October 2021 | By McFalloughn Bowleg

Generational property in The Bahamas: how to acquire documentary title

In The Bahamas, “generational property” is land owned by many descendants of the original landowner. The following issues, among others, commonly arise in relation to generational property:

• there is no documentary title holder of the land;
• the land often cannot be sold;
• there is often no certainty of ownership of a particular plot, lot or tract of the land; and
• legal title to the land cannot be passed from one person to another.

With these issues in mind, how can documentary title to generational land be acquired? In short, to acquire documentary title to generational land, the applicant must do so through adverse possession.

Three elements must be present to prove adverse possession:

• the applicant must be in factual possession of the land;
• the applicant must have an intention to possess the land; and
• the applicant must be in possession of the land for a sufficient length of time.

What constitutes factual possession?

The court has held that factual possession requires exercising a sufficient degree of physical control over the land. Generally, simply fencing off the land will be indicative of factual possession, if the land is fenced to keep others off the land. (1) Additionally, building a structure or house on the land is indicative of factual possession. (See case of Paul (Re) – [1993] BHS J. No. 143.

Additionally, the person seeking to adversely possess the land must be in exclusive possession of the land and deal with the land as an occupying owner might normally be expected to do. No other person must be acting in this way.(2)

What constitutes intention to possess the land?

Once it is established that an applicant is in factual possession of the land, it must also be demonstrated that the person seeking to acquire title to the land had the intention to possess the land. The court has held that a person’s intention to exercise custody and control over land, on the person’s own behalf, and for the person’s own benefit, could constitute an “intention to possess the land”.(3)

What constitutes sufficient length of time?

Under the laws of The Bahamas, the applicant must be in factual possession of the land for a period of 12 years or more to successfully bring a claim for adverse possession.(4)

It is important to note that if land is owned by the Crown, a sufficient length of time is deemed to be 30 years if the land is not foreshore (ie, beachfront), and 60 years if the land is foreshore. However, it is unlikely that generational property would be owned by the Crown.

Quieting petition

After 12 years has elapsed, an application by petition can be made to the Supreme Court to have the title to the land investigated, determined and declared. If successful in the claim for adverse possession, the Court will grant a certificate of title with respect to the land, therefore giving the owner a documentary title.(5)

For further information on this topic please contact McFalloughn Bowleg by email (mbowleg@lennoxpaton.com) or telephone (+1 242 502 5000). 

Endnotes

(1) Boosey v Davis (1988) 55 P & CR 83.

(2) British Waterways Board v Toor [2006] EWHC 1256.

(3) J A Pye (Oxford) Ltd v Graham [2002] 3 WLR 221.

(4) See section 16 (3) of the Limitation Act, Chapter 83.

(5) Section 3 of the Quieting Titles Act, Chapter 393.