Land rights fears on Dorian rebuild

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Specialists have warned that post-Dorian restoration could be undermined by the inability of land holders to prove their ownership and/or properly re-establish the true boundaries of their property.

Regional and local experts, in a recent interview with Tribune Business, suggested that The Bahamas’ reliance on paper-based records that are not all properly lodged with a central registry could create difficulties for many persons when it came to rebuilding their homes.

Eric Allen, commissioner of land valuations at Jamaica’s National Land Agency, and Tex Turnquest, The Bahamas’ former director of lands and surveys, said many such records may have been lost or destroyed when Dorian’s winds and storm surges levelled their owner’s premises in Abaco and Grand Bahama.

And they added that the category five storm’s destruction of walls, fences and other recognisable boundary markers - especially where the properties themselves had also been completely levelled - presented a further potential obstacle to the speedy reconstruction of the Dorian-ravaged islands.

The duo agreed that protracted boundary “disputes” between neighbouring property owners, and those involving competing title claims to land for which title documents no longer exist, could stall recovery efforts as no lender would be willing to advance financing in such circumstances.

They urged the Government - either itself or by hiring a private company - to engage a team of surveyors to go into the storm-hit areas and properly re-establish land boundaries while also backing calls for The Bahamas to transition to a system of registered land where all records would be backed up electronically.

“I think the only precedent for this in recent times would have been Hurricane Irma, and the devastation it caused in Barbuda,” Mr Allen told this newspaper. “What we realised in that instance is you can have a situation where it destroys building records; not just the homes.

“Re-establishing persons houses can be exacerbated by the fact you’re not sure those land records exist, which means you can’t establish ownership.... And because land records are not used like they are in developed countries, it’s not just re-establishing land records; some may not have existed before.”

Mr Turnquest, now vice-president with TR Associates, added: “With respect to The Bahamas, you can have situations where given that we don’t have a land registry system here, people may record documents improperly. You may also have cases where people have documents to their property but did not record them. During the passage of Dorian, those documents held in the home may be destroyed.

“Given the situation in Abaco, where there has been a lot of clearing of debris, the markers put down on properties that have been surveyed may have been removed, and if homes have been destroyed they need to be re-established accurately.

“The only way to do that is to have them surveyed. That is a vital and important exercise they have to address. The question is where those homes and businesses were before. That is a question that, if not addressed now, will be very soon.”

Property transactions involving mortgage loans always have to be lodged with the registry of records to ensure that the lender’s security is properly perfected. However, many property deals - especially those that are private transactions not involving formal lenders - are often not properly recorded as the parties seek to avoid VAT (formerly Stamp Duty) and other taxes on the sale due to the Government.

Such practices are often more prevalent in Family Islands such as Abaco, and even east and west Grand Bahama, but Messrs Allan and Turnquest suggested the unintended consequences of not following established procedures could manifest themselves in Dorian’s wake with land owners unable to prove title to their properties if the documents were destroyed in their homes.

Mr Turnquest, meanwhile, suggested that “it’s not an insurmountable task” to re-establish land boundaries provided it was not conducted as a “piecemeal” exercise. He said: “The challenge is in cases where people’s property is completely destroyed. You have to have it re-established.

“You have to have it re-surveyed, and there are historic records that will assist the homeowner, land surveyors and the Government in re-establishing land boundaries. It’s time consuming but necessary to avoid any disputes down the road. Each parcel, if the markers are not there, each parcel has to be surveyed.”

He called on the Government to either itself, or by hiring a private company, engage a number of surveyors to do this work through a co-ordinated effort - especially in the more populated parts of Abaco such as Marsh Harbour, Dundas Town and Murphy Town.

“It would be better if the approach is to retain a number of surveyors under one common base of management to get it done as opposed to going at it piecemeal,” Mr Turnquest said. “The historic records are available, and the Government can assist with the framework. I know there’s also a company developing a parcel map to assist.

“People want to get back home, so there has to be urgency. As long as the effort is focused and not splintered it can be done in a reasonable time, and I think it has to be done. You can potentially have these disputes, and it’s one land owner’s word against the adjoining land owner’s word. You ought to avoid that.”

Both Mr Allen and Mr Turnquest agreed that such disputes would inhibit redevelopment and block access to much-needed reconstruction financing. The latter added: “I cannot say that it’s not been thought about. I can say it would be advisable to give though to.” They added that all work should be conducted to Royal Institute of Chartered Surveyors (RICS) standards.

Mr Allen, meanwhile, said Jamaica is currently in “the process of creating electronic records and having them stored in the cloud” when it came to title and land ownership documents. He added that around “three-quarters” of such records are now online, enabling The Bahamas’ southern neighbour to “mitigate the risk” associated with a paper-based records system.

“We want to make sure it’s much more robust,” Mr Allen said. “It’s something I would recommend to the Government of The Bahamas as well as other islands.” Besides the greater disaster resiliency, he added that it was also “very efficient to be transacting in electronic records in the 21st century. The business case is there”.

Mr Turnquest said he “supports 100 percent” the creation of a Bahamian land registry and system of registered land, adding that there were many others who felt as he did.

The former Ingraham administration developed a three-Bill package involving the creation of a Land Registry, with the goal of providing commercial and residential real estate buyers with greater certainty that they have good title to their purchases.

However, the Land Adjudication Bill, the Registered Land Bill and the Law of Property Bill were then sent back to the Law Reform Committee and other government agencies for further review, and no forward movement has been made on them since.

A proper Land Registry - and registration system - would eliminate the need for attorneys to conduct expensive, time consuming title searches that are sometimes prone to error. Creating a Bahamas Land Registry would move the Bahamian real estate and conveyancing market away from one based on “first to record” the title deeds.

It 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.