Privy Council rules in favour of TCI Government in South Caicos land dispute

By Deandrea Hamilton & Dana Malcolm

Editorial Staff

#TurksandCaicos, November 22, 2022 – A 14-year old land dispute has reached its end, it seems, and the Turks and Caicos Islands Government escapes being sued for breach of contract in connection to a South Caicos property sold to private developers back in 2008.

The Turks and Caicos Islands Government prevailed in the Privy Council case and has reclaimed yet another parcel of Crown Land that was sold, according to case files, in 2008 when a $100 million dollar development was proposed.

CMO BWI Ltd, also the developers for the Sail Rock resort on South, claimed the contract for the land (also) located in South Caicos was breached after an agreement and subsequent renegotiation went sour with the introduction of new law.  The developer filed a suit against the Government, saying TCIG reneged on its own agreement and aborted a perfectly legal contract.

According to case files provided at the Privy Council’s website, “CMO are the developers of property situated in South Caicos to whom the Government in 2008 granted the right to carry out a mixed-use development. The total cost of the development would be $100,000,000. The agreement included the right to restore and use, as part of the development, certain parcels of Crown land. These parcels were to be granted to the developers in the Downtown Restoration Lease at a peppercorn rent if and immediately after they had invested $2 million on Island Improvements.”

The breach, according to the complainant involved the transition from UK Direct Rule to TCI Governance in November 2012.  The new constitution now turned over Crown Land management to the Attorney General’s Chambers and established a Crown Land Recovery Unit which was charged with repossessing land sold off in allegedly ‘sketchy’ deals.

The then government, led by Michael Misick, former TCI Premier had agreed to the $100M project for South Caicos, which also roped in general improvements for the island.  CMO agreed to those terms and reportedly began investing in infrastructure enhancements just before the government they knew was gone.

UK Direct rule was imposed in 2009 and with it came a partial suspension of the TCI Constitution, locally elected and appointed leaders.

It put the project in limbo but in 2013, according to the case file, there was an amended agreement with the government which meant, “there was no longer a requirement for the Appellants to present proof of having expended $2m in order to obtain the Downtown Restoration Lease, although it was necessary for the Appellants to notify the government that they were ready to commence the island improvements.”

One day later, CMO informed the government they were ready to begin “island improvements” which meant the government had to execute the restoration lease. That did not happen however and it was nearly two more years before the TCI Government would take definitive action.  The action was to deny the Downtown Restoration Lease citing a new Crown Land Ordinance (CLO) had been written, which essentially nullified significant elements of the previous contract.

“In January 2015, TCIG gave formal notice that it would not grant the Downtown Restoration Parcels Lease, stating that it was precluded from doing so by Section 34 and Part B of Schedule 2 of the CLO with prevented it from entering into any lease unless it was at market rent, having followed the process prescribed by the CLO.”

In July 2016, the developers began proceedings in the Supreme Court which they lost and on July 11 this year, the case was heard at the Privy Council in London.

On November 3, the Privy Council maintained that the Court of Appeal was right in dismissing the Appellant’s appeal, agreeing that the contract in 2013 had canceled out the agreement in 2008 and that the 2013 agreement could not be carried out under the new TCI law.