By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Attorneys are voicing concerns over key aspects of the Government’s proposed land reforms including how the transition to registered land is handled and the ability to handle adjudication decisions.

Gilbert Thompson, an attorney at Meridian Law Chambers, told Tribune Business yesterday that the Land Adjudication Bill had “set off alarm bells” for him because it makes no provision for aggrieved Bahamians to appeal to the London-based Privy Council, the highest court in the Bahamian judicial system.

The legislation, as drafted, only seems to make provision for appeals to the Supreme Court and Court of Appeal if there is a dispute over how ownership of a particular land parcel is determined under the Bill;s provisions. Mr Thompson also expressed concerns that the Bill’s section 28 “narrows the scope” on which persons can appeal to “points of law” or the failure to follow legally-established procedure.

This, he explained, eliminates factual errors as a ground upon which land adjudication decisions can be challenged. “It set off alarm bells right away because we’ve had decisions from the Court of Appeal that have had to be corrected by the Privy Council,” Mr Thompson told this newspaper. “How could you not have the Privy Council involved, the highest court in the land?

“That’s definitely a very important point to bring to the Bahamian people’s attention so as not to take away their rights to a full hearing.” The Land Adjudication Bill, if passed into law by Parliament in its current form, provides an adjudicator - who must be an attorney with at least seven years’ conveyancing experience - and two other persons with the authority to form an adjudication tribunal.

This tribunal will then assess and determine claims to land ownership in a particular area designated by the responsible minister. Once these claims are adjudicated, they will be entered into a Land Registry whose creation is backed by statute law, as opposed to the present system of lodging and recording conveyancing deeds in the registry of records at the Registrar General’s Department.

Mr Thompson, though, argued against limiting the grounds of appeal over an adjudication tribunal’s decision to just “points of law” and procedural errors. He argued that determining the true and correct owners of a particular land parcel is too important an issue not to allow challenges to a tribunal’s factual findings.

“If there’s a land dispute, they’ve actually narrowed the scope of an appeal,” Mr Thompson explained. “You can’t appeal on the facts; only on findings of law - no factual errors.” The Bill’s clause 28, which deals with court appeals, in section one stipulates that a land decision can only be challenged “on the ground that it is erroneous in point of law or on the ground of failure to comply with any procedural requirement of this Act”.

Confirming that his concerns have been sent to the Bahamas Bar Association, Mr Thompson added: “It’s very curious that this would even be drafted this way. I don’t understand why you would leave the Privy Council out of the appeal process and narrow the scope of an appeal because this is an issue where we want to get it right.

“Like my law partner said, they’ve narrowed the scope of the appeal. Why? Why? These are questions we have to answer.” David Morley, broker/owner of Morley Realty, told Tribune Business: “I know the attorneys have some concerns with what is being proposed but they were obviously very encouraged with moving forward with it.”

He explained that the issues revolved around the ability of attorneys to determine whether liens, judgments and other liabilities are attached to a particular land parcel or property, and how title searches and determining property ownership is to be addressed during the transition from the current system to registered land - a move that will likely take years, if not decades, to complete.

“They have some hesitancy with it,” Mr Morley explained. “When an attorney does a title search on a property, he or she has to look at the causation list for any liens or judgments against it. I know the attorneys were concerned that the causation list is not kept up to date in a timely manner. That was a big issue for them.

“The other concern I know they had was the transition period, and what takes place during the transition period. The Government and [land reform] committee anticipated a five-seven year transition. From a real estate conveyancing perspective, any transaction taking place, a lawyer has to conduct their title search.

“The challenge was, with that transition period, potentially having to do a double search and the cost of it. I know the Bar Council was having a series of meetings to work out how to charge clients. That’s a matter that could potentially cost a bit more during the transition period.” Attorneys would have to perform both the title searches they conduct now and also search in the newly-created land registry.

Andrew O’Brien, the Glinton, Sweeting & O’Brien attorney and partner, who specialises in conveyancing, said “there’s a host of issues that can cloud title” as he acknowledged that the Bar Association was looking at examples from other jurisdictions over how they handled lawyer fees during the switch to registered land.

He backed Mr Morley, adding: “I think the question that concerns attorneys with making the switch largely revolves around what effort is going to be required to make the switch. When someone registers their parcel, is the Committee going to do their own 30-year search to make the parcel is in the proper hands, has good, clean title, and no one else has a claim?

“Will they require the owner to submit that or accept someone’s conveyance as evidence of good title?” Mr O’Brien also warned that “survey issues may arise” when it comes to determining the proper boundaries for land parcels that are being entered into the land registry.

The last Ingraham administration led similar legislative reform efforts more than one decade ago to develop a three-strong package of Bills that would have overhauled the existing system.

These Bills - the Land Adjudication Bill, the Registered Land Bill and the Law of Property Bill - would have created a land registry in the Bahamas, and given commercial and residential real estate buyers greater certainty that they had good title to their properties. However, they were ultimately shelved and no one saw fit to revive them until the Davis administration.

Sharlyn Smith, senior partner at Sharon Wilson & Company, who co-chaired the land reform committee, in 2022 referenced an Inter-American Development Bank (IDB) report which “found that 15 percent of the parcels in the country were in dispute.

“This is particularly significant given the observation that, by and large, 70 percent of the land is controlled by the Government,” she said. “That leaves only 15 percent of the land, which is in private hands, not in dispute. Expressed differently, an IDB study in the early 2000s found half the land in private hands was in dispute.”