BAHAMAS Law and Practice Contributed by: Alistair Chisnall and Erica Paine, Graham Thompson
place will continue to govern, for many years ahead, the bulk of the real estate in The Bahamas with unreg - istered title. In addition, The Bahamas government has prepared a draft Planning and Subdivision Bill for public consul - tation, which features changes to simplify or stream - line planning and development processes under the Planning and Subdivisions Act, 2010 (which would be repealed and replaced in its entirety). It appears that the government is anticipating tabling the Bill in parliament by mid-year, although upcoming general elections are expected to disrupt the timelines and normal workflows. 2. Sale and Purchase 2.1 Categories of Property Rights Real estate can be held as freehold title absolute or leasehold. 2.2 Laws Applicable to Transfer of Title In The Bahamas, the Conveyancing and Law of Prop - erty Act, 1909, principally governs the determination of title to real property and conveyancing transactions. The title to condominium units is governed by the Law of Property and Conveyancing (Condominium) Act, 1965 (as amended). The laws applicable to transfer of title do not vary between commercial and residential properties, but certain acquisitions by non-Bahamians would require prior government approval (see 2.11 Legal Restrictions on Foreign Investors ). 2.3 Effecting Lawful and Proper Transfer of Title The transfer of title must be effected in writing and is done by deed. Electronic signatures are not permit - ted for the conveyance of real property and strict for - malities must be complied with requiring original wet signatures, notarisation and (often) further authentica - tion. Once completed, the deed must be stamped by the Department of Inland Revenue, and any applicable taxes on the transaction must be paid. Every deed must include the real property tax assessment num - ber on the front page when submitted for stamping. Any outstanding real property taxes due in respect of a property to which a deed relates must be paid cur -
rent before the deed will be processed and accepted for stamping. The deed must also be lodged for record in the Reg - istry of Records to ensure its validity and establish its priority against subsequent purchasers, encum - brances or liens. The original deed, once recorded, is returned to the purchaser for safekeeping, together with any other original deeds in the chain of title that may change hands on closing. Whilst not yet a mainstay of Bahamian conveyancing transactions, title insurance is becoming increasingly popular and more frequently relied upon (in lieu of a buyer’s or lender’s counsel carrying out due diligence on property to be acquired or mortgaged). The cus - tomary arrangement for title insurance is for a buyer or lender to be issued a commitment prior to closing, and for the actual policy to be issued once the relevant purchase or security documents have been stamped by the Public Treasury and recorded in the Registry of Records. 2.4 Real Estate Due Diligence As there is not yet a fully-fledged and operational land registry in The Bahamas to be established under the land laws for registered title, good and marketable title to land is determined by searches conducted against the names of predecessors in title and the seller in the Registry of Records, the Supreme Court Registry, the Companies Registry and the Probate Registry. Certain searches must be conducted manually, and this can have an impact on the time it takes to conclude a real estate transaction in The Bahamas. In a purchase and sale transaction, Bahamian law requires that title traces back to a “root of title” (ie, to a deed not less than 30 years old), to a “Crown Grant”, or to a Certificate of Title issued in accordance with the Quieting Titles Act, and that there be an unbro - ken chain of documentary title from such point to the seller’s ownership. During a standard purchase and sale transaction, it is usually necessary for a purchaser’s attorney to raise “requisitions” in respect of the title to a prop - erty, which can vary widely in nature, to ensure that areas of uncertainty and inconsistencies or defects
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