Hotel Corporation, which is the forerunner of another document that will trigger more development in south Eleuthera.

“We have a transaction that depends on us first concluding an arrangement with the Hotel Corporation. Once that happens this gentleman will conclude his transaction, and it will be more positive for south Eleuthera.”

However, Sir Franklyn and Eleuthera Properties’ opponents, the Bannerman Town, Millars and John Millars Eleuthera Association, were yesterday celebrating the Privy Council verdict as the “second best result” for denying the developer the property.

While the Privy Council did not grant the Association its long-sought Certificate of Title to the 2,086-acre property, one of their legal advisers said its members “still regard it as a win”.

Richard Lightbourn, the former FNM MP and now consultant at the McKinney, Bancroft & Hughes law firm, told Tribune Business: “From their perspective it’s a win because Sir Franklyn didn’t get it.

“From their perspective, it’s still regarded as a victory. Where we go forward we’ll have to wait and see, but our people have gained a degree of occupancy and, in line with the court ruling, Sir Franklyn has no occupancy in that regard.”

Mr Lightbourn said he and the other attorneys will meet with the Association’s principals today to “go over things”, adding: “We’re a little disappointed that the court didn’t go as far as granting the Association a certificate of title. This is certainly the second best result; that at least it was not given to Eleuthera Properties Ltd.”

The Privy Council, in its verdict, said it was “dismayed” by finding, “not without considerable regret”, that neither the Association nor the developer had proven their claim to ownership of the land through the Quieting Titles Act.

It acknowledged that its verdict effectively “locks up” the land, and will likely prevent its use for major development purposes. Mr Lightbourn described its appeal, with four to five miles’ of beach, as “exceptional”, adding: “Most people wouldn’t be aware of it because it’s somewhat hidden. There’s no real road to go over to the ocean side.”

That led to several observers suggesting to Tribune Business that the 2,086 acres be used either by Disney for its cruise port, or by Lighthouse Point Partners, given the current battle over the 700-acre Lighthouse Point property nearby.

However, the Privy Council acknowledged that its ruling was likely to deter any developer interest, since extreme risk would accompany any such activity in the absence of valid title ownership.

“This may well have adverse consequences for any development potential for the property, and it will certainly impede the achievement by the Association of its main ambition, namely to secure for all the descendants sufficient title to the property to enable them to continue to enjoy it, as and when they may choose to do so, now and in the future,” the Privy Council added.

“If either of those consequences are regarded as sufficiently antipathetic to the public interest then, in the Board’s view, they can only be resolved by legislation.”

The verdict effectively preserves the “status quo”, with members of the Association using small portions of the 2,086 acres for minor farming activities and such like. Its fate produced three different verdicts at each stage of the Bahamian judicial system, culminating in yesterday’s finding that no one can show ownership rights to the land.

The Supreme Court initially found Eleuthera Properties had proven documentary title to the property, which had its roots in efforts by Arthur Vining Davis, the Miami developer in the 1950s, to buy out all descendants of the Millar estate - to whom the Association and its members traced their ownership to.

The Court of Appeal, in a split verdict, saw the majority find that Eleuthera Properties had proven it had a possessory title to the land as a result of its conduct between 1988 and 2010. It rejected both the Association’s claim and the developer’s documentary title.

Finally, the Privy Council dismissed all claims yesterday. “The Board has, not without considerable regret, been driven to the conclusion that neither of the surviving competitors in these proceedings has established such title to the property as ought to be reflected in a certificate granted under the Quieting Titles Act,” the Privy Council said.

“The Board is dismayed that this lengthy, and no doubt extremely expensive process, has not quieted this title at all. This is not a case in which it has been possible to choose which is the better, or even the least worst, of competing titles, even though the process of advertisement of claims and barring of potential claimants reduced the number of applicants to five, and the number of survivors before the Board to two. The sad reality is that neither of the surviving claimants have proved any title at all.”

The Privy Council said persons “at present making sufficient use of” small portions of the property might be able to resist eviction as a result of their “possession”, but its ruling provided no total protection.