An address by the Hon. Paul L.Adderley
17th March, 2001
 

I have been asked to speak to you today about the Quieting Titles Act with particular reference to the continued usefulness of the Act in present day circumstances having regard to the original purposes for which the Act was passed 41 years ago.

By the late nineteen fifties the value of land was changing, there was increasing speculation in land, people were earning more money and banks were lending more money. In addition the Grand Bahama developers were being frustrated by defective titles to land which was wanted for development and future development.

All of these factors contributed to the need for lawyers to find an answer to what was after all the obligation of lawyers to be satisfied that they approved a good title to land for their clients. The conveyancing and Law of property Act provides that a purchaser cannot demand a title older than 30 years but there are so many defects, which would not necessarily mean that you were not the owner, which would spoil a statutory good title.

An added factor is that " At common law as applied in the Bahamas, which have not adopted he English Land Registration Act, 1925, there is no such concept as an "absolute" title. Where questions of title to land arise in litigation the court is concerned only with the relative strengths of the titles proved by the rival claimants. If party A can prove better title than party B he is entitled to succeed notwithstanding that C may have a better title than A, if C is neither a party to the action nor a person by whose authority B is in possession or occupation of the land. It follows that as against a defendant whose entry upon the land was made as a trespasser a plaintiff who can prove any documentary title to the land is entitled to recover possession of the land unless debarred under the Real Property Limitation Act by effluxion of the 12-year period of continuous and exclusive possession by the trespasser".

I refer to this because I shall come back to this which has made it possible to commit Quieting of Title fraud, which in some cases has succeeded.

But before The Quieting of Titles Act an ingenious device to get a good title where a defective title prevented completion of a conveyance or a mortgage. This remedy was not perfect but it served the purpose for a time and in some circumstances. The device involved a fictitious legal action against the Vendor recover of a sum not owed by him which he did not defend. The Plaintiff obtained Judgement in Default a Writ of Execution was taken out and the Provost Marshal levied on and sold the subject property to the Purchaser.

This solution was too fraught with obvious problems to survive for long. The Government responded with The Quieting of Titles Act which was based on a similar statute passed in Canada. My recollection is that the Bill was not seen by any relevant member of the Bar Association before it was passed by the House. It enjoyed the same success in the Legislative Council. Its intention was obvious; to provide a legal framework for curing defects in title and provide for the creation of an absolute title.

However it appears as if somebody had merely copy typed the Ontario similar legislation word for word including references to Canadian nomenclature. As soon as copies of this Bill were seen by members of the Bar (this legislation which was almost law) the then Attorney General had to be convinced that there was urgent need for the Attorney General to prevent the Governor from signing the Bill. With the help of the late Hon. Godfrey Higgs the senior lawyer in the Legislative Council the Bill was not signed.

A committee was appointed to redraft the Bill Chaired by Mr. Higgs, the late Sir Leonard Knowles, Mr. Geoffrey Johnstone and myself with some other members of the Bar. Mr. Higgs took an energetic interest in the work because he was a member of the Council at the passage, had merely asked the Attorney General if the Bill was alright who assured him it was and then voted for its passage.

That Committee met for many weeks, sometimes until twelve o’clock at night, until the Bill was redrafted and re-submitted to the Legislature and passed.

All those lawyers who participated in creating this new law in the Bahamas knew and understood that this legislation was intended to apply to the perfecting of title to land of which the owner was frustrated in dealing with it but of which he was the owner. The law was intended to cure defects for which there was no remedy.

Sections 3 and 4 of the Act provide the scheme of the legislation to be followed in having title to land investigated and declared in a Certificate of Title and read as follows:

    "3. Any person who claims to have any estate or interest in land may apply to the court to have his title to such land investigated and the nature and extent thereof determined and declared in a certificate of title to be granted by the court in accordance with the provision of this Act.

    4. Every application made under the provisions of section 3 of this Act shall be by petition in form 1 of the schedule and unless the court dispenses therewith either in whole or in part shall be supported by -

        (a) the title deeds and other evidences of title in the possession or power of the petitioner:

        (b) certified copies of all recorded documents the originals which are not in the possession or power of the petitioner;

        (c) an abstract of title signed by an attorney;

        (d) a concise statement signed by the petitioner or his attorney of such facts as are necessary to make out the title and which do not appear in the documents produced:

        (e) proof of any fact which is required to be proved in order to make out the title, and which is not established by the produced documents:

        (f) an affidavit made in accordance with the provisions of section 5 of this act:

        (g) at least two affidavits as to possession in the case of a petitioner relying on possession under the limitation Acts;

        (h) a plan of the land prepared from a survey thereof .

I believe that for the next 20 years the law in the Quieting Titles Act was used for the purposes for which it was intended. For the most part or may be even universally so Judges and Lawyers appeared to carry out the objectives of the Act faithfully.

For my part and for the next 10 years a substantial part of my practice was devoted to Quieting Title matters.

During that time I was involved in three of the more celebrated cases of the period; each of which had significant legal and social implications for the participants. Two were in Grand Bahama and one in Nassau.

What I called the Pinder’s Point Settlement Quieting in Grand Bahama ending by virtually every householder in Pinder’s Point getting title to their land and the Russell Town Quieting which went on for 57 consecutive court days, which had long term development prospects for Grand Bahama. Legally the Price Land Quieting at paradise Island provided definitive law which enabled a joint owner of land to acquire a possessory title against another owner which was an unprecedented decision in the Bahamas. This case went to the Privy Council which in upholding a judgment of Mr. Justice Scarr at the end of their decision said:

        " Their Lordships would like to express their thanks to Scarr J. for his most admirable judgment full and lucid in relation to the facts and clear and accurate as to the law". I happened to receive a copy of the Judgment of the Privy Council before the Registrar here so I told Mr. Scarr what the Privy Council had said about his Judgment. He retorted "Now we can both die happily with that seal of approval".

The Amateur draftsman who composed the terms which the Act would follow I think knew at the time that the provisions which enabled a trespasser of land with no " colour of title" which would put him slightly above the trespasser would be a source of problem in the future. To leave such an applicant out would deny a legitimate possessor although a trespasser the right to trade his land even after the end of the limitation period of the then 20 years. The application of the law therefore required intense scrutiny by the Court of evidence of possession produced by an applicant for a Certificate of Title. Coupled with the lawyer’s responsibility not to mislead the Court plus the sanctions of perjury and fraud the right to obtain a certificate based on possession of land remained in the Statute.

After the second twenty years of the act concerns have been growing for a need to amend the Act which to some appear to be being used as a "Instrument of fraud". The attempt to steal land by the fraudulent use of the act has become too common; so has its companion the use of the fraudulent possessor to deny the real owner use of his land. I know of situations which have not in the end succeeded but the true owner has been put to expense and lost much time in useless litigation only because our system is based on a jurisprudential culture which says that a potential litigant must have his day in court.

There are bound to have been cases which have succeeded where land apparently without a legal owner has gone to a fraudulent applicant for a certificate of title. The technique is very simple. You fine two unemployable drunks who swear affidavits of possession of 50 or 100 acres of land. You apply to the court for a certificate of Title. You then find two or three adverse claimants who file claims that the land is not yours but theirs. A few days before you go to court the adverse claimants withdraw their claim. You go to Court with an unopposed application and you get your certificate of Title. The same day or the following day you convey the land to a company which you have had incorporated by a relative or friend without actual knowledge of the fraud and thereby claim that purchaser is a bona fide purchaser for value. You have gotten what you set out to do. Now all of this can be set aside by the court in time; but you will see how much time and costs that will take, because at the end of the day the applicant nor other person involved cannot pay your costs. Now that is a simple case, but there are any number of variations on this theme. New Providence, Grand Bahama and Abaco have been the principal island of development and those where there are still undeveloped tracts of land which would attract the land stealers. However wherever in future there is significant development in The bahamas in our Archipelago in the future there will be land stealers to follow. So the long and short term remedy is repeal the existing Act and replace it with one that takes into consideration how the Act has been abused over the past 40 years. I do not propose to suggest to you all the matters which I think need amending but we need to strike a balance so that any new provision not put too much burden of expense on persons who may be land rich and money poor.

    1. I would suggest that a dual system be invoked in quieting applications and the procedure to be followed. There should be one system for applications and the procedure to be followed. There should be one system for applications which are intended to be for the purpose of curing defects of title only unaffected by any question of possession. There should be a second system applicable to applications based upon possession only or possession with some documentary " colour of title".

This two-tier system becomes even more important since the possessory period has been reduced from 20 to 12 years under the Limitation Act. In fact consideration ought to be given to re-amending that limitation period to 20 years particularly in this Country which has always had a tradition of emigration to the United States.

    2. In the case of claims of possession the application ought to be supported by in addition to other simple requirements

        (a) A plan of the land which is no more than two years old;

        (b) A description of the land which describes its location with greater precision together with the proper identification of boundary owners;

        (c) Aerial surveys of the land over the period of occupation together with an analysis of the occupation which is revealed in the survey. There are I believe in the department of Lands and Surveys such photographs of The Bahamas beginning in 1942; for New Providence at least every 10 years and sometimes more frequent up to date and in other Island less frequently.

        (d) In the case of a claim adverse to the Applicant that Adverse Claimant should be made to superimpose the land he claims on the Applicant's filed plan.

        (e) The identity of the last known legal owner against whom the Possessor claims.

I have merely indicated the most important amendments to the existing law which ought to go a long way to eliminating the land thieves.

However in the end the successful and honest implementation of the Act depends on the integrity of Lawyers and the vigilance of the Bench.