THOMAS F. FERGUSON, B.SC., (UEL)
Ministry of Public Works - Nassau, Bahamas
Figure 1 The Bahamas (Adapted from Sealey & Burrows et al, 1992)
ABSTRACT
The Land Tenure System in the Bahamas is antiquated and has not evolved concurrently with the Global Trends. The origin of Bahamian Land Tenure is deeply embedded in the English Common Law system, which was imported during the colonial era. Economic prosperity, proximity to the U.S.A., and the natural beauty of the Islands are some factors, which have made an indelible mark on Bahamian Land Tenure.
Two systems of Land Tenure prevail in the Bahamas, namely Private Conveyancing and Registration of Deeds. These systems of tenure are not absolutely secure; hence, squatters may gain prescriptive rights to the exclusion of the freehold fee simple title holder. In my view, the best system of Land Tenure for the Bahamas is a Registration of Titles System. It is apparent, that the law of economics, internal and external pressure, and the need for information will speed up the establishment of compulsory Land Registration and eventually a Multi-Purpose Cadastre. It is perceived that, by the year 2000, reforms in land law and the Bahamas National Geographic Information System Project will be in effect. The complete implementation of Registration of Titles will follow closely.
LAND TENURE IN THE BAHAMAS - PROGRESSING TOWARD THE YEAR 2000
1. PREFACE
The Commonwealth of the Bahamas, a former British colony, is an Archipelagic State inclusive of 700 low lying islands and cays, close to 30 of which are inhabited. The Bahamas is a popular tourist destination, situated approximately 50 miles North-east of Cuba and 60 miles South-east of the coast of Florida, USA. The Islands comprise some 5,382 square miles of land scattered over approximately 100,000 square miles of sea. The Bahamas achieved internal self government in 1964, and independence from England on July 10th, 1973.
2. INTRODUCTION
What is Land Tenure? Land Tenure is defined as ‘the right to hold land as property, and the manner of holding it’ (Grolier 1962). There are many factors which influence Land Tenure in the Bahamas such as attitudes toward land, geography, tourism, land use, and poverty. Globally, it is accepted that the wealthy minority owns the majority of the land. In the Bahamas, this tenet has held true for both land development and ownership. The proximity of the Bahamas to the USA and its natural characteristics made an invaluable contribution to its development. History has moulded the Land Tenure System into a growing bud, anxious to flower. This paper will explore the past, present and future factors of Bahamian Land Tenure.
3. HISTORY OF BAHAMIAN LAND TENURE
3.1 The Beginning of Land Tenure
Land Tenure in the Bahamas began with the Lucayan Indians, also known as Arawak Indians. They were a trusting, peaceful people who lived in small co-operative settlements comprising 15 houses or less. They had no deeds but their claim to the land was their homes, burial grounds and subsistence farms. Even though they were primitive, they engaged in the advanced agricultural techniques of ‘shifting cultivation’ and ‘slash and burn’ to maintain the soil’s fertility.
Christopher Columbus arrived on San Salvador in the Bahama Islands in 1492 on his quest to find gold and wealth in the East Indies. The Lucayans, mistaking him for one of their Gods, welcomed him with open arms. The Bahamas changed hands immediately when Columbus claimed the Islands for the Spanish Sovereign. However, he did not stay long as the natives told him that he could find gold in Cuba. Columbus’ successors abducted the Lucayans, forcing them to look for gold on the mainland and to work plantations in neighboring Caribbean Islands. The entire Lucayan population wiped out and those who did not commit suicide to escape their fate, died from chicken pox and other diseases brought from Europe.
Even though Pope Alexander VI had granted the Bahama Islands and all land to the west of the 50ºW line of longitude to Spain (Treaty of Tordesillas, 1494, between Spain and Portugal), the Spanish did not settle the Bahamas to any large extent. The more profitable mainland and Cuba captured Spanish interest. The English attempted to assert prescriptive rights to the Islands, to the exclusion of the Spanish and their Treaty, when they claimed the Bahama Islands in 1629. Sir Robert Heath, appointed the Imperial Governor of the Bahamas in the same year by King Charles I, imported the present English Common Law, which governs Bahamian Land Tenure.
3.2 Crown Lands & Crown Lands Alienation
Theoretically, the entire Bahamas, comprising 700 islands and cays, belongs to the King & Queen of England. Thus, all subsequent titles to land are considered of a lessor interest than that of the Crown. The first substantial move towards the alienation of Crown Land occurred upon the arrival, on the island of Eluethera, of the English religious refugees (the Puritans) from Bermuda. In 1648, under the leadership of former Bermudan Governor Captain William Sayle, they persuaded the English Sovereigns to prepare a constitution and grant their servants 25 acre tracts and to grant them 300 acre tracts for £100 per tract. They successfully colonised Eluethera with their plantations and imported slave labour, but found life extremely hard. In 1660, Sayles Island, now New Providence Island, was colonised as the Puritans migrated. Life was still hard and pirating was the order of the day.
The English Pirates attacked and looted mainly Spanish ships, often loaded with wealth, on their way back to Spain. The English Authorities did little to prevent this and in some instances supported the looting and shipwrecking in the absence of treaties governing piracy. In 1670, large tracts of land were granted for £1 silver to the Lord Proprietors of North Carolina. It was intended that the Lord Proprietors would restore order to the Colony. Instead, the proprietors conspired with the pirates. The Spanish Armada, in retaliation, destroyed the settlement called Georgetown. Georgetown was rebuilt a year later by King William III, ‘William of Orange Nassau’, hence its present name Nassau.
Captain Woodes Rogers, the newly appointed governor, pioneered leasehold tenure when he leased land from the Proprietors in 1718 and financed the major reconstruction of Nassau. His funds were limited and when he re-entered England in 1722 to solicit more financing, he was thrown into debtor’s jail. He finally returned in 1729 to implement the first General Assembly and to develop Nassau, based on the Atlantic Towns design, incorporating a grid system of lots. During 1758-1768, the first swamp land reclamation occurred to the East of Nassau. Homes, built with Crown Forest timber on 120 square feet of land, were given to settlers free of charge. These incentives were given to encourage the development of Nassau.
The Bahamas remained under Loyalist control during the American Revolution (1776 - 1783), except for a period of one year in 1782, when the Islands were captured by the Spanish. Lieutenant-Colonel Andrew Deveaux restored English rule convincingly. This was needless due to the signing of the Treaty of Versailles. In the fall of 1783, another mandate for the alienation for Crown Lands was proclaimed. The defeated Loyalist refugees were offered Crown Land free of charge for the first ten (10) years. Leasehold titles of 20 acre tracts were offered to each Black or White woman, man, or child in a family, and 40 acre tracts for each head of a family at an annual rent of 2 shillings per 100 acres. The Loyalists settled primarily on San Salvador, Cat Island, Crooked Island, Long Island, Exuma, and Abaco, engaging predominantly in large cotton plantations.
In 1788, two thirds of the total population (9,300) were African slaves. Only a minority of slaves were ‘free slaves’ by the time slavery was abolished in the Bahamas in 1834. The majority did not own land or housing and they opted to continue working, under the 4 year apprenticeship programme, on the cotton plantations to provide themselves and their families a steady source of income. The third major attempt to alienate Crown Land was encountered when the colonial government imposed feudal socage, (free lay tenure), for the free slaves. The free slaves were promised an equitable size of land (5 acres), in Carmichael Village, New Providence, in exchange for work done on the road network. Many did not regularise their occupation and abandoned the Islands, seeking a better life in the USA.
The post of Surveyor General was instituted by 1846, to bolster the administration of Crown Lands under the auspices of the Colonial Governor. Subsequently, Crown Grants were re-phrased in order to convey fee simple or absolute titles. It should be noted that previously, in theory, fee simple absolute in possession titles were held only by the sovereign. The Royal Victoria Hotel, the first grand hotel, was built in 1861. In this same year the Governor was permitted to control Crown Lands and the Crown Lands Funds at his discretion. The management and administration of Crown Lands was transferred by statute to the Crown Lands Officer, who wheelded great power and sometimes impeded the Governor’s decisions.
The American Civil War (1861 - 1865) paved the way for an economic boom in the Bahamas due to the laws of supply and demand. The cost of medicine increased 10 fold and cotton increased 40 fold. Merchants, shipping supplies from North Carolina to the southern states, migrated to Nassau to live and spread some of their accrued wealth around the town. As a result, due to its desirability, land in the Bahamas became expensive. The Royal Victoria Hotel was brimming with visitors. However, the tightened blockades resulted in warehouses and shops becoming empty. The final surrender of Colonel Lee in 1865 reduced Nassau to an empty hull. His surrender coincided with the election of U.S. President Lincoln and the abolition of slavery in the U.S.A.
The administration of Crown Lands by the Crown Lands Officer ceased in 1964 with the constitutional change. Thereafter, Crown Lands were administered by the Minister responsible for Crown Lands. The Carmichael Village Act, was enacted in 1968 to adjudicate title claims of the descendants of those free slaves who remained in Carmichael Village. They farmed their land and sold their produce in Nassau. Almost 30 years later, some claims were regularised while a complete resolution is indeterminate. The Independence of the Bahamas in 1973 relegated the sovereign to a mere titular head, represented by the Governor General.
4. PRESENT SYSTEM OF TENURE
4.1 Registration of Deeds & Private Conveyancing
Some will argue that Private Conveyancing (PCV) has worked well in the Bahamas while others believe the opposite to be true. Private or notorial conveyancing permits land transfer by deed between a competent seller and a willing buyer. The Registration of Deeds (ROD), also practiced in the Bahamas, involves a general register onto which documents may be lodged for inclusion. Niether the purchaser or the seller is compelled to record their documents on this general register, which is regulated by the Registration of Records Act, Chapter 175.
The Conveyancing and Law of Property Act, Chapter 123, compels the owner to prove succession of title, or ‘root of title’, going back 30 years. A root of title traces ownership back to the original fee simple title holder, and often involves a bundle of deeds, which may become ‘tatty’, torn, and cumbersome. Documents in private conveyancing are irreplaceable. As a result, loss or theft can retard the transfer and development process. Simpson states that private conveyancing is ‘...often slow and costly, and above all it is not conclusive.’ (Simpson 1976).
Deeds registration is not curative, however, it increases security to some degree. The authenticity of Registered Deeds, which have priority over Unregistered Deeds, can only be challenged by litigation or judicial intervention. Upon satisfaction of the relevant fees, the Registrar General at the Land Registry is bound to record all documents lodged for recording and may return the document to correct mechanical errors such as signature or date omissions.
The Real Property Tax Act, Chapter 339, empowers the Valuation Section, under the auspices of the Chief Valuation Officer (CVO), to compile and maintain a tax register (roll), from legal and physical land information collected in the fields. The said data is based on the individual land parcel, which constitutes the Valuation Section’s Land Information System (LIS). In practice, this properly compiled register mirrors a standard Fiscal Cadastre, comprising about 58,900 parcels. On New Providence Island, approximately 35,300 are indexed on the 1:1200 Index Map (IM) Series by a unique parcel identification number (UPIN). The above diagram illustrates relationship of the entities in this system. In 1993, the Immovable Property (Acquisition by Foreign Persons) Act, Chapter 125, was repealed by the International Persons Land Holding Act (IPLHA). The IPLHA requires all foreign persons, buying land and fulfilling the necessary conditions, to register their property with the Bahamas Investment Authority and the Registry Department.
The Land Surveyors Act, Chapter 232, compels the Surveyor General to register land surveys, thus maintaing a Master Survey Drawing (MSD). The MSD of the Lands and Surveys Department (LSD), comprising the 1:2500 map series, is accurate and properly compiled. The LIS of the LSD is based the accurate field survey, unlike the LIS above.
4.2 Forms of Land Tenure
The central tenet of English Common Law (ECL) restricted land titles to mere tennancies. The three main forms of tenure today are: (a) freehold; (b) leasehold; and (c) customary. In the Bahamas, prior to 1846, it was impossible to convey absolute titles. Freehold Land Tenure is characterised by a deed which conveys, unto the holders, the right to use and dispose of the land as they so please. Such rights must not infringe upon the rights of other land owners. Freehold (fee simple) Land is capable of being given away or passed on to one’s heirs and successors.
The deed, commonly referred to as a ‘Title Deed’, may be a Private Deed, Registered Deed, Crown Grant or Certificate of Title (COT) granted by the Supreme Court. Generally, the title deed comprises: a schedule, describing the property; a cadastral plan, graphically representing the property boundaries; ownership details, the name and address of the seller and the buyer; and a recital, outlining the preceding documents except in the case of a Crown Grant as the Crown is the first owner. In instances of multiple ownership, freeholds can be either Joint Tennancies or Tennancies in Common.
Often, the title deed does not have an accompanying cadastral plan, prepared by a Professional Land Surveyor and recorded with the LSD. This omission has created confusion when attempting to identify the land. Where discrepancies exist, in the Bahamas, between the legal description and the plan, the current cadastral plan serves as master.
Unlike Freehold ‘Title to Land’, discussed above, Leasehold title is not as ‘free’ in that this form of title does not convey the fee simple, but right to use the land for a defined term of years. The nature of tenure and use is governed by the terms of the lease agreement (Arbitration Act, Chapter 168), renewable upon expiration. The lease document is capable of being registered, passed on to one’s heirs, and used as security for loan purposes.
Private leases can extend anywhere from 1 year to say 99 years. Crown Land Leases, on the other hand, have pre-defined terms. The Crown Leases are classified as follows: agricultural, normally for 5 - 21 years at fixed rent with the option to renew; residential, either a fixed term lease with the option to renew or 3 - 10 year conditional purchase lease-primarily for housing allotments; commercial and industrial, varies with magnitude and scope from 10 - 21 years at fixed rent with the option to renew; annual tennancy (licence of occupation), at nominal rates for impermanent rural homesteading and subsistence farming; and jetty licence, fixed rates for rights to the sea bed.
Customary Land Tenure is inconsistent with private ownership, and is defined by the communal use of land and local custom, without a physical document. This type of tenure varies from country to country and can be extremely complex. Nevertheless, the group holds the land in undivided shares. Commonage Land arose in the Bahamas in 1896, when Crown Land was made available to a contingent of 20 or more people. The Commonage Act, Chapter 142, authorises the District Commissioner to maintain a register of all descendants of a particular settlement. Those registers, regulated by Minister responsible for Crown Lands govern the rights of occupants of commonage land.
‘Generation Property’ usually evolves from privately owned land which is not administrated through the courts, by the descendants, upon death of the fee simple owner. The descendants continue to occupy the land without administration for successive deaths. Thus, identification of the legal heirs becomes extremely complicated; thus Generation Property is non-vendible. Generation Property, governed by the primogeniture principle, remains in a state of abeyance.
Another type of non-marketable land tenure is squatting, usually on generation property. Squatters and their descendants normally occupy and use the land of their choice without regard for the fee simple owner. In some instances the owner is the Crown. They acquire prescriptive rights (20 or more years occupation) to the exclusion of the fee simple owner-by petition to the Supreme Court under the Quieting of Titles Act, Chapter 357 (QTA). After the long, expensive process, the court grants the successful petitioner(s) a Certificate of Title, which sufficiently secures the fee simple interest.
4.3 Other Interests in Land
Interests in land exist other than those discussed above. Some interests may be unravelled by in depth research and analysis. Overriding Interests are of particular concern, as one’s tenure is subject to such interests, which are inextinguishable by individual land owners. An example of an overriding interest, via the Land Surveyors Act, Chapter 232, is the right of entry onto landed property for the purposes of executing a physical survey.
Other applicable rights or charges which affect the fee simple owner, were imposed as a result of the: Law of Property and Conveyancing (Condominium) Act, Chapter 124, granting rights of support and maintenance; Town Planning Act, Chapter 236, controlling use, subdivision and development of land; Acquisition of Land Act, Chapter 233, enabling compulsory acquisition of land by the government for ‘ a public purpose’; Real Property Tax Act, Chapter 339, imposing variable rates of taxation, established by mass appraisal techniques, based on property market data.
4.4 The Administration of Estates & Inheritance
There are various acts which relate to Death and the Administration of Estates, the foremost Act being Real Estate Devolution Act, Chapter 91. Once a will has been made, the disposal of the land according to the prescribed terms allows succession of tenure. Intestacy, death without a will, retards the land alienation process. The English Common Law rule of primogeniture, whereby the eldest son and legal heir of an intestate inherits his/her estate, prevails in the Bahamas. If no legal heirs can be found, the land reverts to the crown and is vested in the Treasurer under the Escheats Act, Chapter 141. In instances of Joint Tennancy, the surviving partners retain exclusive possession, while the legal heirs of Tennants in Common inherit the proportional interests in the land of their predecessor.
In the case of a man who is married under Bahamian Statute Law, his wife automatically receives a ‘dower’ (i.e. a life interest) amounting to 1/3 of his possessions. Unfortunately, for a married woman who dies intestate, her husband inherits a ‘curtesy’ (i.e. a life interest) only if the couple have children who are legally sane and can inherit the wife’s estate. Further, the unlawful children of a man cannot inherit his property if he dies intestate (based on the Primogeniture rule), even if he was their sole source of income. If at the time of intestacy the children are not old enough to administer their estate, a trustee may be appointed by the Supreme Court to administer on their behalf as prescribed by the Trustees Act, Chapter 164.
5. FACTORS AFFECTING LAND TENURE
5.1 Attitudes Toward Land
Some people regard land as something to be held onto, to pass on to one’s descendants, and subsequently hold large undeveloped acreages for speculative purposes. Others regard land as a birthright and occupy it and use it to their pleasure to the exclusion of any external or legal influences. It was often said in England and Commonwealth Countries that ‘a man’s home is his castle’ and some would protect their territory by any means necessary. Some are not interested at all.
Simpson typifies land as ‘...the source of all economic wealth’ (Simpson, 1976). A recent survey indicates that 80% of the Bahamian population believe not only that it is very important to own land, but also that the ownership of land brings wealth (Ferguson, 1997). Politics plays a central role in land tenure. The mandate of a communist government, where the state owns all land, is vastly different from that of a capitalist one, where the individual may own land. Market forces tend to dominate the latter in such countries like the USA, England, and the Bahamas.
The agendas of political parties also influence land tenure. For example, the Progressive Liberal Party (PLP), like the Labour Party in England believed in nationalisation which resulted in public ownership of major hotels in the Bahamas. On the other hand, the governing Free National Movement (FNM), similar to the British Conservative Party, favours privatisation. Thus, the majority of hotels in the Bahamas have been privatised. It is apparent, that political opinions shift and it seems as though the recently elected Labour Party, the former champion of nationalisation, is lending a keener ear to privatisation. It has been a policy to reserve Crown Land for Bahamians, with certain exceptions. Such a policy, concordant with the National Land Use Policy (NLUP), is pivotal to protect the rights of Bahamians and preserve the natural environment.
5.2 Land, Wealth and Poverty
Land and property markets have been linked to economic growth, environmental resource utilisation and social equality. It is accepted throughout most countries, that the majority of the land is owned by the wealthy minority. This trend of social inequality existed from the early years of Land Tenure (1648) when slaves, who had no abundance of money, were offered 25 acres of Crown Land at £33 per 100 acres (HALL 1993). This inequality has persisted and still exists today but has improved significantly as 48% of Bahamians own land in some form, on one or more of the Islands.
When the economy is vibrant, land and property sales follow suit. The drug era of the late 1980s and early 1990s created a false economy and property sales soared. The recession that followed in the early 1990s revealed a marked decrease. A major limiting factor for Bahamians, who want to buy or develop property, is the high cost involved in tandem with the rising cost of living and unemployment, producing bad ‘social equality soup’.
The lending policies of Private and Government financial institutions dictate to a large degree whether middle and low income Bahamians climb the social ladder through access to high quality homes and businesses. This is a direct effect of their policies for development, business and commercial loans, and residential mortgages. The government employs facilitates economic and social development through the Bahamas Mortgage Corporation (BMC), the Bahamas Development Bank (BDB), and the Bahamas Agricultural and Industrial Corporation (BAIC).
The Island of New Providence, the city of Nassau, is the focus of about 60-70% of social, economic, and infrastructural development in the Bahamas. The most wealthy in the Bahamas tend to be the foreign investors, who normally expedite their capital to purchase landed property for business ventures, involving tax concessions for a combination of hotel resorts, restaurants, casinos, night clubs, and leisure activities. These ventures, such as Sun International’s $450 Million Dollar project, may increase the employment opportunities which in turn increase the cash flow within the country, while boosting the landed property market.
For reasons previously mentioned, migration to New Providence has increased tremendously over the past 20-30 years. This, along with the continually diminishing availability of land, caused an accrual in demand for affordable housing. Thus, 19% of the population want residential land on New Providence, while 28% already own land on this island (Ferguson, 1997). The Government attempts to meet this demand by providing low-cost housing and financial assistance for persons who qualify. This effort is supplemented by private development companies and lending institutions who reasonably fulfill the large over-spill.
Due to the process of supply and demand, developers experience difficulty in locating and acquiring large tracts of land for low-cost subdivisions (of the magnitude of Pinewood Gardens, New Providence Island comprising 564.37 acres). The high infrastructure costs contribute significantly to the increased landed property costs. In a particular subdivision, for an average sized lot (100 ft. x 50 ft.), utilities may cost as much as $5,000. Charges for professional services associated with the alienation and development of land in the Bahamas are calculated on the following percentage (i.e. of the market value): Legal Fees @ 2.5%; Land Surveyor and Engineer @ 2-5%; Real Estate Agent @ 5-10%; Bank Fees @ 10-11%; Government Fees @ 2-8%; Architect @ 2-5%; and Real Property Tax (if applicable) @ 1-2%. After analysing all the expenses, the developer construes the perceived profit and distributes the cost throughout the total number of lots, which is passed on to the individual purchasers.
5.3 Security of Tenure
Individuals, farmers, investors and developers alike all want secure titles. Security exists in many forms and is described as ‘the certainty with which an interest in land is enjoyed...’(Simpson, 1954). One may feel secure in the occupation of Generation Property and continue to exercise one’s customary right to the land, even though this type of tenure has not evolved sufficiently so as to secure a mortgage or loan.
The public interest (vested in the Treasurer) is regarded as outweighing the rights of the individual to retain land in the Bahamas, thus Compulsory Acquisition by Central and Local Government has its greatest effect. The Government may acquire the fee simple interest in land anywhere in the Bahamas for public purposes, mainly infrastructure (e.g. roads and utilities) and low cost housing.
Fee simple owners prefer land which is free from disputes and litigation. PCV and ROD systems do not provide absolute finality, but favourable court judgements in disputed titles, and COTs granted under the QTA, provide a reasonable degree of security. Furthermore, the COT holders can ‘take it to the bank’ on its own merit. The diagram above illustrates the imbalance between court judgements and the number of applications-on average, only about 20-25% of all filed quieting disputes end in a final court decision. It appears, from the diagram, that there were increase in the number of filed applications over the 7 periods 1961-1963, 1965-1967, 1981-1984, 1985-1988, 1990-1992, 1993-1994 and again in 1997. These increases may be linked to increased capital injection for infrastructural development prior to Bahamian General Elections. A recent survey indicated that 53% of the Bahamian Public viewed the Land Surveyor as one who gives advice. Therefore mediation by surveyors may assist the QTA dilemma.
6. THE FUTURE OF BAHAMIAN LAND TENURE
6.1 The Economic Factor
It has been proven that the major driving force behind the Land and Property Market is, unquestionably, the law of economics (supply and demand). Economics in the Bahamas is linked to the major industries which are Tourism, Insurance, Banking, Agriculture, Light Manufacturing and Mining. Land Transfer was most volatile during increased money flow. I have no doubt, that this is a direct result of increased investment by numerous international hotel magnates, increased insurance investment, and increased private and government financing for property loans. The Land and Property Market has produced considerable wealth over the years and, in my opinion, this is likely to continue.
I believe that as we move towards the year 2000, the NLUP will assume prominence with the increasing population and demand for landed property. The increased demand for land goes hand in hand with the increased necessity for secure tenure, namely ROT. The present indicators suggest that within the next 10-15 years a reduction in the numbers of large estates will be necessary through pro-active, cautious taxation of a similar nature to England’s Capital Transfer (Death) Tax. Such a tax would no doubt spur development resulting in a greater economic yield per square foot.
6.1.3 Stringent Land Use controls coupled with government acquisitions of unproductive parcels would be consistent with the NLUP, and would ensure that the necessary building codes, legal principles, and environmental measures are enforced. The policy should safeguard the rights of poor land owners from exploitation by the Corporate ‘Goliath’. In my opinion, these factors are of utmost importance for the preservation of the land for future generations. Agriculture has not reached its maximum economic potential in the Bahamas. Thus, approximately 238,000 acres of tillage land was conveyed by the Crown to the Ministry of Agriculture-to be granted to prospective farmers. The government, under the auspices of the BDB and the BAIC, will continue to encourage diversification in the narrow based economy.
Presently, the highest demand for land is on the islands of New Providence, Grand Bahama, Eluethera, Abaco and Exuma, in that order. It is my view, that the reduced land availability would dictate a dispersal of the major business districts from the main Islands of New Providence and Grand Bahama to the other Family Islands.
6.2 Registration of Titles
Traditionally, land tenure and transfer occur within the three following Land Registration Systems: (a) Private Conveyancing (PCV) or Notorial Systems-‘the curtain principle’ transferring interests without public scrutiny or notice; (b) Registration of Deeds (ROD) and Documents-‘the mirror principle’ transferring interests publicly and ‘mechanically’ recording deeds in general register; and (c) Registration of Titles (ROT)-‘the insurance principle’ transferring interests publicly, absolutely and conclusively (Dale and McLaughlin, 1990).
ROTis the only system not in practice in the Bahamas and is the most secure, producing Indefeasible Titles. ROT is curative, concomitant with the process of adjudication, which establishes existing rights and interests in land. Adjudication can and should be implemented swiftly, inescapably, and systematically by way of Compulsory Systematic Adjudication (CSA). CSA registers all interests in land in a methodical, pro-active fashion, employing the basic tenet of Land Surveying where one works from the ‘whole to the part’. I have no doubt that systematic adjudication is more beneficial to the Bahamas, than sporadic adjudication, as the benefits of certainty, guaranteed titles, and cheaper and simplified conveyancing surpass the high costs of the initial register.
6.2.3 Globally, the trend has been for a PCV system to convert to a ROD system; the same would evolve into a ROT system or ultimately a Multi-Purpose Cadastre (MPC). There are many factors which influence this metamorphosis. The foremost factor extends from the need to have information. In the present ‘Information Era,’ data is required about people, products, services and land. In the Bahamas, information about the Parcel, the basic land unit, is discreetly stored. Consequently, retrieval of information about land, for the purposes of Land Management and Administration, is a tedious manual process.
Improved computer technology and electronic archival capabilities have refined the processing, storage and retrieval of land records. Desktop computers have replaced the former mainframe systems, with computer processing power at 300 MHz, Gigabytes of storage on Exerbyte tape, read/writeable 24 speed CD-ROMs, and modem data transfer rates of 56 kbs. This modern computer technology, coupled with advanced Geographical Information Systems (GIS) mapping software and accessories, will replace the antiquated manual system in the Bahamas. The proposed hardware and software configuration of the Bahamas National Geographic Information System Project (BNGISP), which is IDB funded, resembles a MPC. This proposed project would involve a series of pilot schemes for the islands of New Providence and San Salvador.
The laws regarding land tenure will be the object of much emphasis as we progress toward the Year 2000. Supportive legislation for ROT is a key factor and some reforms are necessary to the existing laws. In 1997, land use control and monitoring was scrutinised, as such, the Conservation and Protection of the Physical Landscape of the Bahamas Act, was enacted. The intention of this act is to monitor quarrying, mining and to protect certain species of trees. A new bill, governing the inheritance of property, was proposed which may become law in 1998. Another bill, to address copyright and intellectual property rights, has been recently introduced in parliament.
In my opinion, a ROT system for the Bahamas is inevitable. It is perceived that it will take 10 years to fully implement such a system. This system would employ land swapping and consolidation concepts to eradicate uneconomic sizes and interests in fragmented agricultural land; for optimal land utilisation. Disputes would be minimised and the state would provide marketable, guaranteed titles. In England, the General Boundary principle has apparently worked well, but in the Bahamas’ Fixed Boundary system the odd foot is a prized possession (i.e. the Australian Torrens System). I believe, that the Bahamas will see the benefit in Mediation, as England has, to alleviate overburdened court time in dealing with land disputes. Independent mediators would resolve disputes with the courts blessing and legal stamp of approval.
7. CONCLUSIONS
Land Tenure in the Bahamas has had a slow evolution. The momentum with which the current conveyancing process changes to a modern system will most likely be dictated by internal and external coercion for both accurate information and secure guaranteed titles which have been deemed ‘good against the world’. Factors such as migration, population growth, tourism, false economy, recession, government policies, taxation, private sector lending, foreign investment and cost of living, have all contributed to Land Tenure. Today, the proof of ownership can be a bundle of deeds, certificate of title, crown grant, lease or occupation of the land.
The present land laws in the Bahamas were adopted from the ECL with some amendments. Within the next 2-3 years, the BNGISP Pilot Projects should be completed and significant changes are expected in the Law of Inheritance, Copyright and the Administration of Estates. The BNGISP is anticipated to be fully operational within the next 3-5 years co-existing with ROT. It is my view, that equality of the social classes may never be fully achieved, due to the political regime of Capitalism and Market Forces. Thus, the wealthier minority will continue to own the majority of high cost land and property sites in the Bahamas. Nevertheless, a better compromise may be attained as a larger amount of government and private low cost housing options become available. It is envisaged that the NLUP would protect the environment and the poor from exploitation by the corporate ‘Goliath.’
In the Year 2000 and beyond, the transition from the present system to a modern MPC is a reality and will most likely start with the Valuation Section’s highly developed, parcel-based LIS and the Lands and Surveys’ survey-based LIS. Precise and up-to-date information, in the age of rapidly developing technology and computer information, is no longer a luxury but a necessity. GIS technology coupled with Registration of Titles to Land will revolutionise Bahamian Land Tenure. The need to regularise squatters would be a distant memory and the numerous, unresolved land disputes illustrated in figure 3, would be rare occurrences.
8. RECOMMENDATIONS
It is recommended that a ROT system be implemented to assist with the conveyancing and land tenure system in the Bahamas. Registration of all deeds and documents, onto the general register, should be mandatory and implemented systematically; thus increasing the security of tenure and maximising the system’s benefit.
It is suggested that the proposed merger of the Lands and Survey Department and the Valuation Section be executed to create the necessary environment for a MPC. This would conform to the aims and objectives of the Plan of Action, currently being prepared by Thomas Ferguson. Due to the advances in technology and communication, a physical merger of the two agencies may not be necessary in the first instance. However, the amalgamation of human resources may become inevitable.
CSA of land titles should begin, using the Valuation Section’s IM, closely correlated with the Lands and Surveys’ MSD. The Registrar General Department, currently computerising its record management facilities, would be extremely useful in the adjudication process. It would be advantageous to utilise the Valuation Section’s well-developed, partially computerised LIS, rather than attempting to re-invent the wheel. Data storage by UPINs and Parcel Codes provide the essential features of a Cadastre. Precise mapping is a necessity.
Digital Conversion and Coordination of the Valuation Section’s IM is an essential measure for the accuracy and currency of the suggested ROT. The initial field register should be compiled from the IM. All parcels must be properly coordinated for inclusion on the MSD, maintained by the Surveyor General. The MSD should continue to serve as master and computerisation of the same cannot be underscored.
It is advised, that Mediation by independent Land Professionals be adopted to assist the court in costly, lengthy land disputes. Mediation can be curative and would provide a suitable option to litigation. Professional Land Surveyors have practical experience in the land tenure system in the Bahamas and are possible candidates to act as mediators.
Finally, supportive legislation must be enacted to facilitate the seamless transfer of authority from the CVO, Ministry of Economic Development, to the Department of Lands and Surveys, Office of the Prime Minister.
9. REFERENCES
Brice, G., 1989, THE SUBSIDIARY LEGISLATION OF THE BAHAMAS 1799-1987, Revised Edition, Volumes I-VI, Exeter, Government of the Commonwealth of the Bahamas.
Dale and McLaughlin, 1990, LAND INFORMATION MANAGEMENT: AN INTRODUCTION WITH REFERENCE TO CADASTRAL PROBLEMS IN THIRD WORLD COUNTRIES, Oxford, Oxford University Press.
Ferguson, T.F., 1997, REPORT: SURVEY OF ATTITUDES TOWARD LAND AND LAND PROFESSIONALS IN THE BAHAMAS, Nassau, Thomas F. Ferguson.
Grolier Incorporated, 1962, THE AMERICAN PEOPLES ENCYCLOPEDIA, Volume 12, New York, Grolier Incorporated.
Hall, S.W., 1993, RATIONALIZATION, REGULARIZATION OF A NATIONAL LAND POLICY-REGISTRATION OF LAND TITLES: INVESTMENT INCENTIVE, Nassau, Sherlyn W. Hall.
Parr, D., 1994, GEOGRAPHIC DATA OR INFORMATION?: YOU MAKE THE CHOICE, Volume 7, Number 12, p.p. 8, New York, GIS World Inc.
Sealey and Burrows et al, N. and E.J., 1992, SCHOOL ATLAS FOR THE COMMONWEALTH OF THE BAHAMAS, London, Longman Group UK Ltd.
Simpson, S.R., 1976, LAND LAW AND REGISTRATION, Cambridge, Cambridge University Press.
Simpson, S.R., 1954, LAND TENURE: SOME EXPLANATIONS AND DEFINITIONS, London, Her Majesty’s Stationary Office.
Turnquest, T.I., 1994, CROWN LAND ADMINISTRATION IN THE BAHAMAS, Address to Commissioners’ Conference, Nassau, Tex I. Turnquest.
ACKNOWLEDGEMENTS
I wish to thank the following persons: Mr. Charles Albury, Mr. Kendal Butler, Mrs. Vera Chase, Mr. Dwight Bartlette, Mr. Bismack Coakley, Mr. Peter Cole, Mr. Kelsie Dorsette, Mr. Alron Ferguson, Mr. Miguel Ferguson, Mr Clem Foster, Mrs. Adrian Glinton, Mr. Jerome Godfrey, Mr. Kevin Hall, Mr. Sherlyn Hall, Ms Sharlene Hanna, Ms Keenya Horton, Mr. Godfrey Humes, Mr. Kino McCartney, Mr. Durant Minus, Mr. Kendal Munnings, Ms Peachet Morley, Mr. Herbert Moss, Ms Patricia Oliver, Ms Vanessa Rolle, Ms Christina Russell, Mr. Christopher Russell, Ms Kimberly Saunders, Mr. Jeff Simmons, Mr. Duke Smith, Mr. Nathan Smith, Mr. Philip Smith, Ms Sheronne Smith, Mr. Philip Sweeting, Mr. Tex Turnquest, Ms Cherfelt Wells, Ms. Lynn Williams, Mr. Franklyn Wilson, Mrs. Leona Wilson. My gratitude also extends to the following agencies: BEC, BEST, the Central Bank, Coopers and Librand, the Department of Statistics, Doctors Hospital, Finco Charlotte St., Hill York, Imperial Life Financial, Lands and Surveys, Mariott Crystal Palace, Ministry of Education, Princess Margaret Hospital, the Registrar of Insurance, Royal Bank Prince Charles, Sandilands Primary, Scotia Bay St., the Survey Section (M.O.P.W.), Sun Atlantis Resort. Further, I would like to express my appreciation for the assistance rendered by those persons who have not been named, but have contributed to this research paper.