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.

BY CLEMENT CHIGBO

One of the universally recognised difficulties to the common law principles of relativity has always been that claims to land are secure only to the extent that no other person can assert a better claim. This relates to primary real right [an estate in fee simple absolute in possession] in land as well as secondary or subordinate real rights in land [incorporeal hereditaments like easements, covenants etc].

If the common law were to allow prior possession as a consistent and legitimate basis to recover possession from a later possessor, then land title could become the subject of potentially indefinite or open-ended conflict. If the foregoing were to be the case, it will mean that the current possessor of land would remain constantly vulnerable to a claim advanced by some earlier possessor. It is in light of the above that the doctrines of adverse possession and prescription can be justified as being both necessary and inevitable. The restrictive principle which seeks to address the above mentioned issue operated in the context of a principle of limitation which seeks to curtail the prior possessor’s right to recover possession after some time. [See the Limitation Act 1980]. Thus, adverse possession and prescription play an important role in land law to conclusively bar all prior rights of recovery following the expiration of a legally stipulated limitation period under the Limitation Act 1980 and the Prescription Act 1832.

Hence, on a more practical note, prescription has not only had a role to play in protecting retrospective interests, but also in mediating claims for access and use between landowners and hence, its continuing relevance in the law of real property.

The continuing relevance of prescription in the law of real property was succinctly captured and encapsulated in the witty and epigrammatic summation of Lord Hoffman in R v Oxfordshire County Council; Ex parte Sunningwell Parish Council (‘Oxfordshire County Council] to the effect that “Any legal system must have rules of prescription which prevent disturbance of long-established de facto enjoyment”. Adverse possession invariably has a somewhat similar objective.

The courts in England have always had ‘a strong policy bias in favour of the legitimacy of a user which has been exercised de facto over extended periods of time. Thus, it is not surprising that for centuries, prescription has been an important basis for claiming easements and other interests in land in England.

Prescription is based on the rationale that over time a person may acquire an interest in land on the basis of de facto long continuous user.

Note however, that in registered conveyancing system modelled after the Torrens system that prescriptive easements have only a minimal role to play in such a registered system. In order to understand how prescription or adverse possession operates, one needs to understand the doctrine of tenure under English law of property which does not admit of the concept of ownership.

The doctrine of tenure — under which a person did not own the land, but held it as a tenant of the Crown or a feudal superior — has shaped English land law. Therefore, juristically speaking and in a highly technical sense, English law never employed the concept of ownership to land. Rather, for much of the history of English land law, possession and physical control of land dominated legal reasoning about title and rights to land.

All titles to land were based on possession or or what is commonly referred to as‘seisin’ — so that a person seised of land prevailed against all others who could not show a better right to seisin.

Title was relative and can never be indefeasible. For instance, in an action to recover land, it was not necessary for the defendant (or plaintiff) to prove absolute title. The issue was whether the defendant could establish an earlier and better seisin. It has been variously argued that title was also defeasible because even if seisin was wrongfully taken by a disseisor, they had good title against all except the disseisee and their successors in title.

Thus, it is trite beyond any doubt that exclusive possession de jure or de facto, now or in the future, is the bedrock of English law of real property law.

Note that under English law, a person did not simply acquire an interest in land because of their use of that land. Rather, after a lapse of time, the law either barred an owner from asserting an interest contrary to the claimant or it was presumed that the owner or their predecessor in title had granted the claimant a lawful title.  This is the basis of acquisition of title by prescription and adverse possession but the sharp distinction must be noted.

The former was the basis for the law of adverse possession, while the latter established the legal rationale for the law of prescription. See Limitation Act 1980 and the Precription Act 1832.

Prescription was not founded on exclusive possession, but on de facto enjoyment which fell well short of complete control. Nevertheless, prescription was based on a physical connection with the land for a significant period of time. Prescription has been defined as ‘a title acquired by use or enjoyment had during the time and in the manner fixed by law.’

A party who successfully claimed an easement by prescription not only acquired an interest which was carved out of a larger estate, but also an incorporeal right or hereditament.  Incorporeal hereditaments refer to those rights and interests that are appurtenant to or appendant to the principal right or interest in land.  In civil law countries, right to land or heritable property are classified between primary real right [ownership] and secondary or subordinate real right in land [eg servitudes or easements or real burden or covenants].

They are like pertinent of ownership of land ie those other rights that are intrinsically associated with the enjoyment and use of land. Easement or servitude remains a veritable example of these kind of rights.  They also do have the potential of third party consequences.

For instance, easement as a legal proprietary interest in the servient land which would endure in favour of successive owners of the dominant land and would bind successors in title of the servient land.  This means that easements have third party consequences as a proprietary interest as opposed to a contractual or personal interest.

The justification is the inexorable recognition that sometimes people need to use other people’s land and that it will be necessary to set down rules determining how rights are legitimately acquired. Another was that the law had to be inherently flexible. In some cases, over a long period of time, rights ought to be acquired outside the formal process.

Prescription in English law was never based solely on a long period of use, enjoyment or benefit of property, or ‘user’.

The essence of the English law was, and is, the acquiescence of the servient owner according to E H Burn who has observed:

Why should long user confer a right protected by the courts? The answer is, that if the servient owner has allowed somebody to exercise an easement over his land for a considerable period and if he has omitted to prevent such exercise when he might very well have done so, it is only reasonable to conclude that the privilege has been rightfully enjoyed, for otherwise some attempt to interfere with it would long ago have been made by any owner who possessed even a modicum of common sense.

Note further that the onus is on the claimant to prove that they acquired a prescriptive easement. They must demonstrate that the user was of right, namely that the servient owner acquiesced in the use for the period prescribed by law.

Clement Chigbo, lawyer and chartered arbitrator practices as a registered associate with the law firm of CF Butler & Associates, Nassau, The Bahamas.  He is currently a tutor and doctoral/PhD candidate at the university of Aberdeen, U.K.  Opinions, comments and criticisms and suggestions on his articles are welcome. He may be contacted at lawscholar2006@yahoo.com, clemsweiss@hotmail.com

Last week I managed to take a glimpse of the super ship “Oasis of The Seas” make its first docking in Nassau Harbor while making my way to town. While dwarfing the traditional cruise ships while managing to keep afloat at a towering 18 stories above sea level the ultra mega ton flagship of Royal Caribbean International is a marvel unto itself. I did not get the opportunity to view the docking ceremony, but surely the 5,000-plus passengers managed to get the flow of blood pumping through the veins of the Bay St. vendors and tour guides just before the Christmas rush.

Unfortunately reality takes a bold step whenever something good happens for the island home land as the country learned of the popular cruise line’s warning to its passengers concerning the criminal uprising whose vice grip steadily tightens around the neck of this island nation.

The past few months have borne witness to brazen crimes against Islands’ economical bread basket as the criminal element targeted tour groups enjoying historical sites and nature walks, causing immediate damage to the flair of the Bahamas’ global brand with eye catching testaments to the sullied proficiency of the nation’s arm of justice, put on display for the world to see. Crimes committed against tourist often leave a bad after-taste in your mouth, especially when you reside in a country where an estimated $.90 cents of $1.00 comes from the sand lined trunk pockets of the international traveler. It’s no wonder why the Bahamas Government waste no time in opposing similar warnings communicated by the US and other countries.

Compared to other Caribbean islands, crimes against tourist in The Bahamas is a rare occurrence. Ever since the country was promoted as a widely known tourist product, citizens have been literally brainwashed to treat the visitors to the island like gold, and the majority of the islands inhabitants rely on that dollar earned from the tourist and financial sectors in order to achieve their dreams. For those residents who decide to commit an act of crime against a tourist are harshly dealt with, as if those crimes held equivalent punishment as an act of murder. Unfortunately for the brazen bandits that took part in the recent tourist robberies, there is a high probability that they will stay in prison for the maximum amount of time.

It is a shame that the acts of a handful of bandits can damage the image of Bahamas tourism, but the reality is crime is everywhere and it takes place every day of our lives. Although fortunate visitors find themselves in paradise they are expected to exercise due care and caution as if they were in their own country. If you are planning to visit The Bahamas here are a few safety tips which may assist you in your travels:

• Traditionally tourist who visit New Providence tend to migrate within the Downtown, Cable Beach, and Paradise Island districts all of which are located along the Island’s northern coastline. The Paradise Island Bridge is located just 5 minutes east of downtown Nassau, and the majority of popular beaches, business, and shopping districts and are found to the north and northwest of the island. If you are unfamiliar with New Providence, make good use of this information as a reference point should you find yourself lost while venturing throughout the island.
• Always keep your baggage in view, especially at the airport, your hotel, and when getting in and out of taxis. If you travel with two or more shopping bags, tying the opening of the bags together will make it easier to carry and will make it a difficult target for thieves. When shopping always obtain a receipt for goods purchased, as the receipt can be used to exchange or refund faulty merchandise from most Bahamian stores.
• Be wary of individuals who approach you offering discount merchandise, accommodations, transport, or money exchange services as there is no immediate way of validating the authenticity of the items offered.
• Since most stores accept credit cards and almost all ATMs cater to most popular international banks, we advise that you avoid taking large amounts of cash or valuables on your vacation. Keep all valuables, especially passports in the hotel deposit box, or guest safe boxes in the hotel room.
• If you meet someone new, exercise great care and caution if you decide to invite them in your room. If you are travelling with others, ensure that you tell someone in your group and ask them to check on your upkeep via telephone or a short visit to your hotel room. If you are travelling alone you can request the same from the front desk at the hotel. Avoid taking drugs if offered by your visitor and be careful not to leave your beverage alone in his/her presence as ‘drink spiking’ is more common than most people believe.
• If you are visiting one of the Bahamian out islands be mindful of the fact that most business and shopping facilities are sparsely located. Most outer islands have one or two main highways which may run north to south and east to west along with road signs which will assist you in your journey. Therefore if you decide to rent a vehicle, make sure your gas tank is adequately filled along with a good supply of drinking water to accompany you during your travels. A map of the island will be a very helpful tool to assist you in locating the island’s supply of isolated beaches.
• In the majority of cases Bahamian residents are considered to be friendly and always ready to lend a helping hand to visitors of their island. Therefore if you are in need of help do not be afraid to ask! For emergency purposes, dail 919 for police assistance.