It is important for attorneys and conveyancers to ensure that the interest of the parties, their clients are adequately protected in real property transactions. The consequences of sloppy conveyancing are far-reaching not only in terms of financial loss to clients, but even the reputation, integrity and the competence of the attorney may suffer as well. The client who loses money owing to sloppy conveyancing on the party of his attorney feels as if the attorney has intentionally inflicted mental distress on him. Hence we ought to ensure that every procedure involved in a typical real estate transaction ranging from negotiation, drawing up of contract of sale, ensuring that meticulous and painstaking title search/investigation is conducted to ensuring that the conveyance is well prepared, property executed stamped and registered. Sloppiness has no place in real estate conveyancing.
We must state at the outset that although registration of instruments affecting land ensures that the data and terms of every document affecting land are recorded in public registers, it must be fully noted that registration does not cure any defect in any instrument, nor does it confer upon it any validity, which it would not otherwise have had. Besides, registration of a deed is not evidence of due execution. Registration does not protect against any fraud or duress that might have been used in the execution of the document later registered, nor does it take account of those questionable transactions in land, which are sometimes embodied in instruments never registered and never used in any litigation.
It should be noted nevertheless that registration has legal consequences in the sense that non-registration will produce three unpleasant effects, namely:
Non-registration may render certain documents void. Although in The Bahamas, non-registration of a conveyance does not in itself, render the transaction void, however one can extend our reason to the provisions of International Persons Land Holding Act with reference to the requirement to register the real property transaction with the Investment Board/ Ministry of Financial Service and Investment.
Non-registration of instruments affecting land may also render them inadmissible as evidence in a judicial proceeding, and
Non-registration of instruments affecting land may make them lose priority as against registered ones affecting the same land. As previously said, it should be noted that registration cannot validate what would otherwise have been invalid.
Since some instruments are void for non-registration and no instrument shall be pleaded or given in evidence in any court as affecting any land unless the same shall have been registered and since every instrument registered under the relevant statutory legislation shall, so far as it affects any land, take effect, as against other instruments affecting the same land, from the date of its registration, it simply goes to show that registration cannot be ignored, neglected or delayed. Some attorneys have often delayed the registration of conveyances and other instruments affecting property for their clients. This is risky because registration equally serves as a notice to the whole world. Non-registration can facilitate fraud by allowing a crooked person to possibly "re-sell" the property another purchaser who may register this subsequent transaction and claim to be a bonafide (innocent) purchaser (buyer) for value (who paid the price for the property) without notice (knowledge that some other person has obtained title /interest in the property).
It should also be noted that a system of registration of titles to land ensures that the title of every land/property owner is thoroughly investigated once and for all and placed on the public register, a perusal of which will give an intending purchaser all the necessary information about previous dealing in the land. We have on numerous occasions called for a comprehensive over-hauling of our land/ real property registration system in this jurisdiction in the interest of a more transparent and straightforward real estate transactions in The Bahamas. There is no doubt that this will ensure a better system of registered land conveyancing which will in turn assure the most absolute security and certainty of title, to land owners and prospective purchasers.
For those who are engaged in "quieting" other peoples property, registration of a property owner’s title may serve as an insurance against any adverse claims by others, and registration may be indispensable to the validity of all transaction relating to the land in question especially where non-Bahamians purchasers may be involved in light of the provisions of the International Persons Land Holding Act (registration with the Investment Board/Ministry of Financial Services and Investments as viewed within the above context as a form of registration) parties ought to ensure that their real property transactions are duly executed, stamped and registered.
We can boldly embark on a more organized system of land registration in The Bahamas as soon as practicable and may borrow from England. Although in England, registration of instruments was confined only to Yorkshire and Kingston – upon Hull, while under the Land Registration Act 1925, the registration of titles to land was compulsory only in the counties of London and Middlesex and the county boroughs of Eastbourne, Hastings and Corydon, although a land owner in any part of England and Wales may ask for his land to be placed on the register.
Note finally, that registration of instruments may not adequately deal with the problems of overriding interests. It will take the circumspection of a delinquent lawyer to investigate whether the property subject matter of the transaction is subject to any overriding interest and if so, to take the necessary step to adequately and effectively deal with that so that a real estate purchaser will obtain a good title and peace of mind instead of a law suit and mental distress.
Overriding interests simply refer to certain kinds of rights e.g. leases, which bind the proprietor of registered land in England even though he has no knowledge of them and no reference is made to them in the register. They include:
Easements
Leases or agreement for lease
Any public highway
Rights of every person in possession or actual occupation of land to which he/she may be entitled in right of such possession or occupation, save where enquiry is made of such person and the rights are not disclosed.
To Be Continued
Clement Chigbo, Barrister at Law practices as a Registered Associate with the Law Firm of Cassar and Co, Nortfolk House, Frederick St. Telephone: 328-4695, email: clemsweiss@hotmail.com
- Austin DWI - New York DWI