By NEIL HARTNELL
Tribune Business Editor
The Bahamas Real Estate Association’s (BREA) president yesterday backed calls for this nation to both establish a Land Registry and reform the Quieting Titles Act to prevent widespread real estate fraud/theft.
Carla Sweeting told Tribune Business that while the Quieting Titles Act did serve a legitimate purpose, it was too open for abuse by unscrupulous land speculators and their attorneys.
“I’m sure we would,” Mrs Sweeting said, when asked whether BREA and its members would back efforts to reform the Act and other elements of the Bahamas’ land system.
“The Quieting Titles Act, I think, has a purpose but it definitely needs to be looked at because it’s being abused.... While there are legal reasons for it, people are exploiting it. It needs to be amended to qualify persons for Quieting.
The Quieting Titles Act was passed in 1959 to cure title (land ownership) defects for which there was no remedy. It has proven helpful to persons wishing to legitimise their lawful occupation of a property, or who possess commonage or generation land, in obtaining a documentary Certificate of Title.
Mrs Sweeting disclosed how the Act had helped her husband, and his family, obtain and prove their ownership of a tract of land in Marsh Harbour, Abaco, known as Sweeting’s Tract.
However, a Court of Appeal ruling published earlier this week warned that the Bahamian judicial system was susceptible to being “an unwitting pawn” in the commission of land thefts/frauds.
Appeal Court justice, Stella Maureen Scott-Crane, said the Quieting Titles Act, in particular, was effectively being employed as a tool to steal land, given that “material facts” relating to title applications were often hidden from the courts.
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........
“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...”
Mrs Sweeting added: “Quieting needs to be fixed. There’s a time and a place for it, but it can’t continue to be allowed to be abused.”
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.
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.
Mrs Sweeting, meanwhile, also backed calls for the Bahamas to establish a Land Registry and move to a system of registered land.
“We have a very antiquated, colonial system,” she told Tribune Business. “We need a Land Registry otherwise we’re going backwards. There’s so much that needs to be fixed like that.
“It’s going to take someone who’s determined to fix this, get support from various sectors of the community, and sit down and see how it can be fixed.
“It’s a sad state. I could tell you story after story about how lawyers don’t properly look at title searches and make sure stakes are in place.”
The BREA president recalled the case of a person who received the go-ahead to purchase a property from their attorney, only to find out it was improperly marked out - with the site already owned by a neighbour.
“The bottom line is that this person has a credit risk if they do not keep up payments on a property that they will never be able to build on,” Mrs Sweeting said.
“The whole thing needs to be fixed. We’re not making progress at all. Something has to be done.”
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 were sometimes prone to error, and move the Bahamian real estate market away from being based on “first to record” title deeds.