The Quieting Act of 1959 - Should it Remain or Be Abolished?

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The Quieting Act 1959: Should it remain or be abolished?

In The Bahamas many families have lived or occupied a parcel of land all of their lives and everyone in a Settlement is aware of such occupation and acknowledges such ownership. In many situations these families have occupied or been in possession of this parcel since their great grand parents, grand parents and parents and hence the terminology that we are all familiar with, "generation land". However these families will face problems should they wish to sell the parcel or try to obtain a mortgage from a local bank as they are unable to produce a document that equates to what we refer to as a good and marketable documentary title.

Several questions arise or considerations must be made: What are these persons to do? Can their situation be rectified? Can they obtain a documentary title? The answers to these questions lie within the Quieting Titles Act of 1959. An action to quiet title is a law suit brought in a court having jurisdiction over land disputes in order to establish a party's title to real property against anyone and everyone and thus "quiets" any challenges or claims to the title.

The Present Law: The Application Process

It must also be noted and appreciated here that 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 money. In addition, the Grand Bahama developers were being frustrated by defective titles to land which was wanted for development.

The Quieting Titles Act was intended to cure defects for which there was no remedy.

Sections 3 and 4 of the Quieting Titles Act provide how title to land is to be investigated prior to the issuance of the Certificate of Title.

It appears that the Act enables an occupier of land with no documentary of title above any other trespasser thus avoiding problems in the future. The application of the law therefore requires intense scrutiny by the Court of evidence of possession produced by an applicant for a Certificate of Title. In more recent years concerns have been growing for a need to amend the Act which to some appear to be used as an "Instrument of fraud". The true owner will be put to expense and 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. So the long and short term remedy is to amend the existing Act or repeal and replace it with one that takes into consideration how the Act has been abused over the past 40 years.

The following are suggested amendments of the current Act by the Hon. Paul L. Adderley and adapted by the undersigned.

1. 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.

2. In the case of claims of possession the application ought to be supported by:

(a) A plan of the land which is no more than two years old; (b) A precise description of the land together with the proper identification of boundary owners;
(c) Aerial surveys of the land over the period of occupation.
(d) An 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.

Mr. Adderley 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.

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