By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Bahamian judicial system’s highest court yesterday ruled that acquiring real estate in Freeport by adverse possession is not prevented by the city’s founding treaty, related laws or regulations.

The UK-based Privy Council, in dismissing an appeal over a land dispute, also found that there is nothing in the Hawksbill Creek Agreement, statute law or regulation that bars the Limitation Act, which sets the cut-off deadline by which legal actions must be launched, from applying in Freeport.

It reached this conclusion in rejecting Raymond Meadows’ appeal over an eight-year land dispute with Keith and Dorothea Rolle involving a parcel of land located on Lunar Boulevard in the city’s Britannia area. The former had challenged whether the Hawksbill Creek Acts, the Building and Sanitary Code, and Freeport’s 2014 town planning and development regulations impact the Limitation Act’s functionality.

And Mr Meadows had also questioned whether the restrictive covenants, contained in both his and the couple’s conveyances confirming their respective land titles and ownership, represented “a contractual waiver of the accrual of rights by adverse possession under the Limitation Act’.

The Rolles, on December 3, 2003, had acquired 28,000 square feet of ‘tract 19A’ on Lunar Boulevard. This was part of a larger 214.02-acre parcel, and the couple proceeded to construct a six-unit commercial complex on their property, complete with a ten-foot wide roadway and six-foot high wire fence.

A certificate of occupancy was issued by the Grand Bahama Port Authority (GBPA) on March 18, 2005. All this occurred before Mr Meadows acquired his 1.305 acres, located immediately to the south of the Rolles’ property, on February 1, 2017. Upon completing his purchase, a survey of the land purported to show that the Rolles’ road and fence were encroaching on his property.

“Mr Meadows therefore formed the view that the area occupied by the paved roadway and fence was an encroachment on the Meadows property. At a meeting on March 3, 2017, Mr Meadows informed Mr Rolle of the survey report and of the Rolles’ encroachment on the Meadows property,” the Privy Council said.

Mr Meadows, via his attorney, wrote to the couple on May 16, 2017, demanding that they remove the road and fence within 14 days or, alternatively, rent the disputed land from him. Mr Rolle, through his own attorney, responded one week later by affirming that the disputed land was his.

With neither side backing down, Mr Meadows initiated a Supreme Court action for alleged trespass and sought an Order that the Rolles hand over possession of the disputed land. The couple, in their defence, denied that they encroached on his property and asserted that the land belonged to them.

Alternatively, they alleged that the claim was “time barred” under the Limitation Act 1995 because they had already been in “continuous adverse possession” of the disputed land for more than 12 years prior to Mr Meadows initiating legal action.

Justice Petra Hanna-Adderley, in a September 29, 2020, ruling “ordered that the Rolles deliver up vacant possession of the disputed land, demolish and remove the erections constructed thereon and restrained the Rolles from entering upon the disputed land”.

She found that the road and fence fell within Mr Meadows’ property, and that the couple had “unlawfully intruded”. The judge also rejected the adverse possession defence in finding that the Limitation Act’s “time stopped running” on March 3, 2017, when Mr Meadows first asserted ownership - not when he initiated legal action. Based on the earlier date, they were short of the 12 years by just 15 days.

However, the Court of Appeal overturned the Supreme Court verdict and upheld the adverse possession defence because “time does not stop running for the 12-year period of limitation until a writ is issued, and the meeting of March 3, 2017, could not stop time running”. As a result, the Rolles had met the 12-year adverse possession threshold set by the Limitation Act.

The Court of Appeal also found that “the restrictive covenants contained in the Rolle and Meadows conveyances did not give rise to a contractual waiver of rights accruing by adverse possession under the Limitation Act”, while the Hawksbill Creek Agreement, its associated Acts and regulations did not prevent the Limitation Act from operating and/or applying in Freeport.

Mr Meadows and his attorney, Maurice Glinton KC, argued before the Privy Council “that the effect of the Hawksbill Creek Acts and the regulations is to prevent the Rolles from relying on a defence of adverse possession under the Limitation Act.

“Counsel for Mr Meadows says, in essence, that to allow for adverse possession, applying the Limitation Act would have the effect of altering the approved lot divisions laid out by the GBPA in settled subdivisions within the Port area over which the GBPA is vested with exclusive administration and control,” the Privy Council said of Mr Glinton’s arguments.

“Put simply, counsel contends that the Limitation Act does not apply to any of the lots of land or property owned by persons within the Port area, which falls to be administered by GBPA pursuant to its Hawksbill Creek Acts and the various regulations made pursuant to those Acts.”

Mr Glinton also argued, on Mr Meadows’ behalf, that “the restrictive covenants incorporated into the Rolles and Meadows deeds of conveyance operate as a contractual waiver of a landowner’s rights vis a vis another whose land is subject the same covenants”.

“From the Hawksbill Creek Acts and regulations by which the GBPA regulates subdivisions, building standards and land use, counsel invites the Board to find that the provisions of the Limitation Act are not applicable to land within the Port area,” the Privy Council added.

However, while the Hawksbill Creek Agreement, its related Acts and regulations effectively create a special development zone, the Privy Council added: “It does not follow that such an enclave is exempt from, or not subject to, the general laws such as the Limitation Act or common law principles...

“For example, relating to adverse possession, which are applicable to the Commonwealth of the Bahamas unless this is made clear in the enactments and regulations applicable to the Port Area or such a construction arises by necessary implication.

“There are no provisions contained in the Hawksbill Creek Acts or regulations governing the Port area which either expressly or impliedly abrogate or curtail the rights of a private landowner from acquiring title to land within the Port area by adverse possession,” the Privy Council continued.

“There are no provisions, either in the Limitation Act itself or in the Hawksbill Creek Acts and regulations, which disapply or limit the operation of the Limitation Act, or which may in any way be understood as affecting the law relating to adverse possession in respect of land within the Port area. Counsel for Mr Meadows was unable to point to any such provision, or indeed to provide any justification, for such an interpretation.”

As for the restrictive covenants argument, the Privy Council found they have “nothing to do with one landowner adversely acquiring possession of the land of another”. It added: “To so construe restrictive covenants in the terms set out would turn the law relating to adverse possession on its head.

“The Board, for the reasons given, has no hesitation in rejecting Mr Meadows’ arguments on these two issues. No reason has been shown, in construing the Hawksbill Acts and regulations or the restrictive covenants contained in the deeds of conveyance, for disapplying the law relating to adverse possession or the Limitation Act.

“Lest it be misunderstood, the law relating to adverse possession and the Limitation Act apply to all land within the Port Area as they do to any other land outside the Port area within the Commonwealth of the Bahamas unless expressly or, by necessary implication, excluded.” And, in fully rejecting Mr Meadows’ appeal, the Privy Council also upheld the Rolles’ adverse possession.