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As we said in this column last week that no body actually purchases a property or land since the concept of ownership does not exist under the English Real Property jurisprudence, it simply means that people can only purchase legal estate or interest in the land. Thus people are not owners of land/property but in law, owners of a legal estate or interest in land. Therefore, a purchaser of land which no doubt includes a mortgagee and lessee will ordinarily want to see proof of ownership when purchasing a property.
Since ownership of a legal estate or interest in land is transferred by a deed, hence with registered title, the seller or morgagor or lessor will show title by producing the deed which transferred the ownership to him or her, together with the deeds to the previous owner. Where the deed shows an unbroken chain of ownership for a long enough period of time sufficient to give the impression that the owner has had the title for such a long time unchallenged. It will simply mean that it is not likely that someone else can claim ownership of the estate being transferred. The rule is that the title deeds must commence with a "good root of title," which according to the Conveyancing Law and Property Act must be at least 30 years old.
Nature of title
Where title is unregistered, it must commence with a good root of title at least 30 years old. Suffice it to say that a conveyance on sale with a comprehensive description of the property is a classic root of title.
Under the Bahamian system of land titles, there is no registry of lands. Instruments are recorded based on names only. Accordingly unless the land is actively occupied or possessed by a claimant or marked in some manner connoting ownership, there is no actual notice of a claim to ownership unregistered conveyancing.
A good root of title has been defined as an instrument which:
- 1 deals with the whole of the legal and equitable estate in the property sold
- l contains a description whereby the property can be identified, and
- l shows nothing to cast any doubt on the title of the disposing parties.
The most usual root is a conveyance on sale. Note that if the conveyance to the seller is les than 30 years old, an earlier document must be found. If the property has not been sold for many years (for example, passed down by succession within the same family) the root would be much more than 30 years old. Thereafter, all the links in the chain must be examined. This process must be repeated every time the land is sold. This causes needless repetition. However, as we always advise trainee lawyers, it is always better to be repetitive than to be ambiguous. Hence it is better to err on the side of surplus than fall into ambiguity.
Moreover, there is still no guarantee that someone else may not show a better claim to the land, arguing that the current owners usurped the claimant’s right, or that there are defects in the title deed. This is why on exchange of contracts, the seller is obliged to prove to the buyer that he can convey what he has agreed to convey. However in practice, the buyer must raise requisition relating to title before exchange and even after exchange requisitions can still be raised on matters which comes to light at a later date.
In the United Kingdom, steps have been taken to simplify and facilitate conveyancing in that jurisdiction by creating a registered land system. Thus to make real property transaction easier, the Land Registration Act 1925 provided for the establishment of a system of registering of the title at Her Majesty’s Land Registry.
The register of title in the United Kingdom contains details of the land, its registered proprietor, and the charges and encumbrances which affect it. The register is conclusive, apart from overriding interests, which affect the title even though no note may be made on it. The registered system also introduced a state indemnity scheme under which compensation may be paid to a registered proprietor (particularly if a title absolute) who is deprived of his/her title. The registered system of conveyance is more efficient, effective and simplified and will put crooked and fraudulent conveyancers and persons out of business whenever the Bahamas introduced the registered system of conveyancing in this jurisdiction.
As a Property Lawyer, I have been advocating greater sanity in our Real Property conveyancing in this jurisdiction. That is also the reason why I chose this area of law for my Doctoral/Ph D Research programme. I recently submitted a thesis proposal to a leading University in the U.K to grant me approval to research this area as part of my Doctoral/Ph D. Research programme with this university. As part of my Doctoral/ Ph. D Research programme, I will be researching on "A comparative study of land Administration and Registration Laws in Australia, Canada, New Zealand, the United Kingdom and the United States of America and their suitability for adaptation for use in the Bahama Islands."
Owning to the fact that my research methodology is aiming to come up or provide an alternative or better model for land administration in The Bahamas, I am asking any person or persons in The Bahamas who might have had or encountered problems with land/real property to come an share his experience with me as this might help me in the proposed research towards finding an efficient and workable methodology for Real Property transaction in the Commonwealth of The Bahamas.
As well as know, the object of the registered system of conveyancing as introduced by the Land Registration Act 1925 in England and Wales has been to streamline and simplify the conveyancing procedure against the background that from time immemorial, real property has always been pivotal to man’s life and has always been a fertile ground for fraudulent practices. The first known legislation that sought to deal with fraudulent practices in real property conveyancing was the Statute of Frauds 1677 whose section 4 provided that all transactions involving the sale or transfer of an interest must be evidenced in writing. See also Section 40, Law of Property Act 1925 with near similar and identical provisions. With the Land Registration Act 1925, in the Y,J and by virtue of the provisions of Conveyancing and Law of Property Act, (Bahamas limiting abstraction of title to 30 years), the lengthy and sometimes tedious process of examining the seller’s title virtually disappears.
But conflict continues and persists with the principles of unregistered conveyancing, particularly in the treatment of legal third party rights, and adverse possession and no doubt the fraud-perpetration enhancing Title Quiet Act 1959, which has long since outlived its usefulness and has become anachronistic and is currently being massively used by non-Bahamians in collaboration with some Bahamians to acquire other people’s property in a blatant and unscrupulous manner. I am presently saddled with a case of a lay who lost her property to someone who does not dispute my client’s valid title and interest in the property.
Under-registered conveyancing, it will be difficult if not impossible for a person to fraudulently acquire another’s property and use the instrumentality of Title Quieting proceedings or any other means to perfect his title to a property he did not own. It is important to note that with our unregistered conveyancing as it is today, that registration of a deed is not evidence of due execution since the existence of a deed of conveyance or even a certificate of title is merely a prima facie evidence of title to the land it covers and no more. Mere registration of a deed does not and cannot validate spurious or fraudulent instrument of title. See Section 27 of the Quieting Titles Act 1959, chapter 357, Statue Laws of The Bahamas.
The same thing can be said of a transfer or grant, which in law is patently invalid and void or ineffective. That is why it cannot be over-emphasized that it is not the position of law that once a claimant produces what he claims to be an instrument of grant be it a certificate of tile or deed of conveyance that he is automatically entitled to a declaration that the property which such an instrument or certificate purports to grant or confer is his own. However the production and reliance upon such an instrument inevitably carries with it the need for the court to enquire into some or all of a number of questions, including:
- Whether the document (certificate of title or deed of conveyance) is genuine and valid?
- Whether it has been duly executed, stamped and registered?
- Whether the grantor (Vendor/seller) had the requisite capacity and authority to make the grant? (Remember the ancient Latin maxim- "nemo dat quo d non habet," i.e. you cannot give what you do not have.
- Whether the grantor had in fact what he purported to grant?
- Whether it had the effect claimed by the holders of the instrument it is in light of the above that the validity of a claim to title to land is normally ascertained by reference to the question who proved a better title to the land?
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