“Huge ‘land fraud’ threatens homes”, 8th October, 2011
“ATTORNEYS CALL FOR LAND REGISTRATION” 24th October, 2011 …….
These are headlines from recent Tribune articles dealing with problems related to real estate title in The Bahamas. Title is a much talked about but little understood topic that has profound implications for the economic and social development of many nations, none more so than The Bahamas. In 2010, Parliament proposed the Registered Land Bill, which will have a far-reaching impact upon the sale, mortgaging and development of real estate in The Bahamas. In this series ,we will offer some insight into the history of Bahamian real estate practices, title issues and problems with which many Bahamians have become all too familiar, and the implications of moving to the type of registration system that has been implemented in many jurisdictions throughout the region and around the world.
WHAT IS A TITLE (and Why Does It Matter)
Lawyers speak of good titles, bad titles, defective titles and marketable titles, yet no one has ever seen a title. A title is an abstract concept – it is not something that you can see, feel or touch, but its implications are very real. A “right” may be a term more familiar to you than the term “title”. It (a title) is a bundle of rights enjoyed by a person relative to a piece or parcel of real estate, and includes the right to possess, occupy, use, control, enjoy and dispose of it. In practical terms in modern society it is that bundle of rights which allows real estate to become an asset that may be freely traded for other assets, or monetized. It may be used as security or collateral for a mortgage by the title holder. That fungibility allows owners of real property to unlock the equity in their land and to use that equity to start businesses, finance higher education for their children or take advantage of innumerable other financial opportunities. Secure, documented and transparent title to land is key to developing and maintaining a vibrant land market that will promote the development of a stronger economy and middle class, with increased productivity, investment and Gross Domestic Product.
Title Recording and Registration Systems in The Bahamas
The laws, customs and practices in place for dealing with Conveyancing and proving title in The Bahamas are rooted in the English Common Law and statues in effect prior to 1925, as are those in most of the other Commonwealth Members in the region. The system in place today is one whereby the Registrar General is charged with the responsibility for maintaining a register intended to put members of the public on notice as to documents relating to (among other things) rights to and use of property. The Registrar maintains indices that are searchable by Grantor or Grantee name. Many other jurisdictions, however, have adopted a system of registered title in which there is a government agency charged with maintaining a Register of Titles. Titles on the Register have been adjudicated in accordance with relevant statutes and are, once adjudicated, indefeasible. In such systems searching title is a relatively simple, quick and sure exercise. The state of the title can be only as shown on the Register. Many other jurisdictions, however, have adopted a system of registered title in which there is a government agency charged with maintaining a Register of Titles that have been adjudicated in accordance with relevant statutes and which are, once adjudicated, indefeasible. In such systems searching title is a relatively simple, quick and sure exercise. The state of the title can be only as shown on the register. Modern land registration systems are in place in the U.K. and most Commonwealth countries, as well as members of the E.U. (except Greece). In the Caribbean Region, Jamaica, for example, has utilized such a system since the early Twentieth Century. More recently Belize, Anguilla & Barbuda, and Bermuda have implemented modern systems. To succeed, such a system requires a melding of enabling legislation, a practical, workable system for implementing the legislative requirements, and the expertise of professionals including attorneys, surveyors, realtors and government officials who are involved in the nuts and bolts aspects of real estate transactions.
In future articles, we will explore the issues associated with implementing a system of registered title and roles of the professions involved. We will seek input and comment from members of the Bar, Surveyors Association and Government in an effort to flesh out and examine the issues associated with this very important change to the real estate practices that have existed heretofore.
Kevin M. Brennan-President IDM
Please join the discussion.
