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Bahama Journal: Buying Property, Quieting Title (Commonage)
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Posted by:Jan 28th 2005, 01:05:49 pm
Fig Tree News Team28th January
Quieting Titles And The Generational Property
Clement Chigbo, Bahama Journal

First and foremost, may I humbly seize this opportunity to express my deep, heartfelt and profound gratitude to readers of this column for their encouragement and support, especially in the patronage given to my newly published book, “Conveyances, Title Searches and Allied Matters.” Honestly, I am humbled and bewildered by the overwhelming response the book is currently receiving.Indeed, the book is doing exceedingly well even without formal advertising and marketing. The first edition is almost sold out.To all those who purchased this vital book and to my readers, I am eternally grateful and thankful and appreciative.I owe you three articles, which I would soon be writing. They include the post mortem of the United States, November 2004 election, year 2004 in review, and the Law Relating to the offence of rape.Be sure you read my article on rape (reader discretion is forewarned).

Today we will be dealing with real property as usual, with emphasis on generational property and quieting title.Quieting titles proceeding is a process by which a person can, by way of application or petition made before the court request that the court make a declaration by way of a grant of Certificate of Title in favour of the applicant or petitioner, which in effect legally recognizes the applicant/petitioner as the owner of the property, subject of the petition/application.

Such a Certificate of title is nevertheless only a prima-facie evidence of title notwithstanding the provisions of Section 19 of the Quieting Title Act, 1959 and taking into consideration the derogation, exception or limitation to which any certificate of title granted by the court is subject.We shall come to the appropriate and proper interpretation application, operation or construction of the provisions of the above-mentioned sections of the Quieting Title Act 1957, but let us first examine the concept of “generational property.”

The phrase or term generational property is a misnomer and the epithet “generational” ought to be replaced with “communal” or “family” or “ancestral” property; in an attempt to explain this vexed question of property holding that have posed some concerns to some families.“Generational” property would have been property owned by a long deceased ancestor who would have got or obtained crown grant many years ago, i.e. time beyond living human memory and such ancestor would have died intestate, i.e. without leaving a will and owing to lapse of time, it would have been very difficult, if not impossible for any one today to prove that he is the direct descendant of such a person from whom he can inherit the property solely to the exclusion of all others, who may equally be laying claim to the property on the basis that they themselves are equally the descendants of the long, deceased ancestor. Besides, many persons may have acquired some rights over the property by reason of long, adverse and undisturbed possession or occupation or usage of the said property in such a way that it would be unfair and inequitable to dislodge or remove them from the property.

Ordinarily when a person died intestate, subject to the new Inheritance Act, the law of intestate succession will apply, which is to the effect that the eldest son succeeds to the property of the deceased intestate person to the exclusion of all others. But the above is faulted on the basis of repugnancy rule, i.e. the eldest son of a property owner who died is expected to share the property with his lawful or legitimate brothers and sisters because the idea that he succeeds to the property alone to the exclusion of all others is repugnant to natural justice, equity and good conscience.

A particular property that is considered a generational property will invariably have many people claiming interest in the property and hence this makes it difficult for any one person to deal with or alienate the property without the concurrence or agreement of other persons having interest in the property.Although any of the descendants of the long, deceased original ancestral owner can use the land or build on the land live on the property, but none of them can alienate, sell, transfer or “mortgage” the property or use it for any of today’s secured credit transaction on the ground that the property lacks “good marketable title” in its present nature.

Ironically and quite unfortunately, persons who do not seem to have any legally recognized interest in “generational” property have profiteered from those property by using the loophole in the system to “quiet” the property and have certificate of titles granted to them and it is sad to say that some lawyers may have fraudulently aided and abetted the perpetration of those landproperty frauds – to the detriment or disadvantage of the true and actual owners of some of these generational property.

These people, seeing the nature of generational property and taking undue advantage of less privileged and uninformed persons have decided that in order to establish a title, that quieting title proceedings would be the veritable way to go and not taking into account family relationship or connection or link to the property. They may not have seen the land/property, but they are able to procure some dishonest people to swear falsely to an affidavit verifying their alleged possession of and connection to the land, but the fact remains that some of these persons cannot truthfully swear that they have been in possession of the land they are “quieting”.

Since they may not have belonged to the lineage/descendant s of the ancestors – they will ultimately disentitle the original owners when and where their fraudulent claims succeed.Actually the Quieting Title Act specifically relates to “persons in possession” and/or “persons having any estate or interest in the land.”See particularly the provisions of Section 3 and section 4 (g) of the Quieting Title Act 1959, statute laws of The Bahamas. A person who cannot establish family relationship or prove genuine, long and undisturbed possession ought not to be granted a certificate of title in Quieting Title proceedings.

Where the original crown grantee died intestate, the family could appoint representatives to decide what to do with the property and such decision will be binding on all the members and they can equally form or incorporate a company and once this is done, the company can act on behalf of the entire families having interest in the property, and the company can in turn distribute the property equitably among those duly entitled to the interest in the property.This is definitely better than allowing a number of unscrupulous clique of people, aided and abetted by some lawyers to deprive them of their ancestral birthright in a modern day civilized and democratic country like The Bahamas.

Besides, judges should insist on visiting the location where the property is situated and actually conducting a detailed, meticulous and painstaking investigation before granting certificate of title, after all that is what the Act anticipated in its provisions.Indeed, the Act was designed to give any person who did not have any document a valid and legally recognized title to the property.It is crystal clear that the provisions of section 3 is to the effect that 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 provisions of this Act.

In the course of research into real property holdings, we discovered that there was a conveyance in which a certain Christie and Stafford Sands conveyed some lands in the present-day Flamingo Gardens to the government of The Bahamas on behalf of the citizens and yet years later, some group of people were able to obtain Certificate of Title via quieting proceedings in respect of the same property.

This must be the biggest land fraud in the history of The Bahamas. Eventually the late Cecil Wallace-Whitfield, acting on behalf of the government in a suit against these land sharks succeeded in getting the Certificate of Title set aside, which compelled the land sharks to regurgitate their ill-gotten property back to the people.

Sir Leonard Knowles, then a Justice of the Supreme Court, who granted the Certificate of Title could not be blamed having acted in reliance of information, representations and affidavits presented to him by Attorneys who procured the certificate of title.We suggest that judges dealing with quieting title proceeding should go and see the land in question.After all, that is what the Act requires the judge to do as far as investigation is concerned.They ought to familiarize themselves with land.James Smith and Scarr (justices of the Supreme Courts as they then were) actually would investigate the property in dealing with quieting title matters.

While it may not be possible to trace the direct descendants – of ancestors who left the so-called generational property because of effluxion of time, nevertheless genuine evidence of actual occupation or possession would wipe out the generational aspect of the property in favour of any such person in such genuine and real occupation or possession which is equal and similar to long and undisturbed possession. Such a person can apply for Certificate of Title as being the person who is rightly and legitimately entitled to a grant of Certificate of Title and if there are no genuine or bonafide (good faith) adverse claimants the courts should grant a Certificate of Title.Note however, that advertisement in the newspaper is almost considered as a notice to the whole world.

There must be an effective way to verify the truthfulness (veracity) and authenticity of the petitioner’s claims in quieting title proceedings prior to granting a Certificate of Title.Reference is once again made to the provisions of section 15 and section 19 of the Quieting Title Act.Section 15 is to the effect any certificate of title is subject to the reservation, if any, contained in the original grant from the crown, any encumbrance, easements/public highway or right of way, right of the wife of the petitioner to dower, while Section 19 is subject to Section 27, which renders any certificate of title obtained fraudulently void, although Section 19 is also to the effect that any Certificate of Title remains conclusive as to accuracy of the content thereof and binding on the Crown and all persons whomsoever and the Certificate is also conclusive evidence that the petitioner have duly and sufficiently complied with all the requirements of the Act.

Nevertheless it must be read into the Section that a certificate of title is merely prima facie evidence of title.It is not surprising beyond any peradventure that perpetrators of this land fraud perfectly knew what they are doing, hence just like a thief is desperately desirous of disposing of stolen property, perpetrators of land fraud immediately upon obtaining the Certificate of Title – will, within the next twenty-four hours convey the land by way of sale to some people or even themselves so as to circumvent the equitable doctrine of bona fide purchaser for value without notice, i.e. which simply means that the person to whom they sell the land becomes “an innocent buyer/purchaser who has paid valuable consideration or market value of the property without notice of any defect in the title.

Hence, even if a true owner finally emerges, the purchaser is protected by the doctrine of bona fide purchaser for value without notice.It is hardly surprising why some people have said that ht law is an ass?(i.e. donkey, but not obscenity, salacity or scatology).

Editor’s Note:

Mr. Clement Chigbo has just published a book on property law title, “Conveyance, Title Searches and Allied Matters.” Please call for your copy at the law firm of Cassar & Co, Norfolk House, Frederick Street, Nassau, telephone 328-4895, at Love 97, 325-3082 or Island Bookshop at Bay Street – telephone 322-1011.(Only a few copies left)

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