The Tribune

• Realtor defeats bid to cut land payout by $120k

• After Gov’t took property in 2011 for airport road

• Says ‘patience is a virtue’ after drawn-out battle

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A prominent realtor last night asserted “it’s about time for them to settle” after his family’s more than 11-year wait for compensation survived the Government’s bid to slash the payout by over $120,000.

David Morley, Morley Realty’s president, told Tribune Business “patience is a virtue” after the Supreme Court upheld the compensation calculation submitted by his late father’s companies for land that was compulsorily acquired by the Government in 2011 to facilitate New Providence’s airport gateway road expansion.

Ex-chief justice Sir Brian Moree, in a January 27, 2023, verdict backed their argument that interest at 5 percent should be based on the “market value” of the land taken plus a “10 percent uplift” provided for in the Acquisition of Land Act. The Government, in vain, had contended that the interest should only be calculated on the “market value” and the “uplift” excluded, which would have cut the compensation due to Mr Morley and his family by a six-figure sum.

Had the Government’s arguments prevailed, their payout would have been slashed from $3.867m to $3.746m based on the ten years, five months and 15 days’ worth of interest that had accrued since the last Ingraham administration served notice of its intent to acquire the subject land on August 2, 2011. Sir Brian, who noted that time period only covered up to the hearing of the case, indicated this will have to be “adjusted” and thus the final compensation may be more.

The case highlights just how long many Bahamian and foreign property owners have to wait for compensation when the Government compulsorily acquires their assets for the public good, such as road and other infrastructure expansions that cannot take place without them. Years-long waits, including for a decade or more, are not uncommon and can have severe adverse financial consequences for those involved.

And, the longer the Government takes to pay, the higher the interest bill due to the former landowners will be as well as the legal costs it has to pay if the matter goes to court and it is defeated. Thus delayed payments to claimants represent a further cost burden, which could be avoided, for already hard-pressed Bahamian taxpayers.

“That was a long, drawn-out process,” Mr Morley said of efforts by his family and late father’s companies to settle the amount of compensation due. “I started with Callenders & Co probably five years ago. Patience is a virtue. You’ve got to take your time, do it correctly and let the law do what it’s supposed to do.

“I don’t mean anything untoward the Government on this. It’s the principle of it. The law requires it, and the longer it takes it ends up costing the taxpayer more and the legal fees cost more. It’s the principle of them settling a debt. If you owe the Government any Business Licence fees, VAT and real property taxes, don’t be late on that.

“We tried to sort it out with the Government. I have letters going back to when Audley Greaves was in the Prime Minister’s Office trying to get the matter settled. It went nowhere. We’re in the 11th year now of asking for them to settle. It’s sad when you’ve got to take your own government to court, and when you’re right and they know you’re right. We’ll move forward and get this put behind us.”

Mr Morley said he and his attorneys had supplied the Attorney General’s Office with a Privy Council ruling supporting their argument that the 5 percent interest was to be calculated based on both “market value” and the “10 percent uptick”, but the latter had elected to press ahead with its legal challenge.

Meanwhile Mike Lightbourn, Coldwell Banker Lightbourn Realty’s president, told Tribune Business it was common for land owners to wait years to be fully compensated by the Government for seizing their property to facilitate roads and other public infrastructure projects.

“I would say that’s not unusual,” he said of the Morleys’ 11-year wait. “It’s not fair, but you get interest. It’s not unusual. It takes for ever. I can guarantee there are other people that have not been paid.” This newspaper understands that those with larger compulsory acquisition claims tend to have to wait longer for payment given that the sums involved represent a further drag on the Government’s already-strained cash flows.

And Tribune Business was told by a well-placed source some eight to nine years ago that the collective value of such claims was then higher than $60m. The current figure is unknown, but is unlikely to have improved significantly given the Davis administration’s revelation that it inherited a multi-million dollar sum in outstanding awards for all types of judgments when it took office.

Mr Morley last night said the property involved in his family’s dispute with the Government was located on the south side of JFK Drive by Lake Killarney. It stretches from the roundabout by South Westridge Estates heading east almost to the junction with Gladstone Road. It was acquired by the Government to facilitate the airport road’s expansion into a four-lane highway.

The property was owned by two companies controlled by Mr Morley’s late father, Winterhaven Holdings and Lakeland Ltd. They and the Government agreed that the 230,840 square feet taken for the road expansion would have a “market value” of $10 per square foot, taking this to $2.308m. They also reached a deal that the “10 percent uplift” allowed by the Act would be based on this “market value”, thus adding a further $230,840 to the compensation.

This took the payout total to $2.539m, and the two parties also agreed that the 5 percent interest would run from the August 2, 2011, notice of acquisition date. However, they were unable to agree the basis for the interest calculation, and whether it should include the “10 percent” uplift or not.

The Morley companies asserted that it should be included. This produced interest of $1.328m, and a total award of $3.867m. However, the Government contended that the “10 percent uplift” should be excluded. Using its method, the interest component was reduced to $1.207m or less than one-third of the total $3.746m award.

Sir Brian, in his verdict, found for the Morley companies. “The interest is to compensate the owner, at least partially, for the deferred payment of money which he is entitled to upon either the private sale or compulsory acquisition of the land. That is commercially efficacious and I saw no basis in the Act to interpret the proviso as only requiring interest to be paid on a part of the outstanding money and not all of it,” the ex-chief justice ruled.

Mr Morley said: “I had to pressure government to get a judgment against them to force their hand. I’ve been advised by my attorneys not to accept a full settlement. It may take a series of agreed stage payments on it. At least at this point in time I have a ruling in my favour and will be able to enforce it in court.”