The Tribune

By YOURI KEMP

Tribune Business Reporter 

ykemp@tribunemedia.net

Arawak Homes chairman yesterday urged The Bahamas to embrace a system of registered land as he warned that the Quieting Titles Act has become “a licence to thief”.

Sir Franklyn Wilson, who also heads Sunshine Holdings, told the University of The Bahamas (UOB) Business Week seminar that here is “a lot of work to do” in creating better land policy in The Bahamas. He described the “first problem” as proving proper title to a property, and the second as protecting it from people that are trying to “steal it”.

“There’s something that’s been on our books called the Quieting Titles Act that is a licence to thief,” he argued. “In our country, somewhere and at some time, we must develop some system of land registration such that people know this is my land, it’s more difficult for people to steal it and it becomes more complicated.”

Sir Franklyn’s concerns are nothing new, but the Government and policymaker level has thus far been unwilling to enact serious reform. 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.

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 this newspaper, 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”.

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 in a body that is typically dominated by attorneys.

There is also much scepticism as to whether a land registration system will ever get off the ground. 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.

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.

The basic current system is centred on the Registrar General’s Department and at the Department of Land and Surveys. The former only records title once it has been notarised and due taxes paid, while the latter maintains a map of all lands in the country, both private property and Crown Land, with no delineation in ownership.

A land registry, though, 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.

Sir Franklyn said a proper land registry is an “issue we have to address if we are going to build a resilient economy. Registration is a part of it. Proper policies, and also proper policies related to Crown Land”.

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.

Sir Franklyn, meanwhile, yesterday also called for land policy reforms, “One of the most significant policy divides in the country revolved around land when one government said we must introduce something called the Immovable Properties Act. That was intended to take out the degree of speculation, and to make it possible for people to not just hoard the land and do nothing on it, just speculating,” he recalled.

“The fact about that is that policy, as attractive as that may sound to you, the fact of the matter is it adversely affected the pace of economic activity because that speculator may be ripping the country off, but the fact of the matter is he was spending something and something is better than nothing.”

The former Immovable Properties Act is also viewed as having a “negative” impact because it drove up the cost of property in the country. Sir Franklyn said: “Some 20 years ago, you could have gotten a three-bedroom, two-bathroom, living room, dining room, kitchen and utility for under $100,000, along with the land”, but the average price for a similar home and property today starts at $300,000 in even urban areas.