General advice on Bahamian Legal Issues: Arbitration and ADR (Property)
Wednesday, 17 August 2011
Arbitration and ADR (Property) in The Bahamas
Arbitration
Property law goes back a long time. The- Arbitration - A means of resolving disputes using an independent arbitrator as opposed to a court of law.
- Often used for lease contract disputes, rent reviews etc.
The Courts & Property Dispute Resolution
The courts are one means of resolving disputes between individuals, companies and landlords and tenants, but they are not necessarily the most effective, particularly where the parties previously enjoyed and may well want to continue to enjoy a close working relationship.
The main problem with the court system is that it is primarily an antagonistic process: it pits one party against the other in order to determine ultimately a winner and a loser.
As a consequence the court system tends to emphasise and heighten the tension and conflict between the parties as each tries to show the other in the worst possible light, rather than trying to reach an amicable compromise.
Alternative Dispute Resolution (ADR)
The courts themselves recognise the effectiveness and increasing importance of alternative means of resolving disputes, and indeed judges will sometimes suggest this course of action prior to a court hearing.
What is Arbitration
This is a procedure where the parties to a dispute refer the issue to a third party (usually an expert in the field) for resolution rather than taking the matter to the law courts.
- The object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense.
- The parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest.
Your lease agreement may make provision for disputes arising between landlord and tenant to be dealt with by arbitration as opposed to a court of law, and usually specify how the arbitrator is to be appointed.
If one party seeks to start a court action in the face of a prior agreement to arbitration, the other party can request a stay of litigation from the court. If, on the other hand both parties opt for court action the arbitration agreement can be ignored.
There are limited rights of appeal after an arbitration decision is made and may only be allowed at the discretion of the courts on a point of law.
The court has the power to order a party to comply with an order of an arbitration tribunal.
In general the courts have no objections to individuals settling their disputes by voluntary means such as arbitration though they are careful to maintain their supervisory role.
Arbitration agreements are no different to other forms of contract and as with other forms of contract law disputes the courts will strike out any attempt to oust their ultimate jurisdiction as being against public policy.
The Advantages of Arbitration:
- Privacy - Arbitration tends to be a private procedure so outsiders do not have access to sensitive information and the parties do not have the risk of bad publicity arising from newspaper reports.
- Informality - the proceedings are much less formal that a court case and scheduling is often more flexible.
- Speed - The process is usually much quicker that a court case. However, if one party decides to challenge the decision through the courts then the process will be ultimately longer and greater in cost.
- Expertise - The person appointed is usually someone with expert knowledge of actual practise in the filed, whose decision should reflect this.
- Cost - Arbitration is usually a much cheaper process. However, the cost of expert's fees should not be underestimated.
The Advantages and Disadvantages of Arbitration
- Lower cost
- Accessible
- Expert knowledge of their particular subject
- Balance
- The no-costs rule and lack of legal aid penalize poor litigants, although they do keep costs down.
- The procedure means that if you do not know what you are doing the arbitrator will help you.
- Arbitrators’ local knowledge can be beneficial.
- They help reduce the workload of the judiciary.
- They reduce the workload of government departments.
How are Tribunals Controlled
- Judicial review
- Appeals are to the Supreme Court on points of law
This post is for your information only and nothing contained in this Memorandum is intended to constitute a legal opinion. If you require any detailed advice please contact an attorney. If you require more detailed advice you can contact EXPERIENCED BAHAMIAN ARBITRATION LAWYERS by clicking here.
Monday, 20 June 2011
Renting out your Property in The Bahamas
The key to peace of mind
Renting out your property may seem like an easy source of income, but it can be a legal minefield. If there are disagreements between you and your tenants, it can quickly become a drain on your time and resources. The best way to avoid this is to take the right legal advice at the start. Bahamian property attorneys can deal with all areas of Landlord and Tenant Law and are skilled in settling disagreements. But prevention is better than cure. Before you even look for a tenant, a Bahamian property attorney can help you decide what the terms of the tenancy will be and can build these terms into a written 'tenancy agreement' or 'lease' tailored to your needs.
Tenancy agreements
A tenancy agreement is a contract between you and your tenant. This contract can be written or verbal. In The Bahamas there is no law to say that landlords have to provide a written tenancy agreement, but it is a good idea to do so. Otherwise, if you have a dispute with your tenant about the terms of the agreement, it is your word against theirs as to what was agreed.
The main advantage of having a written tenancy agreement is that it sets out your rights and responsibilities as a landlord in a way that is legally enforceable. This keeps disagreements to a minimum because both sides know where they stand.
Getting advice
Ideally, you should contact your Bahamian property attorney as soon as you start thinking about renting your property out. This will give you a clear idea of the terms to offer to any tenant you are considering. A Bahamian property attorney can:
- explain the different types of tenancy agreement and identify the most suitable for you;
- draw up or check a tenancy agreement for you;
- highlight the essential requirements and terms of your tenancy agreement;
- explain any related legal issues;
- warn you of any pitfalls, including advice on how to end an agreement; and
- give you advice on the type of tenant references to ask for.
Drawing up your agreement
Once you have appointed an attorney, they will explain your rights and responsibilities as a landlord. You then have the opportunity to explain your specific needs and concerns. This will help the Bahamian property attorney to draw up a tenancy agreement that is tailor-made to your needs. During this process, your Bahamian property attorney will cover the following issues with you.
Length and type of tenancy
What type of tenancy do you want? How many tenants will live in the property? What notice will you or your tenant need to give to end the tenancy? How long will the tenancy last?
Restrictions
What restrictions do you want to place on your tenants about keeping pets or playing loud music?
Rent
How much rent can you charge? When must the tenant pay the rent? What penalties are there for paying late? When can you increase the rent? Are there to be any utilities etc. included in the rent?
Deposits
What deposit must the tenant pay? Is the property furnished? If so, will the agreement include a list of furnishings and fittings? When should you return the deposit and in what circumstances can you keep it?
Service charges and repairs
Will you provide any services such as laundry, maintenance or meals? Will you be making separate service charges for these? What are your duties to make repairs?Access
What are your rights to enter the property? It is a good idea to give all these issues some thought before you visit your Bahamian property attorney, and to take along any documents which may be relevant.Using the agreement
Once you have a tenancy agreement, make sure that both you and your tenant sign it at the start of the tenancy. You must give your tenant a copy of the agreement if they ask for it.
Related matters
Your Bahamian property attorney can also give you advice on some of the broader issues involved in being a landlord, such as tax liability and what to do if the property you want to rent out is mortgaged.
Disagreements
If you do have a disagreement with your tenants, there are several ways your Bahamian property attorney can help. Whether it's a simple case of checking your legal rights, or something more complicated such as adapting your tenancy agreement, negotiating a solution or even going to court, your Bahamian property attorney has the knowledge and experience to support you.
Costs
Charges can vary between attorneys and depend upon the type and complexity of the tenancy agreement you want. Before you decide who to use, check with a few local attorneys to compare their charges. Remember that you may have to pay more for a more experienced attorney.
Disclaimer
While we have made every effort to provide accurate information, the law is always changing and affects each person differently. This information is no substitute for specific advice about you personally and we will not be liable to you if you rely on this information. If you would like more specific legal advice you may e-mail us by clicking here.
Friday, 10 June 2011
Making a Will in The Bahamas
Who should make a will?
If you care about what happens to your property after you die, you should make a will. Without one, the State directs who inherits, so your friends, favourite charities and relatives may get nothing.It is particularly important to make a will if you are not married and live with a cohabitant who you would like to be cared for should you pass away. This is because the law of The Bahamas does not automatically recognize cohabitants (partners who live together) as having the same rights as husbands or wives. As a result, even if you've lived together for many years, your cohabitant would be left with nothing if you have not made a will.
A will is also vital if you have children or dependants who may not be able to care for themselves. Without a will there could be uncertainty about who will look after or provide for them if you die.
You should consider taking legal advice about making a will if:
- several people could make a claim on your estate when you die;
- you want to include a trust in your will (perhaps to provide for young children or a disabled person, or simply protect your assets in some way after you die);
- you own all or part of a business.
Using an attorney
Although it is possible to write a will without an attorney's help, this is generally not advisable as there are various legal formalities you need to follow to make sure that your will is valid. Without the help of an expert, there's a real risk you could make a mistake, which could cause problems for your family and friends after your death.What your attorney will need to know
Once you have appointed a Bahamian attorney, they will need the following details from you.What you own
Details of everything you own, including property, cars, personal valuables, stocks and shares, bank accounts, insurance policies, any businesses you own, and pensions.Who gets what?
Who do you want to leave these assets to? How do you want to divide your property between your loved ones, friends or charities? Are there any conditions you want to attach to these gifts (for example, that young people must reach a particular age before they are paid money you have left them)? Do you want to leave money to charity?Family and other beneficiaries
Details of your family and status. Are you married? Do you have any children or any other dependants? If you give your Bahamian attorney relevant details, they can tell you about any legal pitfalls.Guardians
If you have any children that may still be under 18 when you die, you may need to name someone as their legal guardian.Other wishes
Do you have any particular wishes for your funeral? Do you want to be buried or cremated? Are there any other instructions? For example, if you want to be an organ donor this can be included in your will.Executors of your will
You must also name the people you want to appoint as 'executors' of your will - the people who carry out the administration of your will after your death. These could be friends or family members, or a professional such as your attorney. A good combination would be a friend or family member and a professional. Ideally, you should choose someone who is familiar with financial matters. Make sure you ask your executors whether they are happy to take on this duty as there are long-term responsibilities involved, particularly if you include a trust in your will. It is a good idea to ask someone younger than you are.Signing the will
Once the will has been drawn up it is not effective until it has been signed. There are several rules affecting the signature process which, if not followed correctly, will make your will invalid. For example, witnesses and their husbands or wives cannot benefit under the will. Many people use staff at their attorney's office to act as their witnesses to avoid this problem.Where to keep the will
It is important to keep your will in a safe place and tell your executors or a close friend or relative where it is. People often ask their attorney to store their wills for them. Most attorneys will do this for free, but sometimes there is a small fee.Keeping your will up to date
You should review your will at least every five years and after any major life change such as getting separated, married or divorced, having a child or moving house. It is best to deal with any major changes by getting a new will drawn up. But it is also possible to make minor changes (or 'codicils') to your existing will. In both cases it is best to consult an attorney.Costs
Charges for drawing up a will can vary between attorneys. They also depend on:- the experience and knowledge of the Bahamian attorney; and
- how complicated your will may be.
Disclaimer
While we have made every effort to provide accurate information, the law is always changing and affects each person differently. This information is no substitute for specific advice about you personally and we will not be liable to you if you rely on this information. If you would like more specific advice, you can e-mail us by clicking here.Friday, 27 May 2011
Renting a home in The Bahamas
The key to a quiet life
Disagreements between tenants and landlords can be long and sometimes bitter. Yet most can be avoided with the right legal advice at the start.
Your Bahamian Landlord and Tenant Attorney can deal with all areas of Landlord and Tenant Law and are skilled in settling disputes. But prevention is better than cure. The key to a happy tenancy is to understand your rights and duties as a tenant and to make sure your tenancy agreement or Lease reflects them. This is why it's vital to visit a Bahamian Attorney before you agree to your landlord's terms.
Leases and tenancy agreements
A lease is a grant of exclusive possession of property for a fixed term, in exchange for payment of rent.
Leases grant a legal interest in land, as opposed to an equitable interest and are granted by deed for this purpose.
The person granting the lease is known as the landlord or lessor, and the person entitled to possession known as the tenant or lessee.
A tenancy agreement is a contract between you (the tenant) and your landlord. This contract can be written or verbal. In The Bahamas there is no law to say that landlords have to provide a written tenancy agreement, but it is always a good idea to ask for one - even if your landlord is a friend or family member. Otherwise, if you have a dispute with your landlord about the terms of your tenancy, it is your word against theirs as to what has been agreed. This can create serious problems for you which can prove stressful and costly in the event of a dispute between you and your landlord.
How long will it take?
If the tenancy agreement you are considering is relatively straightforward, you will probably only need one meeting with your Bahamian landlord and tenant attorney to check the agreement through. Your Bahamian landlord and tenant attorney will then send you a letter to summarize the advice they have given you.
What will the meeting cover?
If your landlord has given you a written agreement to sign, bring it with you. Your Bahamian landlord and tenant attorney will go through it point by point to:
- check that it is legal
- explain the basic requirements of the agreement; and
- warn you of any pitfalls.
You will need to consider the following key issues
Length and type of tenancy
When does the tenancy start and finish? What notice does the landlord have to give you to end the tenancy? Under what circumstances can you be evicted? What do you have to do if you want to end the tenancy?
Lease restrictions
What restrictions has your landlord placed on you keeping pets, hanging out washing or playing loud music after hours? Are these restrictions reasonable? What happens if you ignore them?
Rent
When do you have to pay the rent? What might happen if you don't pay on time? Will you have to pay interest? How often and when can the landlord increase your rent?
Deposits
How much do you pay and when do you get it back? Is there a list of fixtures and fittings which your landlord has left in the property?
Service charges and repairs
Will the landlord provide any services, such as laundry or maintenance? Are there separate service charges for these? What are the landlord's duties to carry out repairs? Can you withhold rent if the property is in disrepair?
Access
What are the landlord's rights to enter your home? Are other people allowed to use the property? If so, which rooms can they use?
Further action
If any of your landlord's terms seem unreasonable or inconvenient, your Bahamian landlord and tenant attorney can tell you how best to go about raising these concerns.
Disagreements
Sadly, most tenants don't take advice until matters have reached crisis point and they find themselves evicted or their rights abused. Although it is rarely as easy to solve a problem at this stage, your Bahamian landlord and tenant attorney has the knowledge and experience to see the matter through.
Costs
Charges can vary between attorneys. They depend on:
- the experience and knowledge of the attorney; and
- how complicated the tenancy agreement is.
Before you decide who to use, check with a few different local attorneys' firms to compare their charges. Remember that you may have to pay more for a more experienced attorney.
Disclaimer
While we have made every effort to provide accurate information, the law is always changing and affects each person differently. This information is no substitute for specific advice about you personally and we will not be liable to you if you rely on this information.If you require more detailed advice, you can e-mail an experienced Bahamian Landlord and Tenant law attorney by clicking here.
Wednesday, 25 May 2011
Welcome to my blog on Bahamian Legal Advice
I have been thinking for awhile now about convenient methods to be able to promulgate basic knowledge to Bahamian people about common legal issues that often arise in our lives. The majority of people don’t consider the legal ramifications of decisions they make until something goes wrong. This can be either because they are not aware of the potentially far-reaching consequences, or the person or corporation with whom they are doing business exerts tremendous pressure on them to accept terms of contracts that they are not given an opportunity to examine their situation and properly prepare or protect themselves.
The purpose of this blog is to provide general legal knowledge about issues that we are exposed to almost on a daily basis. I will try to touch on different issues on a regular basis. I will also update you on any changes to the law. I will also try to give you some advice on practical, as well as legal, issues; in hopes that my work can enrich your lives, even if only a little bit. This way, I know that what I am doing is worthwhile.
I am a Counsel & Attorney-at-Law in The Bahamas with experience in a breadth of areas of law and I hope that my knowledge may assist you in dispensing with your legal issues or, better yet, preventing them from arising.
I welcome your questions or suggestions of any specific areas that you would like for me to discuss. Your questions may give me new areas of law or issues to research and I am always content with new challenges to work on.
I hope you find my site useful and feel free to provide any comments.
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