The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Land ownership rights will become much clearer and accessible to all Bahamians if the Government follows through in its Speech from the Throne pledges, a long-time reform advocate says.

Sharlyn Smith, senior partner at the Sharon Wilson & Company law firm, told Tribune Business in a recent interview that it had been “wonderful” to hear governor general, Cynthia Pratt, reveal the Davis administration’s promise to enact land registration legislation during the new session of Parliament.

“One long-standing issue that our government will address in the upcoming legislative session is the security of property ownership,” the governor-general said in a little-noticed aspect of the speech. “My government will do what many previous administrations have promised: It will enact appropriate legislation to deal with land registration and the adjudication of disputes.”

Describing land registration, and a system of registered land, as “clearly needed” given previous estimates that ownership of up to half the privately-owned land in The Bahamas is in dispute, Mrs Smith said enacting these changes will bring The Bahamas into line with almost all other English-speaking countries on land administration.

Besides giving all Bahamians “more certainty” when it comes to land ownership, she added that such a system will also create a land registry that will serve as the only place where persons can research and inquiry as to who a specific parcel of land belongs to, and if there are any liens or other charges secured on it.

Mrs Smith said the need for such reforms had been acknowledged going back to the pre-independence era, and added: “Ever since every administration has made some sort of mention of it, and that in itself is an indication of the good it stands to do for the country because of all the areas and people impacted.

“I think it’s something that’s critical. When we take that step we will further be following pretty much all of the English-speaking Caribbean countries. We’re one of the few that has not yet implemented land registration; a system of land registration.”

The last Ingraham administration led similar efforts to those foreshadowed in the recent Speech from the Throne 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, although the current government’s position is unclear.

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.

Prior to being registered, the ownership of all land parcels in The Bahamas will have to be determined and adjudicated. “The adjudication process itself will clarify a lot of land ownership issues, and establish ownership and rights to each parcel of land in the country,” Mrs Smith told Tribune Business.

“To do it in the context of adjudication, it will be more accessible to most Bahamians because the system will come to people as opposed to people going to the system. The cost can be very expensive. Once a land adjudication system is set up, it makes it more accessible to more Bahamians to establish land ownership rights.

“And once in the registry, it makes ownership more certain. It establishes only one place where you go to look at ownership of a parcel of land, which is the land registry. The system today requires doing a title search that goes back 30 years or to a Crown grant. This eliminates that,” she added.

“The Privy Council has told us ownership of land in The Bahamas is not absolute because we’ve not adopted a system of land registration. It will make it less costly to transfer land and make land ownership more certain and make it faster to transfer an interest in land. I think it’s brilliant.”

While transitioning to a land registration system, and determining the ownership of all parcels in The Bahamas, will likely take years, Mrs Smith said some areas - such as those that have been subdivided into lots and sold to buyers - could move more quickly.

She added that persons would also have better notice of Quieting Titles actions, and whether their property is affected, under a registered land system. “Land is capital, and if we are clarifying ownership of the capital it would be wonderful,” Mrs Smith said. “I think the attorney general [Ryan Pinder KC] a few months ago had mentioned a committee of some government agencies that had been working on it.

“It’s brilliant. It’s wonderful, and it’s never too late to do the right thing. It really would be. Successive administrations going back to pre-independence have discussed this. It really would be wonderful to see it come to fruition.”

The Inter-American Development Bank’s (IDB) follow-up report to the Land Use Policy and Administration (LUPAP) project of the early 2000s identified multiple serious deficiencies with The Bahamas’ current system that still have not been fixed more than a decade later.

These included “overlapping claims” to land ownership and rights, meaning that numerous parties are claiming ownership of the same property, plus “high transaction costs” associated with real estate sales and general uncertainty over land ownership.

Title deeds are not required to be recorded, and there are questionable descriptions of title deeds in the properties that are recorded. This allows the same parcel of land to be sold multiple times using different descriptions.

A land registry 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.

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.

The Limitation Act 1995 had also made it easier to remove a documentary title holder if a trespasser enjoys undisturbed adverse possession and use of a property for 12 years or more.