By NEIL HARTNELL
Tribune Business Editor
A Bahamian developer yesterday warned new dubious land practices are threatening to "wreak havoc" for the construction and real estate industries.
Franon Wilson, Arawak Homes' president, told Tribune Business that "significant mischief" looms after a deed purporting to transfer ownership of a 1,000-acre western New Providence land parcel - including the upscale Lyford Hills and Serenity subdivision - was accepted for recording in the Registry of Records.
Carl Bethel QC, the attorney general, last night confirmed that an internal government probe was being carried out into the "vesting deed" in question given that it was "defective" and non-compliant with the law.
He added that the Registrar General was trying to determine "how it got through" the established system of pre-recording checks, and he himself is now "awaiting a report" on the matter before deciding what action to take.
Mr Bethel and the Attorney General's Office were alerted to the 1,000-acre "vesting deed", which was accepted for recording on December 11, 2019, by Arawak Homes and its in-house attorney, Tavares LaRoda, who voiced alarm that it could trigger multiple land title disputes.
Mr LaRoda, in a June 9, 2020, letter to Mr Bethel said the company's own research into the parties behind the western New Providence situation had revealed their involvement in "dozens of similar deeds with identical deficiencies" that should have prevented their recording by the Registry of Records.
Mr Wilson, meanwhile, told Tribune Business that the western New Providence "vesting deed" highlighted a questionable new practice being employed by persons to claim title to land/real estate that neither they nor their family has ever been connected to.
Typically finding someone to claim that a long-dead relative, such as a great-great grandmother or father, had left themselves and their family property via a will, Mr Wilson explained that those behind the scheme were simply drawing up deeds saying they inherited specific property.
Once they get these deeds recorded in the Registry of Records, they then use the documents to claim ownership and try to take possession of the land - even though it may already be occupied by a household or business with perfectly good title.
Mr Wilson said this threatened to cause long, expensive and time-consuming court actions if homeowners and businesses are to protect their interests, and many may not have the financial resources and/or will to prevail in a drawn-out battle.
He added that Royal Bahamas Police Force is reluctant to intervene on the basis of a civil not criminal matter, saying this was brought home to home when a work colleague and his siblings were informed by neighbours that someone was trespassing on property left for them by their deceased mother.
When confronted in the presence of the police, the man produced legal papers claiming it was his property and the officers declined to intervene.
Mr Wilson said Arawak Homes also suspected the scheme may have been behind two trespassing incidents that occurred on a 100-acre tract of land owned by Luxury Homes Bahamas, an affiliate in which it holds a controlling interest, that lies between Solomon's Yamacraw and the Treasure Cove subdivision.
The developer subsequently obtained a Supreme Court Order on June 10, 2020, to prevent further episodes after tractors operated by unknown persons cleared a significant portion of the site and ripped down the fence separating Luxury Homes Bahamas property from Treasure Cove.
Mr LaRoda, in a May 27, 2020, affidavit supporting the Supreme Court application warned that the unregulated clearing could inflict "catastrophic damage" on Water & Sewerage Corporation piping infrastructure that served nearby eastern New Providence communities.
Mr Wilson and Mr LaRoda, in an interview with Tribune Business, yesterday urged the Government to protect "the integrity" of the Registry of Records given that it appeared to be the source facilitating the latest land schemes.
"We're still struggling with the idea that we don't have registered land in The Bahamas. It's gotten a bit worse," Mr LaRoda added of the present situation. "A lot of challenges have been caused by people getting certificates of title from the courts, but there is now a new dimension.
"They are now just recording deeds that says they inherited the land, and are using that to take possession of the land. People are being allowed to record deeds that they shouldn't be under law. The police are taking the position that they're not going to get involved in a civil matter."
Mr LaRoda said legitimate property owners were faced with the "very expensive process" of having to go to court and obtain an injunction to protect their interests, which likely included the biggest-ever investment most would make in their lives - their home.
Mr Wilson said its Luxury Homes Bahamas' travails prompted Arawak Homes to do some digging, which turned up the "vesting deed" for the 1,000 acres in western New Providence that was accepted for recording less than seven months ago.
Tribune Business has the "vesting deed" in its possession, which shows that is purportedly based on a will dating back to February 1942 and the subsequent probating of two persons' estates. A 96 year-old Fox Hill woman last October swore an affidavit purporting to confirm that she knew the person behind the original will.
This newspaper is not naming the persons involved with the "vesting deed" for legal reasons, but the documents recorded with the Registry of Records incorporate numerous survey plans of the existing Serenity and Lyford Hills subdivisions "as built out right now".
Mr Wilson, pointing out that these subdivisions were now full of residents, and homes that have mortgages on them, said they now potentially have to deal with a competing ownership claim to the entire area.
Setting out his concerns in the June 9 letter to Mr Bethel, Mr LaRoda said the 1,000-acre "vesting deed" appeared to violate the VAT Act because there was no stamp confirming whether due VAT had been paid on the sale/transfer.
And it also seemed to breach the Registration of Records Act's clause five by not recording the signature, address and occupation of the person preparing it in the margin's first page - something Mr Bethel confirmed was an accurate concern.
"It has come to our attention that a deed purporting to transfer in excess of 1,000 acres in western New Providence has been recorded in the Registry of Records," Mr LaRoda wrote.
"Our review of transactions involving the parties to the vesting deed reveals dozens of similar deeds with identical deficiencies which should have rendered them unable to be lodged for recording under the terms of the Registration of Records Act.
"It is to be noted that this deed purports to transfer the ownership of a significant portion of western New Providence and will create significant mischief. As a matter of the greatest national importance, we urge your respective offices to review the procedure for the registration of records to ensure that documents entering the register comply with our laws," Mr LaRoda continued.
"We believe that by allowing documents such as the vesting deed to be recorded - in breach of our laws - exponentially increases the risks associated with investing in Bahamian real estate.
"The continuation of this pattern will result in untold damage to our construction and real estate industries as disputes from the creation of duplicated title ensues. In our view, the Registry of Records should not be tainted by adding documents to the register which the law itself prohibits from being recorded."
Mr Bethel, in messaged responses to Tribune Business, confirmed that the 1,000-acre western New Providence "vesting deed" is being probed by the authorities. "I am only aware of one case, which I have referred to be internally investigated, and am awaiting a report before taking further steps," he replied.
"It was a vesting deed done, apparently, after some kind of purported probate or administration action. The document was otherwise defective as it did not have the lawyer's signature in the margin.
"The Registrar General is trying to ascertain how it got through, as our policy is that all documents lodged for recording must be checked by the officers in the Registrar General's Department for technical compliance."
Messrs Wilson and LaRoda yesterday called for stiffer penalties to be imposed on persons who sought to seize land in questionable circumstances, adding that the person typically put forward as the 'front' with the link to the property in question often has no assets to claim against in a court action.
"This is the start of something all over the island from east to west," Mr Wilson told Tribune Business. "People have found a new way to try and seize land, and this could wreak havoc in The Bahamas. Today, this, for real estate in The Bahamas, is the biggest threat.
"With COVID-19 everyone is trying to keep their costs down, and there's a group out there wreaking havoc that will inevitably drive up the costs of development and real estate. The Registry is being used to facilitate this. If someone asks what's the biggest challenge in real estate in The Bahamas, it's not COVID; it's this."
Calling for the Government to enforce the laws, Mr LaRoda argued that this was the only way to protect legitimate property owners and save them from having to pay five to six-figure sums in legal fees to safeguard their investment.
"We need to do more to protect the integrity of the Registry," he added.
The Arawak Homes attorney, in his affidavit dealing with the Luxury Homes Bahamas matter, said one of the two trespassers at Yamacraw Hill Road had turned around and initiated a Supreme Court action claiming the company was the trespasser. No ruling has been given, and the firm has filed a defence.
Turning to the second "trespass", Mr LaRoda alleged: "On Friday, May 15, I received call from a resident of Treasure Cove subdivision advising that persons unknown had tractors on the Yamacraw property (a portion of which abuts her residence) and were tearing down her fencing."
After summoning security to the site, and conducting an investigation himself, the attorney found that "the locks to the entrance gates were broken, numerous trees were destroyed and a large portion of the land was cleared.
"The northern boundary wall was also vandalised by persons painting 'private property' and 'no trespassing' on the same," Mr LaRoda alleged. "The plaintiff believes that the clearing of the property will cause irreparable harm to the said property through the indiscriminate excavation, destruction of mature trees and damage to the boundary fencing and wall.
"The plaintiff also believes the indiscriminate excavation of the said property by persons unknown is likely to damage the Water & Sewerage Corporation pipes which run across the northern part of the property. This would result in catastrophic damage to the sewerage systems in surrounding communities."