The controversial White’s Island lease was before the Supreme Court yesterday as Government attempted to regain control of the property.

The Ministry of Public Works claims that the property’s lease to anti-gang organisation CARTEL is in breach of the law, but lawyers for the organisation’s trustees said the breach was a simple error that can be fixed by the courts.

White’s Island in Hamilton Harbour was leased rent-free to CARTEL on September 28, 2010 under a 21 years less one day lease, for use as “a facility for adventure training activities for the betterment of the people of Bermuda”.

However, it was later revealed the lease had an automatic renewal clause which would take it over 21 years, putting it in breach of the Public Lands Act 1984.

According to the Act, any lease of public land lasting 21 years or longer must be brought before the Cabinet and Parliament, but the White’s Island lease was not presented to either body.

In an effort to regain possession of the island, Government launched legal action against the trustees of the CARTEL Charitable Trust — Leroy Bean, Leyroyce Bean and Shelly Steede.

Lawyer Saul Froomkin, representing the Ministry of Public Works, argued before the court that because the lease was in breach of the Public Lands Act it was void from the beginning.

And he noted that while the lease listed the leasee as “CARTEL Charitable Purpose Trust”, Mr Froomkin said no such trust existed. Even if it did, purpose trusts are not legally allowed to own land.

He acknowledged that “CARTEL Charitable Trust” does exist and can legally own property, but said the defendants had stated the intended leaseholder was actually Rev Bean himself.

Mr Froomkin added: “One would have to assume that neither [then Public Works Minister Derrick] Burgess nor Rev Bean had read the lease.”

While the Supreme Court has the ability to render only a portion of a document void provided the meaning of the document remains unchanged — the “Blue Pencil rule” — Mr Froomkin argued that such a move would not be applicable in this case.

“If it was only taking out the one clause as oppose to a new lease, then there’s an argument,” Mr Froomkin said. “But you cannot blue pencil because you would be rewriting the lease.”

Lawyer Charles Richardson, representing the defendants, however, argued that the court does have the power to simply excise the section of the lease allowing it to be extended, which would in turn make the document allowable under the law.

“We’re not talking about rewriting it but bringing it in line with the intention of the parties,” Mr Richardson said. “The problems it does have can be rectified with simple common law remedies.”

He said the lease was never intended to be extendable beyond 21 years — noting the unusual duration of the lease — and that Rev Bean was always intended to be the leaseholder while the CARTEL Charitable Trust would administer activities.

Unfortunately, Mr Richardson said neither Rev Bean nor Mr Burgess noted the mistakes in the lease before it was signed.

“That’s what happened here and we cannot get away from that,” Mr Richardson said. “I cannot make excuses for it.”

He suggested that the presence of the clause allowing for the lease’s renewal may have been caused by someone “cutting and pasting” from other leases, noting that in an affidavit Mr Burgess said such clauses are standard.

At the close of the hearing, Chief Justice Ian Kawaley reserved his judgement for a later date.