By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Bahamians will never “be fully empowered” under present land law, an attorney asserted yesterday, adding that reforms now before Parliament will allow this nation to “unlock its full economic potential”.

Sharlyn Smith, who co-chaired the committee overseeing and guiding the Davis administration’s land reform drive, told Tribune Business that an “increasing number of conflicts” over property and real estate ownership will likely erupt without the planned switch to a registered land system that provides “absolute title”.

With the present paper-based deeds and searches system only able to offer “clear title” opinions, she explained that the two Bills now tabled in Parliament - the Land Adjudication Bill and Registered Land Bill - will pave the way to a quicker, efficient process for determining land ownership is more readily accessible and less accessible for all Bahamians.

Besides offering greater certainty over ownership and title, Ms Smith told this newspaper that the amendments - which she described as “absolutely transformative” and of at least equal importance with the Davis administration’s energy reforms - will modernise land administration and “bring us into line with most of the” British Commonwealth by finally concluding a reform effort that began over 60 years ago.

“Through the system of adjudication, and its accessibility, it will make the obtaining of land title more accessible for all and incredibly less expensive,” Ms Smith said of the two Bills’ goal. “The Government is providing the infrastructure and putting in place the mechanism to allow this to happen. The only such mechanism that exists now is the Quieting Titles Act, which is an incredibly expensive process.

“It’s a tremendous opportunity. It’s empowering for people. It’s an area that I’ve worked in for 20 years, and I believe better land law will allow this country to unlock its full potential, empower the people of The Bahamas and, importantly, reduce conflicts.

“Without it, I don’t think Bahamians will be fully empowered, and I don’t think there will be the economic growth we could expect with land registration. And, without it, we could expect to have an increased number of conflicts.... This is definitely a foundation for social and economic growth and empowerment of people.”

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.

The two Bills tabled by the Davis administration will thus work hand-in-hand, complementing each other to bring Bahamian land administration into the 21st century. Ms Smith described the adjudication process as “incredibly transparent”, plus accessible and relatively inexpensive to use for Bahamians from all backgrounds and income levels.

She added that this mechanism, and moving to a registered land system, will be a “big, big difference” from the present deeds-based, paper driven process for determining title and provide multiple benefits - including the ability to obtain “absolute title”.

“In an unregistered land system, we are concerned with back title deeds,” Ms Smith explained. “It’s a deeds-based system. We have to look to back title deeds to establish what we refer to as ‘clear title’. There’s no absolute title. With registered land, there’s absolute title.

“This register is maintained by the Government. There is an obligation on subsequent purchasers to register their interest in their land, and the registry records the most pertinent details with the title. We’re moving away from the need to do searches of paper deeds, and moving to a system.... a certified registration system.

“Under a system of registered land, there’s a system of title by registration as opposed to registration of title. Big, big difference. The adjudication that goes on before the land goes on the register to make sure it’s legitimate and correct,” she added.

“The Registrar General’s Department presently accepts what is presented [to the Registry of Records] and it is not vetted. The adjudication process is intended to confirm rights and interest in a parcel. Everyone will have an opportunity to have their parcel adjudicated upon, and their rights and interests determined. That process is accessible to all and is incredibly transparent.”

Ms Smith said it is for the Davis administration’s Cabinet to determine how quickly the various adjudication tribunals will be established once the two Bills become law, but pointed out that Ryan Pinder KC, the attorney general, had given every indication that the Government plans to move quickly.

“That is for the policymakers,” she added, “but the Attorney General has said there’s some impetus to this. There’s a desire to have it going soon. The Attorney General mentioned he’d like to have four parcels going as soon as possible.”

It will likely take years, if not a decade or more, for The Bahamas to complete the transition and have all land parcels and their ownership registered in the land registry. “It depends on which part, and depends on how many parcels you have going through,” Ms Smith said of reform’s likely pace.

“There are parts of The Bahamas that lend themselves more readily to it because mapping is in place. Freeport, for example, or newer subdivisions; all subdivisions, especially the newer ones. Ultimately, it depends on the amount of parcels you have up and going.”

Ms Smith acknowledged that the reforms represent “a fundamental shift” for attorneys, especially conveyancing practitioners such as herself, who have become accustomed to conducting deeds searches, pronouncing title opinions and earning fees that are typically set at around 2.5 percent of the real estate purchase price.

She added that intensive consultation had taken place with both the Bar Association and Bar Council, with those involved agreeing that the Bills pave the way “to better land law” some six decades after The Bahamas first mooted reform. “We have had studies going back over 60 years. The issues have been identified and well-documented,” Ms Smith said.

Noting that the Quieting Titles Act was passed in the 1950s to give Bahamians in “possession of land”, but without the necessary deeds, a path to obtain documentary title, Ms Smith added that a ‘white paper’ on further potential land law changes was drafted as far back as the 1960s.

And a 1984 Ministry of Housing report, produced when Hubert Ingraham was the responsible minister, said an inexpensive mechanism for establishing title to occupied land required “urgent” development and consideration. Subsequent reports have also warned that proof of land ownership, especially in the Family Islands, remains a major concern and impediment to economic development.

Ms Smith said the proposed reforms will finally enable The Bahamas to catch up with its Caribbean competitors, and other Commonwealth countries with the UK common law legal system. She added that many had used The Bahamas’ early versions of the Land Adjudication Bill and Registered Land Bill - dating from as far back as 1967 - as the basis for their own reforms.

But, while The Bahamas failed to move this legislation forward, its competitors used its own work to leapfrog and bypass this nation. The Cayman Islands and British Virgin Islands passed their reforms in 1971, after the Turks & Caicos preceded them in 1968.

“They were based on laws intended for The Bahamas,” Ms Smith said. “This really brings us into line with much of the Commonwealth full stop. It was important for it to be a priority. I’m happy the Government has made it a priority and seen it through.

“Once Bahamians have an opportunity to obtain title, they have choices. They will have choices now as to what they do with what they own, and what they are able to do. There’s access to credit. All of that goes to why I see this as empowering. The choices Bahamians will now have empowers us. The benefits can transform lives.”

Land and its ownership is an issue that will touch every Bahamian at some point in their lives. Being able to confirm they have ‘absolute title’ to real estate, and are the true owners, will give citizens an asset that they can pledge as collateral to raise financing or use to develop businesses, thus generating economic and social empowerment.

The land registry is also viewed as a tool to reduce the number of real estate-related disputes in The Bahamas. An Inter-American Development Bank (IDB) report previously found that 15 percent of the parcels in the country were in dispute.

Given that 70 percent of the land is controlled by the Government, this report implied that only 15 percent of the remaining land, and which is in private hands, was not in dispute. Expressed differently, an the IDB study in the early 2000s found half the land in private hands in The Bahamas was subject to dispute.