Экзамен зачет учебный год 2023 / McEwen, The Significance of Land Title Registration

THE SIGNIFICANCE OF LAND TITLE REGISTRATION:

A GLOBAL PERSPECTIVE

Dr. Alec McEwen

Emeritus Professor of Geomatics Engineering

University of Calgary

Land Administration Consultant

amcewen@agt.net

Abstract

The main objects of land title registration are to protect property rights, to facilitate transactions in land, and to enable land to be used as collateral for a loan. A system of land title registration identifies each individual land parcel and provides confirmation by the state that the person named in the register has specified property rights in that parcel.

Land title registration should be simple, reliable, prompt, affordable and well suited to the society it serves. The experience of a number of countries shows that attempts to introduce a land title registration system will be unsuccessful unless that system is supported by appropriate legislation and institutions, and unless there are sufficient financial and human resources for its implementation and maintenance.

A uniform, integrated system of land title registration confers many benefits. For the individual it offers security of tenure, a reduced likelihood of ownership or boundary disputes, simpler and less costly land transactions, greater access to credit, and increased market value. For a government administration it represents a major component of a land information system, assists land use planning and development, improves the land market, stimulates investment, and creates a basis for land taxation. For a society it can help to promote the peaceful, orderly and wise utilisation of the national land resources.

Land Registration Systems

Deeds Recording

A system of deeds recording gives publicity to land transactions and helps to prevent concealed dealings. The act of recording a deed gives notice to the public of a claimed interest in land, and it also establishes a priority against other possible claimants to the same interest. Although there is usually no statutory compulsion for parties to a transaction to record their documents, it is prudent for them to do so and risky if they do not. An unrecorded document is legally ineffective against any subsequent bona fide purchaser or mortgagee who first records an interest in the same land. For example, suppose that a vendor fraudulently sells the same piece of land to two different

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purchasers at different times. The purchaser who first records his or her transaction has the better claim to the land, even if that transaction took place later than the first one, provided the purchaser has bought in good faith and is unaware of the first purchase. In such a situation the first purchaser has no claim against the deeds registry and would have to pursue a legal remedy against the vendor, who by that time might be bankrupt or have fled the jurisdiction.

A deeds registry is essentially a public repository of documents. Recording is the acceptance and entry of documents relating to transactions or interests involving land. It is evidence that a particular transaction has taken place, but the mere fact of recording is not proof that the parties had a legal right to carry out the transaction, nor does recording by itself validate a deed of conveyance.

Under a system of deeds recording, a document presented for entry is normally accepted at face value and is not subjected to detailed technical scrutiny by registry office staff. Unless a survey plan accompanies the document it may be very difficult to determine the size, shape and location of the land in question. Boundary descriptions that attempt to define parcel limits solely by citing the names of adjoining owners, who may have departed long ago, are among the possible sources of confusion in interpreting deeds, as also are the frequent ambiguities in metes and bounds descriptions.

A deeds recording system usually offers insufficient information to identify areas and extent of private and public lands. Not only does this deficiency affect the conveyancing process; it leads to uncertainties of ownership, boundary disputes, unlawful occupancy, and the lack of a national, regional or local land inventory for resource planning and fiscal purposes. For an individual proprietor, the imperfection of a land title that is not fully documented may restrict the ability to obtain a mortgage or other credit financing from a lending institution. The insecurity of a flawed or uncertain title also impairs the marketability of land, inhibits its development, and may lead to its eventual decay or abandonment.

Despite its obvious shortcomings a deeds recording system is sometimes preferred by some parties to land transactions because documents can be recorded more quickly and at a lower cost than under a land titles registration system. Deeds registries may also be favoured by some administrations because they are less costly to establish and operate than land title offices. Also, the fees they charge can yield substantial revenues to governments.

Title Registration

Registration under a land titles system is more than the mere entry in a public register; it is authentication of the ownership of, or a legal interest in, a parcel of land. The act of registration confirms transactions that confer, affect or terminate that ownership or interest. Once the registration process is completed no search behind the register is needed to establish a chain of title to the property, for the register itself is conclusive proof of title. This type of title is often referred to as indefeasible (or absolute), which means that it cannot be legally defeated, except in situations where a title was obtained by fraud.

The conclusiveness of title registration is upheld by the state. Land titles legislation offers the assurance, subject to certain exceptions that are specified by statute,

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that any person entitled to an interest in a registered parcel who suffers loss resulting from an error on the part of the Registrar or registry staff, may apply for monetary compensation from a government fund. The statutory exceptions, usually known as overriding interests, may include such measures as the power of expropriation, municipal building restrictions, and writs of execution against the parcel. This means that a wise purchaser or mortgagee, in addition to searching the register, should seek legal advice regarding the investigation of other appropriate sources to discover whether or not any overriding interests exist.

A number that is unduplicated throughout the registration district identifies each parcel in a land titles registration system. This number remains unchanged despite any change of ownership, but a separate number is issued for each new unit whenever a parcel is subdivided and also for any new parcel formed by the consolidation of existing parcels. This unique method of parcel identification avoids the use of proprietors’ names, a practice that may cause uncertainty if the same name is in common use.

Requirements for Land Title Registration

Legislation

Given the superiority of land titles registration over deeds recording, why has it not been universally adopted? In some jurisdictions that maintain deeds recording, including, for example, nearly all the individual states of the United States of America, private companies offer title insurance upon payment of a single premium. The availability of title insurance may deter the conversion from deeds recording to land titles registration. A deeds recording system may also operate satisfactorily if, for example, property boundaries are well-defined either by physical features or by accurate surveys. Yet there are many instances where legislation for a system of land titles registration is sought and actually introduced, but the system itself proves inoperable and is later discontinued.

Success in introducing and maintaining a land titles system requires political commitment, an appropriate legislative and institutional infrastructure, a cadastral survey framework, and sufficient human and financial resources for its operation.

Every government faces the problem of setting priorities and allocating scarce finances to deal with its country’s needs. The problem is greatly exacerbated if the country suffers adversity, such as widespread economic recession, unemployment, poverty or disease. In such circumstances a government may be tempted to focus less attention on land ownership records than on what it perceives to be more pressing concerns. Even when one government enacts land titles legislation a later administration may decide against its implementation. In Canada, for example, the three provinces of New Brunswick, Nova Scotia and Prince Edward Island each passed a Land Titles Act in the 1970s. Except in New Brunswick, where the law was proclaimed only with respect to a pilot project in one county, the legislation has not been brought into force. In the two other provinces the laws lie in a legal limbo where they may eventually be repealed or simply omitted from a future consolidation of the statutes.

The drafting of appropriate land titles legislation involves more than the legal scrivener’s art. New or amended laws must reflect current government policy, but they

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must also be capable of operation and enforcement. In some countries, legislation introduced more than century ago failed to satisfy its intended purposes, perhaps because of its complexity, or its unsuitability to the local system of land tenure, or the lack of cadastral maps. In Sri Lanka, for example, the Ordinance No. 8 of 1863, which provided for the recording of deeds, as well as the registration of title on a cadastral survey, was not extended beyond a small area in Colombo-Wellawatta, nor did a number of subsequent colonial ordinances produce substantial improvement. The lengthy and costly procedure that requires each application for initial registration to be heard by a judge of the Supreme Court inhibits the utilization of the Real Property Ordinance of Trinidad and Tobago, which is Torrens-type legislation introduced in 1895 and still current. A comparative analysis of land titles legislation in other jurisdictions can assist a country in enacting its own laws for that purpose. Yet the object should be to find solutions that are based entirely on local needs and circumstances. The uncritical adoption of legislation that appears to apply satisfactorily under different conditions elsewhere may lead to a forced conformity that proves unworkable in the country of its reception.

Following the initial registration of the title to a parcel, the registration of all future transactions affecting that parcel should be compulsory. If this is not done the register will no longer reflect the true state of the title. Peru offers an example of wellintentioned legislation that created the Urban Property Registry (RPU), a land titles registration system which, despite its successful introduction, falls short of assuring the certainty of title which that system is expected to offer. Under current Peruvian law the holder of the registered title to a parcel may transfer or encumber the parcel without any requirement to register the transfer or encumbrance. It can be readily appreciated that unless there is a legal obligation to register all such transactions the registry itself will lose its integrity. In the course of time the recorded information will become incomplete and unreliable, thus destroying the very purpose for which the registry was originally created. The Peruvian officials who administer the RPU are not unaware of this problem, which is due in part to the unwillingness of transacting parties to pay the required registration fees.

Cadastral Survey

A legal cadastre provides the geographic underpinning of a land title registration system. Cadastral index maps show all the parcels in a registration district in their correct relationship to each other. Parcel boundary dimensions and superficial area can be shown either numerically on the map or derived from scaling. The map will not normally portray contours or other topographic information, except where a natural feature, such as a stream, forms a parcel boundary. Each individual parcel is represented on a large-scale cadastral plan, which, in addition to numerical boundary and area data, usually shows buildings, fences and other enclosures, and boundary markers.

The composition of a legal cadastre may rely on a number of surveying and mapping techniques that can be employed independently of, or in conjunction with, each other. The choice of air photography will depend upon such factors as flying conditions, cloud coverage, the existence of boundaries that are marked by physical features, and the presence of vegetation that may obscure the visibility of those boundaries from the air. Land surveys must take into account the nature and accessibility of the terrain, and the

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availability of modern technology such as the Global Positioning System and the Total Station. Whichever technological approach is adopted, a cadastral survey implies the systematic collection of boundary and ownership information, gathered from field and documentary evidence and, where necessary, the testimony of witnesses.

The object of a legal cadastre should be to ensure that parcels are shown in their correct topological relationship and that their boundaries and areas can be determined to a degree of accuracy that is sufficient for land title registration purposes. Excessive refinement of field measurement will add to the cost of the cadastral survey and may be unjustified. Individual owners who wish to have parcel boundaries defined more precisely should have them surveyed at their own expense. It is an enduring myth in the minds of many people that boundary descriptions and areas of parcels registered under a land titles system are guaranteed by the state, or that if they are not they should be. This view is less likely to prevail in countries, such as England, with its preponderance of fences, walls, hedges and other physical features that demarcate parcel boundaries and obviate or reduce the need for numerical dimensions. But in other countries where boundaries are defined mathematically, surveyors and landowners alike may tend to regard a boundary location that is expressed in terms of bearing and distance and securely anchored to a coordinate control network as superior to a mere graphical boundary, however accurately portrayed.

A state assurance as to a registered parcel under a land titles registration system applies only to the identity and quality of the title to the parcel, not the physical extent of that parcel. Land titles legislation usually contains a provision that expressly excludes boundary description from the conclusiveness of registered title. For example, subsection 140(2) of the Ontario Land Titles Act states that the description of registered land is not conclusive as to the boundaries or extent of the land. A provision of this kind is necessary to avoid claims against the Assurance Fund involving, for example, discrepancies in survey measurements or a surveyor’s mistaken reliance on field evidence, over which the land titles office has little or no control and for which it cannot be held responsible. Some land titles offices have the technical capability to check survey plans that are submitted for registration; others may not accept such plans until a government survey department has scrutinized them. In Alberta and Ontario, public officials no longer routinely examine survey plans submitted by private land surveyors for registration, except in those very few situations where there is a statutory requirement. Instead, the association of professional land surveyors in each of those two provinces undertakes periodic, random checks of the field and office work of its members to ensure that the required standards are met and to instigate disciplinary procedures against any delinquent member.

Adjudication

Land adjudication (or land settlement as it is sometimes called) enables the state to determine and confirm the ownership of, and the legal interests in, individual parcels of land. It also provides for the physical demarcation of parcel boundaries. The need for adjudication may arise from dispute or simply from uncertainty. Even where land is unoccupied and is apparently owned by the state, adjudication provides a convenient method of cleansing the title by making sure that no adverse claims exist or, if they do exist, they are properly dealt with. Adjudication is concerned with existing rights to land,

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but it can also be the prelude to subdividing tracts of state-owned land for subsequent distribution to private persons. Adjudication can be carried out systematically, area by area, or sporadically for isolated parcels. Systematic adjudication is more efficient and less costly than sporadic adjudication, but the political, social or economic pressures of local circumstances may compel the simultaneous adoption of both methods. It is often advisable to undertake adjudication in a pilot area of manageable size that contains different types of property, to allow some experimentation with procedures and to gain valuable experience for the extension of adjudication to other regions.

The adjudication process will be facilitated if its object is explained in terms that are easy to understand, by means of public meetings, radio and television programmes, and print media. This should help to allay any suspicions that adjudication is just a step towards increased taxation. An imaginative approach in Zanzibar produced an excellent video in 1995 entitled “A New System of Land Registration,” performed enthusiastically by local amateur actors, the script of which was also adapted for radio. In 1996 a land titling project in Moldova engaged a local public relations consultant to present a weekly radio broadcast that discussed the work and invited questions and comments from listeners.

Procedures for adjudication require special legislation under which a team led by an adjudication officer is empowered to visit a designated site to hear and settle claims, and to demarcate and survey parcel boundaries. The date and time of the visit must be well publicised in advance by a written or other appropriate notice. The notice should state that every claimant to ownership of, or interest in, any of the land referred to in the notice must appear in person or by authorised agent before the adjudication officer. It should also require every such claimant to present all documentary and other evidence to support the claim, including the oral testimony of witnesses.

If the claimant and the owners of adjoining land accept in writing the adjudication officer’s decision, the parcel boundaries are demarcated and surveyed. Demarcation and survey should be carried out simultaneously and as soon as possible after the decision. If the time interval between demarcation and survey is too long there is a risk that unscrupulous persons might surreptitiously remove boundary marks. The methods of surveying and demarcation may vary according to local needs and practices, but each adjudicated parcel should be given a unique number that can then form the legal description of the parcel for land title registration purposes.

Decisions of the adjudication officer that are disputed by any party can be appealed to a statutory body, such as a land tribunal, subject to a further right of appeal to a high court for final ruling.

Benefits of Land Title Registration

Benefits for the Individual Person

Among the most important benefits of title registration for the individual person is the security that it gives to the registered owner of a parcel, as well as to the holders of registered lesser interests in that parcel. The desire for an official documentary confirmation of ownership is strong among people in those parts of the developing world who occupy land under what is commonly referred to as “informal title,” a euphemism

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for a title that is not recognised by law. In Peru two separate organisations, each supported by a different donor, are engaged in issuing titles. The Commission for the Formalisation of Informal Property (COFOPRI) deals mainly with the problem of urban squatters, while the Special Project for Rural Land Titling and Cadastre (PETT) has a somewhat similar function in the rural areas. Both projects involve field and office investigation and the issue of a free registered title to each successful claimant. The problem of encroachment on public land is also being dealt with in Trinidad and Tobago under the State Land (Regularisation of Tenure) Act, which protects squatters on state land by offering them a Certificate of Comfort and facilitates their acquisition of a leasehold title.

Because it is based on a reliable cadastral framework, registration of title can be expected to reduce, perhaps even eliminate, disputes concerning parcel ownership and boundaries. In the land titles jurisdictions of Alberta and Saskatchewan, the rare instances of boundary litigation usually relate to riparian accretion or erosion. By contrast, in the four Atlantic provinces of Canada the retention of a deeds recording system can be a source of ownership and boundary uncertainty.

By avoiding the need for historical searches, title registration simplifies the conveyancing process and makes land transactions less costly. This does not mean, however, that the services of a notary can be safely dispensed with, for the possible existence of unregistered overriding interests will require investigation.

Banks and other lending institutions are understandably reluctant to advance money by way of mortgage unless they are satisfied that the prospective mortgagor has clear title to the land that is offered as security for the loan. The presentation of a certificate of title by the applicant may satisfy that concern. Unscrupulous persons sometimes offer skilfully forged documents, however, and purported certificates should be checked against the official register. The access to credit that land title registration provides raises development capital that a person without formal title often finds it difficult, if not impossible, to obtain.

A parcel of land held under registered title is more easily marketable than a parcel that is either untitled or that derives its claim of ownership from a deed or will. Greater ease of marketability means that a parcel with a registered title is more valuable and should command a higher selling price than a parcel with identical or similar characteristics that is not registered.

Benefits for the Public Administration

Because of the expense involved in establishing a land titles registration system it should be designed to benefit the maximum number of potential users. Indeed, it may be difficult to justify the cost of title registration if its only purpose is to facilitate land transactions.

It is useful to regard title registration as part of a national land information system that stores and maintains land-related data. Governments require current, reliable land information for a variety of administrative purposes. The maintenance of reliable census records and the collection of payment for public utility services are just two among many examples of a need to know geographical location that a title registration system can provide

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Urban and rural planning, and the management and conservation of natural resources will be undertaken more effectively if accurate information concerning land ownership is readily available.

By helping to improve the land market title registration promotes economic activity that benefits the public administration by yielding increased tax and other revenues that can be used to reduce unemployment and poverty.

The availability of registered title is an incentive to foreign investors who might otherwise be deterred by the uncertain ownership of land they wish to acquire, and whose injection of capital can stimulate the local economy.

Because they identify and portray individual parcels, the legal cadastral index maps that support a title registration system can be conveniently employed as the geographic framework for a fiscal cadastre. This type of cadastre provides a system by which the economic value of land and buildings is assessed and recorded for property taxation by a municipal or other authority. Fiscal cadastral maps are kept up to date to depict new buildings or additions to existing buildings. Different government departments usually administer the title registration system and the fiscal cadastre but they share an interest in maintaining an accurate record of property ownership and location.

Title registration also represents an important component of a land inventory or multipurpose cadastre. A land inventory contains information such as land utilisation , soil classification, agricultural or other potential, environmental factors, the number of occupants, and the location of water supply and other municipal services. This information may be displayed textually or graphically, as attributes of the legal cadastral base, for a particular region, parcel or group of parcels. Each piece of information in a land inventory is arranged according to its category, and each category can be displayed as a separate layer on the cadastral framework.

Benefits for Society

Any society suffers if it experiences pervasive disputes or uncertainties concerning the ownership and extent of its land parcels. The resolution of such problems by litigation is an expensive, time-consuming process that many land claimants cannot afford to pursue. Title registration offers security of tenure and peace of mind to all members of a community.

An important benefit of land title registration is that it can provide an integrated system of recording land rights that applies uniformly throughout the jurisdiction. Its use of standard forms and procedures avoids confusion and inspires public confidence in the system.

Title registration complements and does not conflict with customary law. The system can protect the confidentiality of undivided interests by registering land in the name of a trustee, acting on behalf of beneficiaries who are identified not on the register itself but in a separate trust instrument. It can also accommodate other special types of interest. For example, the regulations governing the Métis Settlements Land Registry in Alberta permit the registration of certain types of land holding that are appropriate for the Métis aboriginal communities but lack recognition under the provincial land titles system. In Zanzibar, economic trees such as clove and coconut can be owned separately from the

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soil in which they are planted. The Zanzibar Land Tenure Act requires the registration of the name of each person owning an interest in such trees to be included as part of the registration of the land on which the trees are located.

Foremost among the benefits of title registration to society is its promise of an orderly, peaceful approach to the wise utilisation of the national land resources. Perhaps the most important requirement for the establishment of a properly functioning system of land title registration is the willing co-operation of all those institutions and persons who will derive value from it. They include not only the relevant government departments but also professional practitioners such as surveyors, notaries and urban planners, as well as the general public. Registration of title to land forms a fundamental part of land administration, and good land administration is essential to good government.

Further Reading

DALE, Peter F. Cadastral surveys and records of rights in land. Rome: Food and Agriculture Organization of the United Nations, 1996 [Based on the 1953 study by Sir Bernard O. Binns].

DE SOTO, Hernando. The Mystery of Capital, New York: Basic Books, 2000. DOWSON, Sir E. and SHEPPARD, V.L.O. Land Registration. London: HMSO, 2nd

edition, 1956.

ECE. Land Administration Guidelines: With Special Reference to Countries in

Transition. Geneva: Economic Commission for Europe, 1996.

HANSTAD, Tim. Land Registration in Developing Countries. Seattle: Rural Development Institute, 1996.

LARSSON, Gerhard. Land Registration and Cadastral Systems: Tools for land information and management. London: Longman, 1991.

MEEK, C.K. Land Law and Custom in the Colonies. London: Frank Cass, 2nd edn, 1968. RUOFF, Theodore B.F. An Englishman Looks at the Torrens System. Sydney: The Law

Book of Australasia Pty Ltd., 1957.

SIMPSON, S. Rowton. Land Law and Registration. Cambridge: Cambridge University Press, 1976.

UNCHS. Guidelines for the Improvement of Land-Registration and Land-Information Systems in Developing Countries. Nairobi: United Nations Centre for Human Settlements (Habitat), 1990.

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