By Diane Phillips

The subject of land reform is probably one of the most important issues facing us. Yet it feels so complicated that most of us do exactly what I’ve been doing – hoping others with a better understanding, good common sense and a lot of wisdom will make the right decisions and we can just carry on worrying about the things we understand and can manage.

But maybe we do need to take a minute to get familiar with the issue even if it isn’t exciting because the outcome could take The Bahamas to a place where we have never been before. We could wind up with a sophisticated, transparent registration system or a land grab that would usurp possession, violate long-standing rights or take the plot Grammy has lived on her entire life away from her.

I am not a lawyer so the treatment of this controversial legal issue is coming strictly from a bystander asking others with greater knowledge to answer the somewhat vexing question “Should we or should we not have a full land registry?” Is it or is it not true that the push is driven by a desire to free up massive pieces of uncultivated land in a “use it or lose it” proposition which strikes me as handling property like we do muscles.

But as I said, what do I know? I am just a confused consumer.

And why, by the way, is it called land reform as if we were asking the land itself to reform its behaviour? It’s not the land that has to reform. Apparently, it is us.

Immediate payment

If the amendment to the Conveyancing and Law of Property Act is passed, it will change how property transactions are handled. No longer will the prospective buyer rely solely on a lawyer to research the title and give the all-clear so he or she can transfer the balance of funds and become an owner with the option to pay recording fees and document ownership.

Without mandatory recording of transactions, a surprising number of purchases goes unregistered. Secrets are safe. A man can buy a property for a sweetheart and his wife would never know. A dad could buy for his outside child and the ones living at home would have no clue. Without a registry, who owns what land or house, acreage or shopping plaza is nobody’s business but the person who owns it. He or she is free to share the information or hide the deed under a stone in the backyard.

Without mandatory registration that would eventually lead to a grid of transparent ownership, we preserve and prolong a culture of confidentiality akin to that of offshore financial services in the days of numbered accounts long before Know Your Client requirements were demanded.

Under the proposed amendment, all purchases would be immediately registered, creating a land registry that would grow over the years. All recording fees would be paid at the time of the transaction.

That doesn’t seem too complex and in fact, seems to make good sense. There is still plenty of work for the law offices that depend on real estate transactions for their bread and butter at least for the time being until the registry contains all the information anyone would need to ensure good title and then lawyers might be scrambling for other work. But again, unless you are one of the more than 1,000 lawyers registered with the Bahamas Bar Association, or your job depends on one of those, that is not of grave concern. I am not downplaying the importance of law firms, just hinting that over an extended period of time, the nature of their work would evolve if a land registry becomes the primary basis of title search.

Avoid eyesores from unregistered property?

Under that scenario with a requirement to register a purchase, would we avoid situations like we have now where (insiders tell me) one of the most blatant in-your-face eyesores in The Bahamas goes unchecked because the land has changed hands but the well-connected family which purchased it never registered the title. By not doing so, does that mean they are not recognised as the responsible owners on the books, not responsible for tearing down the crumbling metal building? Are they not responsible for paying Real Property Tax? Does their failure to register give them the right to a blight without a cure in sight?

I don’t know the answers to any of those questions which is why I am asking folks with greater insight to explain to the rest of us why the proposed amendment is in the simplest terms, good or bad.

So let’s say it is good, as amendment proponents say, in that it makes it clear who owns what. That is the very basis of a capitalist economy unlike a shared economy as in the Lucayan population. Proponents quote economists and philosophers from Machiavelli to Galbraith. Knowing who owns what is essential for conducting any sort of commerce. Title clarity, they argue, boosts investor confidence and provides easier access to credit, in the end helping economies grow. They cite the Ontario model which works well for Ontario, a highly sophisticated city in Canada.

The Canada model

But the settlements of The Bahamas are not highly sophisticated cities in Canada so would the Canada model work here? Canada has streets and grids and addresses and mail delivery and income tax, all relatively sensible ways of identifying who owns what and where. We have slabs of dirt upon which slabs of concrete were poured for a foundation. We have pieces of earth on which concrete blocks were piled up as pillars before a pine floor was laid.

Canada has street signs everywhere and printed addresses. The Bahamas has addresses of a different kind, like his Grammy live by da second corner after da broke down truck what used ta be yella with dat tree what blooms in the summer comin’ out its hood, you know the one next to dat place what burned down years ago by where da kids put up da tire in da tree for one swing. That’s the kind of address we have in more places than not and registering land by da yella truck could be a bit trickier than we think without causing an absolute conniption comfiguration in da community.

Those who oppose the amendment say “Hold on a minute. That registry thing is all fine and good, but my Ma and her Ma and Pa and their folks before them lived on this property all their lives. It was given to them or they bought it for 20 pounds. They had one paper about it way back but that got lost in the hurricane of ‘29”.

What happens to all those who live on land they purchased but did not record or live on generation land, commonage, land bequeathed but not recorded? What happens to them if the amendment passes and adjudicators come in to make decisions that could displace those whose only security is the little piece of land they farm? Do we wipe out their rights? Do we sweep them out of the way for a developer or negate their place as landowners?

And what about acreage properly deeded but held by families for future generations. Do we even know what percentage of the inhabited property in The Bahamas held by deed has never been registered?

A model for the future or a massive land grab?

What If every individual, every family, every owner of a business had to prove immediately that they own the land on which they are situated or they would be at risk of losing it to the state, what would that do to the less fortunate among us who are least likely to have all the records they would need and less able to hire the lawyers to help prove their ownership?

Would the amendment open the door to the largest land grab The Bahamas has ever seen?

As I said at the start, this issue is a tough one. There is no easy answer. We must take our time. Perhaps the way forward is gentle with a mandatory land registry process going forward but honouring grandfather clauses, principles and rights for existing cases. The very idea of teams of adjudicators traipsing through The Bahamas, rendering the kinds of decisions that Real Property Tax assessors did a few years ago with little or no sensitivity to local conditions is downright terrifying. Land ownership and partisan politics is a volatile mix that could erupt in a volcanic disruption of life as many knew it. An advisory board is consulting on a conceptual land registry but apparently even they struggle with the potential fallout.

The one thing I can say with certainty is that this is one issue that we have to get right or we run the risk of becoming a nation where property ownership is no longer guaranteed. Uncertainty is never good for investor confidence nor is it comforting for those who call The Bahamas home.

The benefits of a land registry are clear, public transparency of who owns what, eliminating or reducing future title disputes, creating safer lending for lenders and easing requirements for borrowers. But whether such a clear-cut path to registration will work in The Bahamas is unclear. We are a convoluted conglomeration of generation land, commonage, Crown land and land deeded by the Crown.

Historically, development has been more organic than planned. Settlements and communities explode and contract with the introduction of a resort or industry or the failure of a large employer. We trusted verbal contracts for most of our history. Families raised money to buy property before banks were interested in helping Bahamians. We are only now emerging from a transactional environment that until recently was largely cash-based. We treasured embossed deeds with red ribbon trimmings and stamps. It was our ticket to pride and our legacy to those whose DNA carried our contribution.

Immediate across-the-board land registration could be the most serious issue facing the nation, even if the subject isn’t as exciting as sex, drugs and rock ‘n roll. If the amendment passes, will there be a crush of eminent domain filings and applications for quieting of titles? Would a land registry that seems to make sense lead to better understanding and investor confidence or shake Grammy’s world and that of foreign direct investment because the land you thought was yours you could not prove really was?

When you don’t know exactly where you are going, the safest way to get there is one slow and measured step at a time.