We Must Plug This Hole and Prevent People from Selling Property Times Over1915 02 Aug, 2012
Mr. B. Williams: A Partnership for National Unity (APNU) supports the overarching interest of this Bill and that is the mischief which it seeks to remedy. That mischief is that the law as is and as it stood for centuries empowered an owner to sell the same property many times over and, of course, on most occasions, to the detriment and suffering of people. A lot of poor people have been affected by this legislation. When I came into contact with that law, I could not imagine that it could have stood for so many hundreds of years on the record. I could not understand it and so even before my learned Friend went to the Caribbean Court of Justice (CCJ) so that he could make his inaugural appearance... [Mr. Nandlall: It was not my inaugural appearance.] I was of the view that that would have been... [Interruption] He benefitted from the experience. I was resolute in my belief that we needed legislation to correct it because in law we tend to respect longevity. Cases are hardly found where 200 years of law is overruled other than by way of legislation.
The English law is easier. If there is the situation where Mr. Nandlall wants to buy land and he sees Mr. Williams on the land already and he goes over Mr. Williams’ head and says to Mr. Harmon, and he could in fact say to Mr. Nagamootoo...and when he finishes all of this, he could still obtain a clean, indefeasible title. Something has to be wrong with that. In the law, the judges tend to alleviate such harshness and I do not know why they never attempted to do that in this particular area of the law. One can see somebody on the land and still go to purchase.
In the Region, there is a case called Kercher and Ferguson and everyone who did land law would remember that case and the justice of the case. That is why we really cannot fault the English common law because it is founded on rules of equity and fairness. That is how there is the mechanism of the equity blue-eyed boy. In other words, one could not, under English law, see Mr. Williams on the land and go and sell to Mr. Harmon and get a clean title because the law would fix that person with actual notice. But if one decides to buy the land without going to look at it, the court will fix that person with construction notice. As such, one could not escape. In other words, one had to be a bona fide purchaser of value without notice. We did not have that in Guyana and many of us tried to impose that principle in situations where we found multiple sales of the same piece of property and so the law developed that we do not have equitable interest and that was clear. It requires legislation. I do not know why Mr. Nandlall’s predecessors never passed the necessary legislation.
Mr. Speaker: The Government did not begin with Mr. Nandlall’s party.
Mr. B. Williams: No, Sir, but I am fixing Mr. Nandlall’s Government with that responsibility.
We agree that we need to remedy this mischief and pluck this lacuna in the law. I am happy that the Hon. Attorney General, Mr. Nandlall, has brought this piece of legislation. However, members of the bar are concerned; they feel that there was not sufficient consultation on the matter. They believe that it is not easy to overrule 200 to 300 years of law and that there should have been full consultation. Perhaps, what we could consider even as we agree to pass it is to send it to a special select committee and then entertain whatever memoranda and suggestions that members of the bar or other interested parties might wish to bring to bear.
I would say that APNU is in total agreement that this Bill should be passed in order to remedy this mischief where people could sell over the heads of the initial buyer’s property without... The only assistance they had was if they could prove fraud and, of course, in any law, fraud vitiates consent. So without further belabouring the point, I would like to rest at this time and say that we concur on the passage of this Bill that once one is registered in the register that would be established pursuant to this Act, the agreement of sale entered into between the transported owner and the purchaser, that would constitute notice to any other purchaser. Perhaps, we could go to the special select committee and entertain other views on the matter. I am of the strong belief that with the core issue in this matter, that is preventing multiple sales of the same property, we would not have any problem from the Bar on that score. I think members of the Bar Association need some safeguards. They do not want an encumbrance to be there indefinitely. They do not want the registered interest to take the form of an interest in the property. All those things they have raised with me and the question of what would be the nature and character when it is registered. I think those are things that we could deal with in the select committee. But as I said, we must plug this hole and prevent people from selling property times over at the expense of purchasers.
Thank you, Mr. Speaker. [Applause]
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