By NEIL HARTNELL
Tribune Business Editor
Foreign investors, who launched a full-blooded online assault against a top Bahamian commercial law firm after their ownership of an Exuma cay was challenged, have triumphed in their dispute before the Supreme Court.
Chief Justice Ian Winder, in a September 15, 2022, verdict found that Ocean Point Estates has “the better documentary title” to Polly Cay than their rival Bahamian claimant, Iva Dean (nee Strachan). And he also rejected her claim to a possessory title, finding there was no evidence that Ms Dean had been in possession of the island for 12 years or longer as required by law.
Barring an appeal, the Chief Justice’s ruling resolves a decade-long dispute that prompted a savage attack on Ocean Point Estates’ first attorneys, Graham, Thompson & Company, via a website that still remains accessible to this day although Tribune Business is not providing the address for legal reasons.
Ocean Point, whose principals are Efraim Sade and Eyal Ben Zvi Sasson (also known as Eyal Waters), asserted that Graham, Thompson & Co botched the Polly Cay title search by failing to detect Ms Dean’s rival ownership claim, thus exposing them to significant potential loss on their $500,000 purchase. And, to add insult to injury, they alleged the law firm and its attorneys sought to charge them a $100,000 fee to defend their ownership interest before the Supreme Court.
However, the Chief Justice’s ruling effectively both vindicates Graham, Thompson & Company and the title search it conducted on Ocean Point Estates’ behalf. He points out that it would have been impossible for the firm to have known about Ms Dean’s rival claim because her competing conveyance for Polly Cay was only lodged in the Registry of Records in 2011 - some two years after their own search was completed in 2009.
“Dean’s conveyance would not have come to the attention of Ocean based on the available records when a title search would have been conducted for Ocean by its attorneys,” Chief Justice Winder ruled.
It is understood that Graham, Thompson & Company and its principals were furious when they became aware of the Polly Cay-related website’s existence some years ago, and attempt to smear the company’s reputation and integrity. Sources familiar with the situation said the law firm had planned to initiate legal action, although it is unclear if this happened. It now remains to be seen if the website will be taken down following the Supreme Court ruling.
Ms Dean, who was represented before the Supreme Court by Damian Gomez KC, former minister of state for legal affairs, had claimed documentary title to Polly Cay after it was purportedly conveyed to her on July 8, 1988, by her uncle, Allan Strachan.
And she also claimed possessory title to the 7.33 acre island, which is located 600 yards from mainland Exuma in the protective lagoon formed by Blue Island, by virtue of the Strachan family occupying it for more than 200 years and using it for purposes that included livestock farming.
“Upon her purchase from Allan [Strachan], Dean did not proceed to have her conveyance recorded in the Registry of Records until February 4, 2011,” Chief Justice Winder noted. “Dean says that in 2012 she discovered that Polly Cay was listed for sale online. It was shortly after viewing the online listing that she found out that Polly Cay had allegedly been conveyed to Ocean.”
Mr Ben Zvi was alarmed to learn of Ms Dean’s rival Polly Cay ownership claim in June 2012, when she claimed in an e-mail to the website offering the island for sale that she was “the rightful owner and do have claim to this property” and threatened legal action accordingly.
In a June 27, 2012, e-mail to Andrew Wells, attorney and partner at Graham, Thompson & Company, he wrote: “I got numerous disturbing e-mails from this person and I really do hope that it will turn out to be a claim with no base. In the past I did receive similar e-mails from other people.”
Mr Wells, in a reply the following day, reassured: “As far as I am concerned, and as far as I am aware, there is no basis for this person’s claim. It is not uncommon someone will make an unvalidated claim, but in any event we are responsible to deal with any title issues that may arise that affects the title that we did not tell you about.”
Ms Dean, though, initiated Supreme Court legal action in 2014, demanding both damages and that she recover possession of Polly Cay. Mr Ben Zvi then sought a second title opinion from the Sharon Wilson & Company law firm, which detected Ms Dean’s competing ownership claim now that her conveyance had been filed with the Registry of Records in 2011.
Central to Ms Dean’s case was the allegation that the September 9, 1928, conveyance in which a late relative sold Polly Cay to Jerome Washington Knowles - a transaction at the heart of Ocean Point’s title claim - was fraudulent because the ‘X’ used by her illiterate ancestor in place of a signature “does not match that on other documents” he signed.
However, in an accurate assessment of what was to come in the Chief Justice’s eventual ruling more than seven years later, Sharlyn Smith, an attorney with Sharon Wilson & Co, told Mr Ben Zvi that Ocean Point Estates has “a good prospect” of defeating Ms Dean’s claims.
Asserting that the fraud allegation will be “a difficult one to substantiate” given the evidence Ms Dean would have to produce, she added that the possessory title claim was also not a strong one given that a “squatter” would have to show “continuous, undisturbed possession” of the land for 12 years or more.
It appears that Sharon Wilson & Co’s findings triggered the Polly Cay website’s creation, and its assault not only on Graham, Thompson & Company but Bahamian attorneys and real estate transactions generally. Ocean Point Estates’ principals and their US attorney also embarked on a campaign to lobby the US embassy to stiffen its warnings to American investors about difficulties involving real estate deals in this nation.
At the trial before Chief Justice Winder, Ms Dean dropped the fraud claim and instead focused on her possession of Polly Cay. Meanwhile Mr Sade, a 50 percent owner of Ocean Point Estates, alleged that Ms Dean’s rival ownership claim had “caused great hardship and loss of business” for the company, although the judgment did not give any details.
It is unclear what Ocean Point Estates’ plans were for the island upon their 2009 acquisition, although they are likely to have been tourist and/or real estate related. The Polly Cay website refers to building permits for two homes. Mr Sade asserted that he “first visited Polly Cay in 2004, and the property was overgrown with bushes and had no sign of visible occupation by anyone.
“During the time I was visiting Polly Cay in the early part of 2000, my business partner, Eyal Bern Zvi, and I became serious about purchasing the cay due to the fact it was undisturbed and pristine,” Mr Sade added. He said he visited Polly Cay up to four times before Ocean Point Estates’ closed the purchase in October 2009 and there was no sign of anyone else being present.
Mr Gomez attacked alleged inconsistencies in Mr Sade’s evidence, namely that in his witness statement he said his first visit to Polly Cay was in 2000, only then to give the date as 2004 under cross-examination. However, Nadia Wright, the attorney for Ocean Point Estates, argued the Registration of Records Act gives “priority” to her client’s conveyance because it was recorded first on November 16, 2009.
Ms Dean’s was recorded on February 4, 2011. Backing this position, and noting that both Polly Cay title claims derive from the same root, namely the late Alfred Strachan, the Chief Justice agreed that the law “dictates that the title recorded first in time should prima facie be the accepted title” even though Ms Dean’s conveyance was dated earlier.
“With the allegations of fraud no longer alive it cannot be doubted that Ocean has the better title, as the validity of their documentary title has essentially gone unchallenged,” Chief Justice Winder said, accepting that Polly Cay had been conveyed to Jerome Washington Knowles almost a century ago.
Finding that Ocean Point Estates was a “bona fide purchaser for value”, he also dismissed Ms Dean’s claim to possessory title. “Dean’s own evidence was that she lives in New Providence, and had not visited the cay since 2004,” the Chief Justice said. “Dean conceded that there are no physical structures placed on the cay by her or anyone, and that any farming and livestock harvesting had long since ceased on Polly Cay.”