The various arguments presented by Arawak Homes Limited (AHL) in the - Pinewood/Nassau Village Subdivisions - to bolster its case as "the victim" are, "not as honourable as they might appear."

Truth of Pinewood 'will never, ever come to light'
By NOELLE NICOLLS
Tribune Staff Reporter
nnicolls@tribunemedia.net


THE truth of Pinewood "will never, ever" come to light, according to an informed member of the Bahamas Bar Association.

The matter is "too complex", she said, and it is impossible to piece the puzzle back together again.

The senior attorney, who wished to speak on condition of anonymity, claimed that the various arguments presented by Arawak Homes Limited (AHL) to bolster its case as "the victim" are, in her opinion, "not as honourable as they might appear."

Based on several Supreme Court rulings, all titles in the Pinewood Subdivision, and some documented as Nassau Village, deriving from John Sands, Thaddeus Johnson and Eleazor Ferguson are suspect. This has left hundreds of home owners without valid title to their land.

One of the pivotal rulings, establishing AHL's certificate of title over some 156 acres, was presided over by Senior Justice John Lyons, whose decision some in the legal profession do not agree with. Justice Lyons is a retiree, living in Australia.

Seeking compensation from the home owners, AHL is encouraging them to come in and regularise their titles. Mr Wilson said the company's policy is to "sell its interest in the land to trespassers below market value to allow them to regularise their title."

This includes land purchased by dozens of property owners from Dennis Dean, president of the Nassau Village Seabreeze Property Owners Association, or through companies such as C.B. Bahamas Ltd or Bahamas Variety.

There are several issues that complicate the matter. One is the issue of the alleged "paper subdivision" known as the "1926 Nassau Village Plan." Many of the properties with "invalid" title are documented as being in the Nassau Village Subdivision, not Pinewood Gardens 2.

The name "Pinewood" was changed to Sir Lynden Pindling Estates when acquired by AHL in 1983.

Arawak Homes claims that two plans for Nassau Village exist: one plan being the actual Nassau Village Subdivision in the Kennedy constituency and the other being a "paper subdivision" that was never approved.

This plan was designed by a Florida based firm called Yoreland Realty and contained sections of land in the Pinewood Gardens Subdivision actually owned by Arawak Homes, according to Franon Wilson, AHL president.

"The (paper subdivision) is not an accurate representation of the true Nassau Village," even though this was the plan used as the basis of the quieting actions for Mr Sands, Mr Johnson and Mr Ferguson, according to AHL.

The property Mr Sands sought to quiet was actually advertised as Nassau Village, and since the company had no interest in that area, executives claimed they did not know initially their property was being sought after.

A senior attorney, who claims to have reviewed the various plans, said the matter of the subdivisions is not so clear cut, because the plans do not "match up" when they are superimposed.

Various property owners, who believed they were in the Nassau Village Subdivision, and believed they possessed proper title, constructed homes in the middle of Sir Lynden Pindling Estates, sometimes inside thick bushy areas, prior to the area being developed by AHL.

Now that the company has reached the area, and discovered the hundreds of "trespassers," it claims: There are "more people encroaching than there is vacant land."

"The whole thing is wrought with confusion," said a senior attorney.

She speculated whether AHL would have got any public sympathy, "if they came up clean and said, 'this is the position, we are like everyone else in a financial bind, we can't afford to give these people the property on slack'."

She said the company probably "knew they would not get any public sympathy anyway", so they decided to aggressively seek compensation from "homeowners," with few financial resources to protect their interests.

"I think it is a case of money against no money. If the economy was different I think this thing would have played out differently," said the attorney.

She suggested the company's push for compensation is probably influenced by the down economy that has created cash flow and other financial challenges for many companies. Otherwise, she said the company may have acknowledged other choices, such as cutting their losses.

In her opinion it was unreasonable for AHL to seek any major compensation from home owners, even if below market value. Many of them, she said, purchased property from the John Sands certificate of title, before the title was challenged and eventually overturned.

"John Sands had a certificate of title. People didn't have to do anything and search, because a certificate of title is the highest form of title. You don't have to go further than that," said the attorney.

"You don't have to go behind the certificate ever. That is the best form of title," she said.

Short of Justice Lyons indicating in his judgment that he interviewed the various property owners, which he did not indicate, it cannot be known for certain.

Of the unfortunate situation, the attorney said it is unfair to lump everyone in the same category and assume all of the property owners had unscrupulous attorneys, because any attorney or buyer provided with proof of a certificate of title would have felt confident.

"Rightly or wrongly the suggestion is they purchased knowing that the certificate was fraudulent. Lyons ought to have made an investigation of that before he made his ruling," she said.

Based on conservative AHL rates, any settlement with the company would likely run property owners at least $50,000 or more, when it is likely the company only paid some $3,000 per lot for the disputed properties, the attorney claimed.

"They sell them for at least 30 times more than what they bought them for," she said. In her opinion "that is a little bit disingenuous."

After the mess that was created in the area over the past several decades, it is unreasonable to "financially prejudice" the property owners and slap them with huge burdens, she said.

Arawak Homes executives say they are sensitive to the fact that many people "have put a lot of money in the land"; however, they are burdened with a mortgage for land they have not been able to use for over 27 years.

Speaking on this claim, the attorney said it is doubtful that AHL is still paying off its original 1983 mortgage, granted to acquire 3,305 lots. According to her, banks do not do 30 year plus mortgages, no matter how many millions are being borrowed.

The attorney said the company's current mortgage obligations were likely based on a reorganisation of debt due for any number of reasons, such as acquisitions, expansion, restructuring or liquidity challenges.

Since the original mortgage would not have matched the value of the land, acre for acre, she said it was likely that the originally acquired property was now being leveraged for a "new debt facility."

November 12, 2010

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