The private ownership of firearms has always maintained its place within The Bahamian culture as both a privilege and as a protectorate. For the recreational hunters, a trip to the pine forest of the outer islands in search of wild boar, raccoons, and local gaming birds will require the use of a hunting rifle, while the pump action shotgun is a common favorite amongst local business owners in the major island cities of New Providence, Abaco, and Grand Bahama where burglary, assault, and other trespasses to property and person are a rising concern, and committed by individuals who are in illegal possession of an revolver, assault rifle or other firearms prohibited by The Firearms Act.

Applying for Gun License

Regardless of its use, Bahamian law does make provision for the ownership of certain types of firearms within the Firearms Act, which can be obtained by the grant of a gun license authorized by the Commissioner of Police. Firearm license application forms can be found here , the submission of which should include the following:

• Two color passport size photographs;
• Bill of sale for both firearm and gun safe purchased by the applicant;
• Applicant’s driver’s license, Passport, and National Insurance Card;
• Non – Bahamian applicants are required to produce proof of legal status in The Bahamas (i.e. certificate of permanent residency, work permit, etc.);
• In circumstances where proof of firearm purchase cannot be obtained, a letter must be written stating where the firearm was purchased and how long the firearm was in your possession;
• Application fee of $50.00 for shotguns and $100.00 for rifles.

Although the application provides for the submission of the bill of sale for the firearm and safe, do not expect to simply purchase your weapon from the local gun shop and cart your weapon home if you are not in possession of a Gun License. If it is your first application, the firearm dealer will ask for payment of a deposit on both the firearm and a safe in order to provide a bill of sale for your gun license application. Full payment for the firearm is expected once your application has been approved, upon which you should be able to possess your new firearm.

Discretionary Thresholds

As stipulated by the Firearms Act, the Commissioner may grant a gun license to an applicant if he is satisfied on good and sufficient evidence that the applicant is a ‘fit and proper’ person. Although the Firearms Act remains silent on the factors which constitute “good and sufficient evidence,” this legislation provides that individuals of intemperate habits, of unsound mind, or of any other unfitted reasons to be entrusted with a gun will not be granted a license by the Commissioner.

Notwithstanding the discretionary power held by the Commissioner, one may expect for persons who are mentally incapacitated or applicants holding previous criminal convictions involving violent acts will not be granted a firearm license. Reports lodged by members of the community (i.e. domestic violence, assault and battery against another) or current criminal investigations involving the applicant being involved in a violent act may also hinder the individual’s application, which may result in further provision of evidence to support the applicant’s character, or the implementation of conditions on the Gun License, Special License, or Firearm Certificate at the discretion of the Commissioner. Therefore it is advised that applicants knowingly under any form of criminal investigation, subjected to a lodged criminal complaint to the police, or previously diagnosed with a mental illness, should submit character references when submitting their application.

If the Commissioner refuses to grant or renew the provision of a Gun License, Special License or Firearm Certificate and the applicant may appeal the decision of the Commissioner to the Licensing Authority who may either confirm, vary, or revoke the decision made. The decision of the Licensing Authority is final, and in accordance with the Firearms Act, may not be called in question in any court.

A Note on Revolvers, other High-Capacity Firearms, and Ammunition

Generally, only members of the Royal Bahamas Police Force and the Royal Bahamas Defense Force are allowed to carry revolvers and other types of firearms (i.e. automatic rifles, assault rifles, canons, etc.) and ammunition associated with this form of weaponry. However the Licensing Authority holds the authority to permit the use of revolvers to Bahamian residents through the provision of a Special License (for revolvers) or a Firearm Certificate (for high powered weaponry). The Licensing Authority may also vest its powers to the Commissioner of Police to grant, reject, or revoke the provision of Special Licenses or Firearm Certificates. If you plan to submit an application for a Special License or Firearm Certificate, expect to present the same documentation as required for a Gun License application.

Similar to a Gun License the Commissioner does have the authority to implement conditions on the Special License or Firearm Certificate at his discretion, nevertheless it is casually suggested that the privilege of holding a Special License or Firearm Certificate are reserved for members of the professional and political elite.  As the roaring debate on whether business and home owners should be eligible to own a hand gun continues into the unknown, it seems as if Bahamian legislation has struck a balance allowing residents to own some form of firearm for recreational or as a means of protecting themselves.

Time shares have always enjoyed a profitable niche within The Bahamas. Widely known for hosting high quality accommodations and service within its vacationing facilities, the time share business has increasingly crystallized its presence all throughout the burgeoning islands of the archipelago. The flexibility and cost effectiveness offered by time share resorts have played beneficial role in the success of its business model since its inception in the 1960s and in The Bahamas, more than 28 time-sharing projects with more than 900 time-share units and more than 48,000 unit weeks operating in the islands since establishment of the Vacationing Plan and Time-Sharing Act came into force in the year 1999. It is estimated that timeshare resorts inject about $87 million annually into the Bahamian economy, and employs in or around 1,000 persons.

Function and Powers of Time Share Regulators

Vacation and time share developments are regulated by the Bahamas Investment Authority (BIA) in which the Prime Minister sits as its Chairman. The BIA serves as both regulator and as a central advisory for persons of international community willing to invest in the designated economic areas reserved for foreign investment. In accordance with the Vacationing and Time Share Act, all persons or corporate entities engaged in constructing or developing, marketing, selling or managing a time share project in The Bahamas are required to obtain a license from the BIA. Along with the power to grant licenses for development projects, the Vacation and Time Share Act provides the BIA with the authority to conduct a number of additional functions which include:

• Implementing conditions for the grant of a license;
• Approving the transfer of  a license;
• Revoking or suspending the grant of a license;
• Determining the financial abilities of all applicants;
• Authorizing the inspection of time share facilities;
• Providing an exemption of customs duties for the construction of time share facilities;
• Impose and enforce penalties;
• Suspend licenses granted to managing agents;
• Appointing an interim managing agent for time share facilities

Pre-sale Requirements

Conditions for Grant of Approval of Time Share License

As previously mentioned those individuals involved in the construction, marketing, selling, or managing a time share development in The Bahamas are required to be licensed as a developing owner, marketing or managing agent. Licenses granted by the BIA remain in effect throughout the life of the time share project and at the discretion by the BIA. It is important to note that the time share developers should refrain from taking any action which could in any way be interpreted as advertising, marketing or selling time share interests in The Bahamas without authority approval; otherwise, it may face severe penalties under the act, including jail for the principals and substantial monetary fines.

In constructing time share facilities, the applicant must satisfy the BIA that it has the financial ability to complete the development with all of the requisites necessary for its proper operation. In addition to this obligation, the BIA will not grant a developing owner’s license unless satisfied that purchasers of the timeshare interests will have a right to occupy and use those accommodations and facilities for certain periods, not in excess of six (6) months in any year over a period of years not exceeding forty (40) years.

Generally speaking, whether the applicant wishes to construct, market, manage, or sell a time share in The Bahamas are required to satisfy the BIA that the time share development has made provision for, a summary of which can be found here .

Licensing Fees

Licensing fees currently range as follows, depending on the number of units in the timeshare project:

Developing Owner License Fees

Where project consists of:

• not more than 10 units ………………………………………………………….. $1,000.00
• more than 10 but not more than 20 units …………………………………..$2,000.00
• more than 20 but not more than 50 units …………………………………..$3,000.00
• more than 50 units …………………………………………………………………$5,000.00

Marketing Agent License Fees

Where project consists of:

• not more than 10 units …………………………………………………………….. $    500.00
• more than 10 but not more than 20 units ……………………………………..$1,000.00
• more than 20 but not more than 50 units ……………………………………. $1,500.00
• more than 50 units ………………………………………………………………………… $2,500.00

Managing Agent License Fees

Where project consists of:

• not more than 10 units ……………………………………………………………… $   25.00
• more than 10 but not more than 20 units ………………………………………$   50.00
• more than 20 but not more than 50 units ………………………………………$   75.00
• more than 50 units …………………………………………………………………….$100.00

Appointment of a Managing Entity

The Vacationing and Time Share Act provides that a managing agent must be appointed by the time share developer prior to the first sale of a time share interest., The developing owner will be considered the managing agent of the timeshare plan in the absence of an appointment or upon resignation of a managing party, unless and until it clearly provides in the public offering statement that a different party will serve in such capacity, who has acknowledged in writing that it has accepted the duties and obligations of serving as the managing agent. The developing owner will continue to be jointly and severally responsible for the obligations of the managing agent unless and/or until:

• the time share project is completely sold out;
• the developing owner no longer retains any estate, right, title or interest in or to the time share project; or
• the developing owner has voluntarily divested itself of its license.

Statutory Duties Held by the Managing Entity

The managing agent has a legal duty to manage and maintain all accommodations and facilities within the time-share project along with providing to all purchasers an itemized annual budget which includes all estimated revenues, expenses, and collecting an assessment of all common expenses held by the time share plan. The managing entity must also ensure that all books and financial records are maintained in accordance with International Accounting Standards and are made available for inspection by any purchaser or any authorized agent of such purchaser. Other statutory duties held by the managing agent include:

• scheduling occupancy of the time-share units, when purchasers are not already entitled to use specific time-share periods, so that all purchasers will be provided the use and possession of the accommodations and facilities of the time-share plan with respect to which they have purchased;
• performing any other functions and duties which are necessary and proper to maintain the accommodations or facilities as provided in the time-share plan and as advertised; and
• the managing agent shall maintain among its records and provide to the BIA upon request a complete list of the names and addresses of all purchasers and owners of time-sharing interests.

Right to Deny Delinquent Purchasers

The managing agent of any time-share plan have the statutory right to refuse the use of the time share accommodations and facilities to any delinquent purchasers (or parties claiming under the delinquent purchaser) who fail to provide payment of any assessments made by the managing agent. According to the Vacationing and Time Share Act, a purchaser is considered delinquent in the payment of a given assessment upon the expiration of sixty (60) days after the date the assessment is billed to the purchaser or sixty (60) days after the date the assessment is due.

Public Offering Statement

The act requires the developing owner to file with the Bahamas Investment Authority a public offering statement that contains all of the pertinent documents used in connection with the time share development, including all sales, marketing, and registration materials to be used in jurisdictions other than The Bahamas. The public offering statement is subject to the BIA’s approval, unless the authority provides an exemption from this requirement which can be obtained via application. The BIA may grant either a partial or complete exemption if it is satisfied that the applicant is financially sound, and that the foreign jurisdiction in which such time share project is advertised, marketed and sold, provides adequate legislative protection for time share purchasers. The BIA will require that this protection will be extended to any  purchaser who purchases their timeshare interests as a result of the marketing within the foreign jurisdiction.

The public offering statement must be given to each on-site purchaser prior to the execution of the purchaser’s contract. In applying for the approval for the grant of the time share license, the developer must file with the Bahamas Investment Authority a detailed public offering statement containing numerous disclosures regarding the timeshare development. The Vacationing and Time share Act has established a number of statutory requirements which must be included in every public offering statement, the details of which can be found here .

Time Share Agreement

The developing owner or its managing agent must apply to the registrar of vacation plans and time-sharing for the purpose of registering each purchaser’s rights in the Register of Time-Sharing Interests within sixty (60) days of execution of the purchaser’s time share agreement, and holds a duty to inform the Registrar of changes in the ownership of time share interests. The contract must be submitted and approved by the Bahamas Investment Authority, and upon its execution, the developing owner holds the obligation to provide each purchaser with a certificate or other evidence of such purchaser’s time share interest within sixty (60) days of the execution of the contract in a form approved by the BIA. Legislative commitments held by the time share developer may be delegated to management agent provided that the developing owner will remain jointly and severally liable for compliance with this requirement.

The Vacationing and Time Share Act provides an outline of conditions which must be included in a purchaser’s time share agreement including the disclosure of the purchaser’s seven-day rescission right, and any variation to the conditions of the time share agreement require the written approval of the BIA. In accordance with the Vacationing and Time Share Act each seller shall utilize and furnish each purchaser with a fully completed and executed copy of a contract pertaining to the sale which shall include the following information which can be found here .

Non-disturbance Clauses

At present, the Vacation and Time Share Act proscribes any foreclosure, exercise of power of sale, or any right or remedy under a mortgage or other debt instrument covering all or any portion of the time share project. The Act also prohibits the extinguishment or impairment of any purchaser’s interest in the time share project, regardless of whether the mortgage is given or filed for record prior to completion of any such development. If the time share developer finances the acquisition of the property on which the time share development will be located pursuant to a mortgage, or any other debt instrument encumbering the time share property, a non-disturbance clause must be included in the underlying debt instrument for the sake of protecting the interests of time share purchasers.

(To be Continued…)

Mario L. McCartney [esq.], B.A [Hons], LLB [Hons.] practices as Founder and Principal of the Chambers of LEX JUSTIS, a boutique law practice in Nassau, New Providence, The Bahamas. While presently engaged in general legal practice, Mr. McCartney’s specialty lies in debt recovery and offshore financial and corporate services, and is currently registered as a Compliance and Anti-Money Laundering Reporting Officer (CMLRO) for his Chambers. Mr. McCartney is also the present editor and main contributor of LEX JUSTIS blog site and welcomes all opinions and comments to his articles.

For further information on all legal services provided by Mr. McCartney please visit the LEX JUSTIS website @ www.lexjustis.com or email him at mmccartney@lexjustis.com, mario.l.mccartney@gmail.com.

A vacation with your closest animal friend is worth the experience and when travelling to the bustling capital or the quiet out-islands settlements of The Bahamas, timely preparation is the best approach when taking your furry friend on your island getaway. Avoiding unnecessary hiccups during your travels contributes to a great holiday, and in order to achieve this we present the short guideline below:

Applying for Import Permit

If you plan on taking your pet during your Bahamas vacation it is important that you submit an application for an import permit within a reasonable time before your planned departure date as the time for approving your application may take at least a month to process. Despite the long wait, the import permit will be valid for one year from the date of issue; therefore it is advised that you permit enough time to submit your application before your trip.  You must also present the import permit upon arrival to the designated port of entry.

Approval for the provision of an import permit is granted subject to the following conditions:

• The animal must be 6 months of age or older.

• The animal must be accompanied by a valid certificate which substantiates that it has been vaccinated against rabies within not less than 1 month and not more than 10 months prior to importation.

Completion of Form (IMP/1(B)) by Your Local Veterninarian

Upon receiving your approved import permit, you will also receive a form (IMP/1(B)) for your veterinarian to confirm the age and health of your pet. This form needs to be dated no more than forty-eight (48) hours before your arrival in The Bahamas.

Veterinary Health Certificate

Upon arriving in The Bahamas you must present your import permit along with a veterinary health certificate presented within 48 hours of arrival in the Bahamas to a licensed veterinarian for an examination. This certificate should be prepared by a licensed veterinarian from the country of origin certifying that:

• if your pet is a dog: the dog(s) has/have adequate levels of immunity conferred by being actively immunized against the following diseases: Distemper, Hepatitis, Parvovirus, Leptospirosis, Adenovirus and Coronavirus or

• If your pet is a cat: the cat(s) has/have adequate levels of immunity conferred by being actively immunized against the following diseases: Feline Leukemia, Feline Rhinotracheitis, Feline Calicivirus, Feline Panleukopenia an Feline Pneumonitis.

• The animal(s) is/are free from internal parasites as determined by a negative fecal floatation examination,

• the animal(s) is/are free from external parasites.

• the animal(s) is/are six (6) month of age or older.

• the animal(s) must be presented to a Licensed Veterinarian for examination within forty-eight (48) hours of arrival in the Commonwealth of The Bahamas.

Payment of Fees

Application forms, along with cash or international money order payment of $10.00 per animal should be sent to the Director of Agriculture at the following address:

Director of Agriculture

Department of Agriculture

Levy Building, East Bay Street

P.O. Box N-3704

Nassau, Bahamas

You may also submit an additional payment of $5.00 via cash or international money order if you wish to have your approved import permit faxed to your home or office. You can call the department at 242-325-7502 or 242-325-7509, or fax them at 242-325-3960 if you have an inquiry or if you wish to follow up on your submitted application.

Customs duty

Upon arrival to The Bahamas you may be required to pay customs duty for permanent entry of your pet. Dogs, cats, cattle and horses are $10.00 plus 1/2% of the value of the animal. Yearly fees for dog licenses in New Providence, Grand Bahamas and the family islands are: $2.00 for male or spayed female, and $6.00 for unspayed females.

Don’t forget to permit yourself enough time to submit and receive your application and to have your furry pals examined by your local veterinarian prior to your departure date. We would recommend using international money orders when submitting your application and request that the approval for your import permit to be faxed rather than receiving the document via post. Also, we would recommend making an appointment to visit one of the Bahamian veterinarian clinics prior to your departure in order to avoid any complications during your stay.

The first major international event of the New Year was devastating. Just miles north off the coast of Haiti, two ferocious earthquakes rocked the Haitian homestead destroying its infrastructure and taking the lives of many of its citizens and visitors. The impact of the natural disaster was so tremendous that even the residents of the island of Inagua, our closest island to Haiti felt the earth move from the distant tremors.

As The Bahamas stood in astonishment as word of a nationwide tsunami watch echoed over the radio waves, the mere possibility that the Bahamian national would now find themselves in the same pair of shoes as the Haitian citizen had harmoniously crept into the common state of mind. Stories of Haitians being paid in cans of soup for landscaping services and the merciless robbing of hardworking Haitian migrants that walk the streets of Nassau, not to mention the many ethnic slurs that have become a part of the local lingo are hardly anything new. For a brief moment the culprits facing the moral reprisal for inhumane and discrimination breathed a heavy sigh of relief as pictures of caved in buildings and the rubble of the nation’s presidential palace and the Haitian slums slowly streamed into the local news stations.

The announcement made by Bahamian Prime Minister of the release of Haitian immigrants held in the Detention Centre and the grant of temporary resident status is one small illustration of the global impact shown by this natural disaster. Perhaps a more significant example is the vast amount of charity displayed by various governmental, corporate, and charitable groups throughout the eastern and western hemisphere. The Bahamas is no exception as one can witness the large variety of groups on the streets, asking for donations in order to help mend the fractured city.

With the unforeseen occasion to line the pockets of opportunists who use kindness as a commercial element, ordinary wisdom begs for the exercise of vigilance for those who wish to help the nation of Haiti see their way to a better future as disastrous events tend to find their way into the hands of callous opportunist who wish to line their purses under the cloak of charity. Before trusting your hard earned wages into the hands of cunning jackals, we would advise that you take the following precautions in order to prevent your charity from going to waste:

Verify the authenticity of the organization before making a donation…

Corporate documents of the organization should be registered in the designated corporate registry of your country, and should be available for your perusal. Licenses should be available at the physical location of the charity (if you don’t have time to visit your local corporate registry) and should verify that the organization is fit for accepting charitable donations. Conducting an internet search is perhaps the most efficient way of verifying an organizations’ authenticity.

Don’t be afraid to ask questions…

Especially when corporate documents aren’t available for review. You should also inquire about how your donation will be used to assist the victims of disaster. Watch out for general responses, as charitable organizations usually send their donations to a particular group within the disaster area. It is also wise to make donations directly to known organizations rather than relying on a third party to make donations on your behalf.

Do not provide any personal or financial information…

Personal or financial information should not be required by personal who solicit charitable contributions. Such information can be used to commit identity theft.

Ask for a receipt…

Receipts are also a good way to show proof of payment, and should be requested every time you make a charitable contribution.

Be Very Skeptical…

Especially when making donations via the internet or telephone. Emails requesting charitable assistance may be spam email, and it is not wise to respond to the email, clicking on links provided within the email, or opening files attached to the email.

Report suspicious activities to your local police station…

With the large amount of con artists using the Haitian crisis as a cover for their fraudulent activities, notifying your local police station of suspicious activities will send a direct message to any other swindlers. You would also be able to claim for donations made during the fraudulent act.

Always remember that it is always good to support a charitable cause. And it is even better when you know that your money will be put to good use.

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As we made final preparations to launch our commentary on the popular Planning and Subdivision Bill, 2009, our plans were postponed by the announcement that the Bahamas Government had postpone the passing of the Bill by legislators who had been barraged by the public outcry of the country’s professional elite. Only recently it was decided that the legislature would re introduce the Bill to parliament this year, revealing the amended version for review by the public by a reasonable date.

Without a doubt you should expect to see a substantially amended version of the original Bill to be re-introduced. Should you feel uninformed about this important debate we are happy to provide an outline of the origins and present day concerns within the development of this important legislative instrument, which we hope will provide clarity and an opportunity to ‘have a say’ on the upcoming amended version:

Creating the Planning and Subdivision Bill

Land transactions in The Bahamas have always held their fair share of disputes and complaints concerning the out of date methods of transferring ownership from the hands of one party to another. The plea for the establishment of a land registration system seems to have fallen on deaf ears while the current system shows its numerous legal deficiencies almost on a daily basis. One of the more prominent deficiencies within the real estate industry Bahamas stems from the planning and approval process of subdivisions, currently governed by the Private Roads and Subdivisions Act (Ch.256) and the Private Roads and Subdivisions Act (out islands) (ch.257) both which regulate the approval of the formation and sale of subdivision lots throughout the islands of the Bahamas.

Unfortunately both Acts have suffered from the lack of enforcement for decades as the disregard contents of its legislative authority had affected the legitimacy of land transactions, and have made a significant contribution to the long standing congestion of the Bahamian commercial courts. Evidence of such circumstances are found in the matter of Oceania Heights Limited and Willard Clarke Enterprises Limited et. al (Cl 548 of 2000) which involved the sale of property prior to the provision of ‘final’ subdivision approval by the Minister, the agreement for sale involved in the conveyance of the subject property to the Defendants were held to be ‘void ab initio as being illegal’; the presiding judge emphasizing the fact that:

“…The law must remain such that the obvious wishes of the parliament are to be upheld…To enable the Defendants to succeed in what really was a scheme (once the attorney got involved) would be to defeat the very legislation itself and to make a mockery of the well intentioned acts of the parliament…”

Section 5 of the Private Roads and Subdivision (Out Islands) Act (Ch.257) was made central to the judicial reasoning of the decision held in the Oceania Heights Limited case, which bans the sale of the property within unapproved subdivisions or subdivisions provided with ‘conditional’ approval by the Minister. Nevertheless, despite the stipulations of both Subdivision Acts, a number of cases involving the sale of property within unapproved subdivisions emerged as unscrupulous developers refused to adhere to the legislation. This, along with other planning and environmental problems associated with the land development has prompted the Bahamas Government to develop the Planning and Subdivisions Bill, 2009.

Objectives of the Planning and Subdivision Bill

The main objectives and purposes of the proposed Planning and Subdivision Bill had intended to supply badly needed upgrades to existing out of date legislation which regulated land development along with eradicating a number of concerns involving the acquisition, physical development, and sale of property throughout The Bahamas. In his contribution to the Parliamentary debate on the introduction of the Bill, Minister of the Environment, the Honorable Earl D. Deveaux outlined a number of problematic concerns surrounding the country’s land development policies which over time had become a target of exploitation and deliberate ignorance. Details surrounding the problems with land acquisition, development, and sale can be found on page 7 of the Minister’s contribution to the Parliamentary debate on the Planning and Subdivision Bill (click here), as outlined below:

• The sale of lots which lacked subdivision approval;
• The failure of fulfilling obligations of property developers upon receiving approval to sell lots in order to pay for property infrastructure;
• The provision of building permits for unapproved subdivisions;
• The provision of building permits for subdivisions developed without Installed Infrastructure;
• The lack of utility services in subdivisions after development
• Inadequate subdivision fees;
• Uncompleted subdivisions and the inability to complete the development of family island subdivisions;

In reviewing the objectives of the Planning and Subdivision Bill, one can establish the intention of the Bill to involve the proper administration of subdivision development by the Town Planning Committee and Department of Physical Planning along with the protection of its purchasers and present/future residents with Bahamian subdivisions. The Bill also requires land developers to conduct Environmental Impact Assessments (EIA) prior to obtaining subdivision approval along with higher penalty fees for developers who are in breach of the new legislation.

Identifying the Problems

Like the origins of most recent legislative instruments, the Planning and Subdivision Bill is no exception to criticism and amendment. Rather than being interpreted as a failed attempt to bring structure to a troubled land development initiative it should be considered a significant attempt to modernize the administration of land development within The Bahamas and a rare attempt by the Bahamian Government to involve the local public in the development of the Bill’s regulations. In reviewing the first version of the Planning and Subdivision Bill you may find the chief problems within the first draft of the Bill to include the following:

Larger risk borne by the Developer

The most popular opinion held by critics of the Planning and Subdivision Bill is the notion that the Bill itself holds the land developer at a disadvantage. Like a prize fighter entering a boxing match with his strong arm tied behind his back, the ‘bureaucratic red tape’ comprising of added application approval processes, town meetings, and other procedural regulations impede on the financial strategies used by land developers for the proper and efficient physical development required by the Town Planning Committee. In the course of obtaining financial support from local banking and financial institutions, lengthy delays in the provision of subdivision approval can lead to unprofitable land development projects and an almost impossible fulfillment of debt.

The sale of subdivision lots within a land development have always been the appropriate method used both in financing debt and for the placement of utilities and roads within the subdivision. In its present state, the Planning and Subdivision Bill will require land developers to install utilities and services for each lot along with constructing a main road prior to the construction of building structure on the subdivision lot. And with the prohibition of any compensation for financial loss resulting from the revocation of subdivision approval, passage of the Bill provides a significant risk held by land developers.

In addition, clause 56 of the Planning and Subdivision Bill, which prohibits the sale of lots within a subdivision without receiving approval from the Town Planning Committee, may cause substantial difficulties for most land developer to see any financial benefit stemming from subdivision development.

Risk held by Financial Institutions

Financiers of land development projects may also find themselves facing significant financial risk as the Planning and Subdivision Bill allows for the imposition of charges on a subdivision development by the Town Planning Committee which, subjected to subdivision approval, may potentially surpass other bonds a land developer may have lodged in order to guarantee the installation of infrastructure within the subdivision.

This imposition may affect lenders seeking priority in making claim for assets in the event that a land developer is unable satisfy its debt as this priority will likely be held by the Bahamas Government. The ability of the Town Planning Committee to impose this charge would not only affect the country’s mortgage industry, but also the marketability of the property as purchasers will refrain from buying land to which a charge has been lodged.

Further Risk Held by the Purchaser

Land developers are not the only ones seeing an increased risk in subdivision development. As it stands, clause 70 of the Planning and Subdivision Bill may be interpreted as having the effect of dispossessing a lot owner of legal ownership of a lot of land within a subdivision where subdivision approval has been revoked.

Although there exists legal recourse in obtaining compensation for Purchasers who have been wrongly guided in purchasing property within unapproved subdivisions (i.e. in taking legal action against their legal representative and/ or Vendor) the Planning and Subdivision Bill fails to properly establish a practical remedy for those involved in “hoodwinking” the Purchaser into purchasing lots within unapproved subdivisions, nor does it provide for a Purchaser to confirm the provision of approval of a subdivision by means of an appropriate and reliable method.

Lack of Zoning By-laws and Land Use Development Policies

In normal situations legislation is drafted to supplement existing regulations in order to bring into effect its legal function, not the other way around. As suggested by most critics, the very “meat” of the Bill was found to be lacking, due to the fact that the Bill required all applications for subdivision approval to be compliant with National Land Use Development Policies and Zoning By – laws. Therefore, in order for the Bill to fulfill its purpose, the Land Use Plan and other National Land Use Development Policies must be in place.

Although it seems critical that subdivision development should be used to supplement land development policies and regulations, the details of the Subdivision Bill should not focus on land use policies that have yet to be implemented within the laws of The Bahamas.

Imposition of Increased Expense in the Sale of Land

The position of some critics to the Planning and Subdivision Bill may cause an increase of at least 30% for the cost of land within The Bahamas if passed. Although we are unable to confirm the accuracy of this increase, it is certain that lots within approved subdivisions will increase due to the realized expense suffered by the land developer in the course of subdivision development. This may be due to the overall increased level of capital required by the land developer and more stringent conditions imposed by financial institutions wishing take on increased risk in its involvement in a land development project. Such circumstances may also cause an increase in overall construction costs.

Further constituting increased land prices is the added process and procedures involved in the subdivision approval process which will cause further delay in land sales. Such circumstances may cause a significant increase in the price of subdivision lots.

By Clement Chigbo

This must be viewed in the context of the courts trying to develop and rely on various patterns of reasoning to justify the protection of long user.

These patterns were finally rationalised and the doctrine was upheld by the House of Lordsin Dalton v Angus.

Under the doctrine, a claimant may seek a prescriptive easement based on 20 years’ uninterrupted use when there is no evidence that the putative grantor was legally incompetent.  Again, this relates to rights that are legally recognised as easements and will not apply to merely access to somebody’s property if the use and enjoyment of the access does not meet the acutely defined criteria of a legal easement. As previously mentioned, easements are often defined with rigorous certainty.

The doctrine applies only in those cases where the state of affairs between the parties cannot otherwise be explained.  However, the doctrine is not displaced by evidence that in fact there had been no grant in the 20-year period.

The doctrine was (and is) a judicial fiction.

Long user in itself was not a sufficiently convincing rationale for prescriptive acquisition. As such, judges conveniently hid behind a fiction. The doctrine of lost modern grant portrays the acquiescent servient owner as the active grantor of a deed which was lost. In fact, the active player is the dominant owner, who acquires an interest through a factual connection to the land and its de facto enjoyment. The other artifice is that only retrospective conduct matters. It is true that claimants must prove that the retrospective conduct of both parties was consistent with the fiction. Yet, it is clear that in most cases dominant owners would not pursue a claim for theoretical or historical reasons only. The physical connection to the land and the subject matter of the easement will have a present, prospective and practical utility for the dominant owner. This is also part of the contiguity and propinquity requirement of a legal easement as there can be no easement in gross.

The teleological utility of the doctrine is normally deployed in legal and judicial reasoning in the circumstances where:

• express conferment was complex and expensive;
• the servient owner refused to grant a formal easement over the land, even though the dominant owner had used the land in a certain way for a considerable period of time; or
• a dominant owner could not rely on alternative bases for a claim for an easement such as necessity, common intention or the principle in Wheeldon v Burrows

Note further that a claimant may also rely on the Prescription Act 1832 — although it has been criticised for being ill and poorly drafted. The real purpose of this legislation is no doubt to prevent the defeat of claims based on immemorial user.

But note that not all easement will operate in the context of the dominant owner being able to use the land of another to make ingress and egress from and to his property. In some instances, easement may be to support another’s property eg a neighbouring property or an adjoining land. We refer to this kind of easement as negative easement.

Negative easements entitle the dominant owner to receive something from or through the servient owner’s land. Accordingly the dominant owner may seek to restrain the servient owner from freely using the servient land. One problem is that courts did not consider that such negative rights were necessarily capable of grant. Another problem is that it is not incumbent upon the dominant owner to act positively and so reveal the existence or utility of the alleged easement. Negative prescriptive easements have been described as ‘an anomaly in the law’. Therefore it has been held that the categories of negative easements by prescription ought to be closed.

But note that while it is not possible to claim a prescriptive right to air generally, it is possible to do so where the access is through a specific aperture in the dominant land or a definite channel over the servient land.

Note further that, there is an automatic natural right of support between two parcels of land.

However, where it is established that adjacent land has supported a building for 20 years and the enjoyment has been as of right then the owner of the land on which the building stands has a prescriptive right to continued support.

In addition, generally a right of support by buildings for buildings on adjacent land can only arise by prescription.

Parties claiming a prescriptive easement must demonstrate that:

• the user was ‘as of right’;
• the servient owner had knowledge, constructive knowledge, or means of knowledge, of the user;
• the servient owner acquiesced in the user;
• the user was against the fee simple owner; and
• the user was nec vi, nec clam, nec precario.

Note that nec vi, nec clam and nec precario simply means ‘not by force, nor stealth, nor licence’. It is the principle by which rights may be built up over time, principally public or rights s of way under the English law. Specifically, if a path is used – openly, not against protests, and without permission of the landowner – for an extended period (20 years) then a permanent legal right to such use is established.

It is often referred to in the context of adverse possession and other land law issues. It is also relevant to the creation of easements whereby the law ‘prescribes’ an easement in the absence of a deed. In order for the law to do so the right of way or easement needs to have been enjoyed without force, without secrecy, and without permission for a period of time, usually 20 years.

To Be Continued…

Clement Chigbo [esq], LLB [Hons], LLM [London], L.E.C, B.L, Dip.Lat, MCIarb, is a practising solicitor and a lecturer in law in UK. He is also a registered associate with Law Firm of C F Butler & Associates, Nassau, The Bahamas. Criticisms, suggestions and comments are welcome. He may be contacted at lawscholar2006@yahoo.com, clemsweiss@hotmail.com.

Also published in the Bahama Journal at :

http://www.jonesbahamas.com/news/135/ARTICLE/21015/2009-12-17.html

“For last year’s words belong to last year’s language, and next year’s words await another voice. And to make an end is to make a beginning.”

– T.S. Eliot

As 2010 begins with the traditional cold front temperatures and early morning traffic jams we are looking forward to building on last year’s achievements with more innovation and perseverance. It was always our mission to provide informative legal perspective for those interested or presently active in The Bahamas, and we will continue to find ways to spread our unique message throughout the world.  Thank you for your effortless support.

Since we started this blog site we can attest to the unique transformation this simple boutique legal practice has taken. We have taken a step away from the rest.

We wish you much success this 2010 year.

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We will be back on January 4th…

Have a great holiday

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…We are bombarded with lawyer jokes and ridicule. We laugh politely at the jokes, and, I have to confess, I have told a few myself. Don’t do it. For hundreds of years, society considered the law a noble profession, and lawyers have been the stalwarts of defending legal rights. Lawyers desegregated the schools and improved product safety.

Even the most vocal of lawyer bashers are the first to call a lawyer when they feel their rights are being trampled upon. And finally, don’t forget that the most famous lawyer bash — “[t]he first thing we do, let’s kill all the lawyers” — was actually an acknowledgement by Shakespeare in “Henry VI, Part II” that lawyers must be eliminated in order to achieve a revolution. Be proud to be a lawyer…

A word of advice by District Court Justice Randy Wilson of Harris County, Texas. Click here for the full article.

After much patience and detailed research, Richworks has provided an interesting summary of the development of 50 of the world’s most recognized trademarks which in our view demonstrate how long term corporate endurance is influenced by the entity’s ability to change with the generational era.

From reading the brief history of corporate juggernauts like Shell and Pepsi, you can see the masterminded precision by corporate executives to tie their corporate image into the mindset of their customers, while the creation of corporate logos such as Cadillac was committed under mistaken circumstances. The blog article is definitely worth the read. Click here for the full article.