One of the many unique, if not archaic, circumstances surrounding land matters in the Virgin Islands is that anyone can go to the Land Registry office and file a caution on someone else’s land at any time. The person doing so is not required to show proof or evidence or anything beyond their mere say-so that something was or is amiss about the ownership of the property.
It doesn’t matter if the land has been in the same ownership for decades or if it went through the cadastral process or even if prior owners never raised an issue. The caution is automatically placed on the land and the registered landowner (no matter how long they have been the owner — years or even decades) is then prevented from doing anything at all with the land: They cannot use it as collateral, they cannot sell it, they cannot develop it, and so on.
In due time, the registrar will hold a hearing to determine whether the caution should remain or be lifted or what next. This can turn into a long, drawn-out process involving several hearings during which, if you’ve hired a lawyer, you may spend thousands of dollars.
High Court appeal
However, even if the registrar lifts the caution, having been unable to find any justification for keeping it, the landowner is not necessarily in the clear: The person who placed the caution and lost the matter at the registry stage can now proceed to take the matter to the High Court in an appeal. The landowner will then find that their costs are only now beginning, as High Court matters attract higher legal fees than those simply dealt with at the Land Registry level.
In fact, over the series of hearings that are subsequently held at the High Court, costs can run well into tens of thousands of dollars. The appellant may have no proof that anything untoward or fraudulent ever occurred in the process of obtaining the land or in its ownership, but that doesn’t matter. The case has to proceed because the appeal has been filed, and the landowner must once again pay out thousands to fend off the cautioner.
It may take a year or two for the case to wend its way to conclusion, but the conclusion, even if in the landowner’s favour, may not bring justice. Even if the cautioner’s case is eventually dismissed for lack of evidence, the landowner is still out of the tens of thousands spent on their legal fees. The landowner may have spent $50,000 or more to fend off the allegations, but they will never recover that money.
Yes, the judge may award costs, but the maximum amount available under prescribed costs is $7,500. That’s it. That’s all. The landowner may have spent tens of thousands, but what they are able to recover is a small fraction of that. Everyone knows how expensive lawyers in the VI are. $7,500 can barely cover your costs for simply instructing them! Why are the costs so low?
Trying to collect
But the injustice doesn’t necessarily end there. The person who caused you to spend all that money could simply ignore the judge’s order that they pay your costs. The landowner then has two options: They can write off the cost and simply proceed with their life (an option for the rich, perhaps), or they can spend more thousands on their lawyer to go back to the High Court and file an order for payment (another option for the rich).
In fact, neither of those choices leaves the landowner with real choice, much less justice. The landowner may be out tens of thousands over a case that had no merit, but that’s that. Like Pontius Pilate, the “justice” system washes its hands of the matter — unless, of course, said landowner is willing to fork out more money to try to recover the paltry sum awarded by the court.
In addition, though the case has been won at all levels, the caution is still not automatically lifted — not even if the Land Registry was also a defendant in the case. The landowner and/or their lawyer must write to the Land Registry and request that the caution be lifted. It’s not automatic. In other words, in everything, all of the onus and the burden is on the landowner who had previously been living in peace before the whole roogoodoo started. Surely that can’t be right. It’s almost as if the state is working with the cautioner to frustrate and bankrupt the landowner!
Our silence on such matters allows injustices to continue because we are all expected to just “suck it up.” Many people have gone through the VI courts and been awarded costs, but they’ve never gotten a cent because going back to court would simply incur further costs for which they would receive no reparations. And then we have the people who cannot afford to pay legal fees at all. They have no resources to challenge cautions. What happens to them? Do they lose their land? What happens?
Solutions
There are several things that can be done to improve all of this. For one thing, the provision allowing cautions can be abolished from whatever law created it. Other countries in the Caribbean do not have this provision. Why does the VI? Who benefits from this nuisance provision?
If, for whatever reason, legislators don’t want to get rid of this law and cut down on these cases, they can amend it to make it harder for people to simply, on a whim, place a caution on land that has belonged to someone else for decades.
For example, there could be a time limit on how long after a person acquires land that a caution can be placed. They could also require that actual proof or evidence be submitted at the time of placing the caution — and require the registrar to review its merits before placing the caution instead of doing so automatically as is the case now. Someone should not be able to place a caution based simply on a feeling or an idea or opinion. Other than the cautioners, only lawyers and their bank accounts benefit from the system as it stands now.
Costs system
With regard to the court, what is the reason for awarding costs so far below what people have actually paid out? Why can’t costs be based on people’s actual spend? Wouldn’t that be fair? Knowing that one would have to pay thousands to the other side if one’s evidence is flimsy or non-existent would reduce the number of frivolous or nonsensical cases brought before the court, thus freeing up time to spend on serious and real cases.
Isn’t this something the BVI Bar Association should lobby for? Lawyers can thus focus on cases of merit and landowners would not have to spend thousands fending off such suits. People would have the sense that the justice system serves all, without regard to wealth or status, not just those with big pockets who can afford legal representation.
Another, related, concern is the fact that the court does not make it easy for those who have been awarded costs but who have been unable to collect to go back and report this. Why should one have to spend thousands more simply to get the court to address itself to the fact that the costs it awarded are yet to be received by those to whom they were awarded?
In the United Kingdom, for example, there’s a website where people who have not been able to collect costs awarded by the court can file a claim. Simple and easy. Why is this not done in the VI (or even the rest of the Caribbean)? Instead of requiring people to spend more again in legal fees to go back to court to ask for the money that they were already awarded, why not put the process online and show some understanding of the needs of ordinary people?
These are issues affecting real people — people who are not the millionaires who our politicians are usually chasing and kowtowing before — and they are issues that need to be addressed. People should not be bankrupted or nearly bankrupted because of antiquated systems that only serve the interests of a certain few.