Экзамен зачет учебный год 2023 / Study on Key Aspects of Land Registration and Cadastral Legislation. Part 1

18.Is proof required of the discharge of a sellers mortgage before registration of a new purchaser is made ?

A variety of situations exist.

In 10 jurisdictions proof is required. In 31 there is no obligation for proof of the discharge to be obtained before registration. In others it is the practice rather than a strict legal requirement. Some states indicated that it is extremely rare for the discharge not to be effected prior to registration. In others a mortgage may be transferred to the new owner who takes the property encumbered with the existing debt.

19.Is it possible for an intending purchaser to secure, from the Land Registry, guaranteed priority or protection from a hostile transaction after contracts have been exchanged but before registration ?

In 19 jurisdictions such guaranteed priority can be secured prior to substantive registration of the purchase by the new owner. In others protection can be obtained by registering a ‘priority notice’ or depositing the contract. In others the exact time of delivery of the documents (including contracts) determines priority.

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SECTION F

Guarantee - Indemnity - Rectification

20.Are the Land Rights that are registered guaranteed by the State or by any other means ?

and

21.If such rights are not guaranteed by the State what other protection is there for a person or legal entity who suffers loss by an omission or error in the register ?

A total of 34 States indicated that the land rights registered are guaranteed by the State.

9 indicated that they were not. Where the rights were not guaranteed by the State any person who suffered loss as a result of a mistake in the land register could seek remedy through court procedures.

22.Has the Registrar (or the Ministry or Minister) power to pay indemnity to anyone who suffers loss by an omission or error in the land register ?

In 21 jurisdictions provisions exist whereby the Registrar, Minister or Ministry can pay indemnity to anyone who suffers loss by an omission or error in the land register. No such provision exists in the other 22 States - where Court proceedings would need to be taken to secure compensation

23.Where a person or a legal entity disputes the facts recorded on the land register how can they seek rectification ?

A By application to the Registrar ?

B By application to the Court ?

C By other means (please specify) ?

On substantive issues a claim for rectification can be made directly to the Registrar in 37 jurisdictions. Where the applicant is not satisfied with the Registrar’s decision he or she may make a claim to the Court. In 6 States the claim is made directly to the Court. On minor issues or where clerical errors have been made these may be referred to and corrected by the Registrar in all jurisdictions

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SECTION G

Publicity and Freedom of Information

24. Is the register open to public inspection ?

AWholly ?

BPartly ?

CIn certain circumstances ?

Wholly open to inspection in 30 jurisdictions* Partly open to inspection in 4 jurisdictions Open only to owners in 9 other jurisdictions

(*in one country not by direct inspection but by certification)

25.Can an approved enquirer obtain a copy of any register or map of a registered property ?

In 40 out of 43 jurisdictions copies of any register or map of a registered property is obtainable to an ‘approved enquirer’.

26.Is the purchase price paid for a property recorded on the land register ?

It is in 31 jurisdictions (sometimes by reference to an inspectable document referred to in a register). In 12 it is not.

27.Is information as to the price paid for a property available to the public ?

In 28* States or Provinces the price paid is available to the public either directly from the register, the cadastral record or from inspectable documents. In 1 it is in particular regions only. In 14 it is not available. (* Under new Rules In England and Wales prices paid have now become available on all transactions effected from 1 April 2000)

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SECTION H

Survey, Mapping and Boundaries

28.Is registered land related to a map indicating the extent and the boundaries of the property.

It is in 41 jurisdictions. In 2 it is in some areas and in other areas the land is described verbally.

29.Are boundaries determined precisely by co-ordinates or are they determined by general boundaries in relation to a topographic map ?

In 23 jurisdictions boundaries are precisely defined by co-ordinates.

In 11 the situation varies with some areas governed precisely by co-ordinates and others (usually rural areas) dependent on graphical or topographical survey and general boundaries.

In the remaining 9 jurisdictions registration is with general boundaries in relation to a topographic map.

30.What laws govern the recording of ownership boundaries ?

A wide range of laws govern the recording of ownership boundaries in member States.

31.Which organisation is responsible for maintaining the survey and mapping of registered properties.

Generally the responsibility for survey and mapping is in either the:

The Cadastral Office, The National Survey and Mapping Organisation, The Ministry of Environment, The Geodetic Administration, The Department of Lands and Surveys, The Land Registry,

The Registration Agency of Property Rights

32.Does the law or any regulation require that unique reference numbers are used for registered land ? (please specify)

It does in 30 jurisdictions but not in the remaining 13

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SECTION I

Fees and Financing

33.To what extent is the cost of maintaining the land registration system financed by fees paid by customers or by central government funding (indicate relative percentage) ?

In 24 jurisdictions the cost of maintaining the land registration system was met wholly by customers fees. In 18 jurisdictions it was financed by a combination of customers fees and government funding. The proportions vary. In one country it is wholly financed by Government funding with a planned transition toward self financing

34.Who, or what Institution, has the authority to decide the level of any fees payable ?

Various Constitutional Bodies:

Parliament

Council of Ministers

Ministries

the Courts

35.Are fees set under the provisions of the law or regulations, (please indicate any legal provision that governs the setting of fees) ?

In every jurisdiction fees are set under statutory provisions or regulations. Fees are usually set by the Minister responsible for the Land Registration or Cadastral Office but with the agreement of the Ministry of Finance

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SECTION J

Documents and Forms

36.What documents does the law stipulate as registrable (for example, transfer, mortgage) ?

Very many documents are registrable, including;

Transfers

Mortgages

Discharges of Mortgages Leases

Rentcharges Court judgements Documents of Gift Inheritances

Bankruptcy Orders.............

....and others

37.Does the law stipulate the form of the land register to be maintained for each individual registered property ?

Yes, in the main registration Law, or in Rules or Regulations made under the Law (Many examples of registers were provided)

38.Does the law stipulate the forms that have to be presented to the Land Registry when applications are made to register ownership and other land rights ? (please specify the forms)

In 37 jurisdictions the laws stipulate particular forms that must be used to register ownership and other rights. In 6 jurisdictions there is no specific stipulation

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