Экзамен зачет учебный год 2023 / Zevenbergen, Land Registration

In the Fall of 1996 he worked 2 weeks in total in Austria. Firstly a few days in Vienna during which he visited most involved organizations. Later he visited Innsbruck for a week, where he visited the provincial offices of several organizations, and participated in the field during subdivision.

In the Spring of 1997 he worked 6 weeks in Ghana. The first week was spent in Accra, the capital, with visits to the most involved organizations. Then he spent three weeks in Kumasi, at the University of Science and Technology, where he got an office at the Land Administration Research Centre (LARC). He studied many documents in their archives and visited several university departments and regional offices of relevant organizations. After a holiday, he spent the last two weeks again in Accra, where he visited the most relevant organizations again, spent a day in the field putting in boundary markers in a new development area, and located some more documents.

Figure 5.3; Land Administration Research Centre at the campus of UST, Kumasi (Ghana)

In this case study great emphasize is put on the first method, documentation. Many books, reports and papers on parts of the system of land registration exist in every country. Some of these treat the subject from different angles, so even within this one method multiple sources of evidence are included. Archival records were only important as far as the number of parcels, owners, court procedures regarding landed property etc. In each country several interviews were undertaken with some (key) officials of the relevant organizations. The intended practical periods at the most relevant organizations, did not include a lot of direct observations on how the work is actually been carried out. He did spent about a day in the field in each country, observing, or even assisting, in the undertaking of a subdivision. The time he spent in offices of involved agencies and companies was mainly used to talk with the employees actually doing the work. Participantobservation is not really used, although he occasionally undertook some small activity himself (under direct guidance of course). In the field he did see how parcel boundaries are present in the terrain (physical artifacts), but this was not undertaken in a systematic way. Especially with the interviews there is the risk of elite bias (Hutjes/Van Buuren 1992: 60). This was experienced to some extent, but during the practical visits, especially in the field, he also spoke with more rank-and-file types of people. The greatest bias that occurred

The results of each case are laid down in an extensive case report, containing about 40 pages67, which consists of four parts:

•description;

•literature studied;

•persons interviewed.

•comments and update.

The first, and substantive, part contains five chapters:

•facts and figures

•technical aspects

•legal aspects

•organizational aspects68

•preliminary conclusions.

The first and last chapter are relatively short, and the bulk of the information is in the three other chapters. The structure of those chapters was prepared beforehand, in accordance with the main focus of this study being on the technical, legal, and organizational aspects (see § 1.1.3). Within each of the three types of aspects, topics have been identified to be used as headers for the paragraphs of the case reports. It is not easy to find a topic that only relates to one set of aspects, but at least most topics can be said to have a focus from one of those. It concerns:

technical aspects

•boundary determination

•data storage

•GIS

•digital networks

legal aspects

•land tenure (legislation)

•registration legislation

•general civil law

•information law

organizational aspects

•institutional

•registrar - cadastre

•government organization / private practitioners

•governmental or licensed surveyor

•role of notary

•daily practice - 'law in books'

•costs for users69

67This holds for the Netherlands, whereas Indonesia and Austria were slightly shorter and Ghana larger (due to two systems operating in the country).

68Originally an additional chapter called ‘some financial aspects’ was included, but since limited information relating to that surfaced, a paragraph ‘costs for users’ is added under ‘organizational aspects’ instead.

69Originally this was part of a separate heading ‘financial aspects (some)’.

5.3Concluding Remarks

The case study method is an appropriate methodology for collecting empirical data in this study. The systems approach introduced in chapter 4 already points in that direction. Use of the case study methodology has also been recommended for cadastral reform and development.

This case study is a multiple case study, consisting of four cases selected on the basis of maximum variance. The cases should not be seen as sampling units, and statistical generalization (as used with surveys) is out of the question. The results can be combined through what is called analytical or theoretical generalization. You generalize to theoretical propositions and not to populations or universes. Neglecting the difference with statistical generalization is one of the fatal errors regularly made when looking at case studies and their results.

Doing a case study right is not easy, and Yin especially gives many useful guidelines to work by. It is especially important to make your choices as early and as consciously as possible. A case is often so interesting and data rich, that it is easy to ‘drown’ in it and lose sight of the main objective of the whole study. On the other hand the case study method makes it much easier for unexpected information to be found by the researcher, and especially for interrelations to be visible.

The selection of cases in this case study aimed at maximum variance of the four cases to be studied. This was put in effect by defining five characteristics which should be present in at least one, and absent in at least one other case. Within these confinements, the final choice was made on the practical basis of cooperative contacts and base documents at TU Delft. The cases are: the Netherlands, Indonesia, Austria and Ghana.

To support doing a good case study, a case protocol has to be made before the actual cases are undertaken. Although the importance of that is especially great when more than one researcher will be involved, a case protocol was made for this study as well. An important element is the structure of the case reports, which was structured along the lines of the technical, legal, and organizational aspects. These reports each measure around 40 pages, and are not included in this study. The main points from them can be found in the next chapter.

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6 CASE STUDY RESULTS

In chapter 5 the design of the case study is described. In this chapter the results of the case study are presented in two ways. The main points of each of the cases are presented in § 6.1-6.4 and the overall results of the case study are presented in § 6.5. The former are presented in three ways as explained at the end of § 5.2.2. The latter take the form of a comparison of the cases and a cross case analysis.

One should bear in mind that the aim of the case study is not to come to an as good as possible and up-to-date description of each of the cases, the systems of land registration in the four countries studied. It is to have empirical material of the system of land registration as a whole in each country, with emphasis on the technical, legal, and organizational aspects and their interrelations. In order to get a general picture from the four cases together, there has to be a framework to fit this into, as was presented in the chapters 4 and 5. Nevertheless each case has its own story to tell, as can be seen in the differences in emphasis on certain points in the descriptions of each case.

6.1The Netherlands (1995)71

6.1.1 Functional Description

overview

All land has been brought under the system of land registration. This system consists of three information collections. These are the archive of deeds (‘public registers’), a parcelbased property register (‘cadastral register’) and an index map (‘cadastral maps’). All three are kept and maintained by the semi-privatized Agency for Cadastre and Public Registers (‘Cadastre’).

procedures

The transfer of property rights requires a notarial deed which has to be registered in the public registers. The notaries are organized as private practitioners with an extensive professional liability. The registrar has to register any notarial deed in the public registers, as long as it meets a few formal requirements, without checking whether the seller was the proprietor or whether there are any other problems. The same registrar, however, can refuse to update the cadastral register accordingly when he or she is not satisfied that the –registered– deed indeed has the intended legal effect. Due to the skills of and the cooperation between the notaries and the registrars the quality of the information in the cadastral register is very high, and it functions as a property register, although it is not backed by statutory guarantees and only by limited governmental indemnities.

identifiers

Each property is identified by a unique parcel number, which refers to a parcel on the cadastral map. It is mandatory to include this identifier in any deed relating to this property. The surveyors who work at the Cadastre undertake all boundary surveys, which only have a limited legal meaning. Boundaries are often not monumented, but usually their approximate position can be seen from physical features. In the case of a subdivision, one usually transfers a ‘part-parcel’ first, and postpones the subdivision survey for several months, until there are more surveys to be done in the same area. The reconstruction of boundaries in the field is not based on the cadastral map (with a relatively mediocre accuracy), but based on the original survey documents, which are kept as a fourth information collection (‘reconstruction archive’).

use of ICT

The public registers are still kept in an analogue form (paper or microfilm). The notaries and the Cadastre are, however, working on a system whereby the notary would register his or her deeds electronically at the Cadastre. The cadastral register has been kept digitally since the early 1990s, and all notaries and most local authorities, real estate agents and banks have on-line access to it. The digitizing of the cadastral maps was finished in 1997.

71For a full description see my Report on the case the Netherlands, Delft, May 1997/June 2002. The draft case report was also used as an important base for the report on the Netherlands by Prof.Dr. Theo Bogaerts as part of the Review of Planning Options, Cadastral System in Poland, Comparative Analysis of Cadastral Systems in Selected Countries, dated December 1997.

participants

The Dutch system of land registration is run by the Agency for Cadastre and Public Registers and the notaries. The Cadastre was semi-privatized in 1994 and now functions as a self-administering state body on a successful cost-recovery basis. There are 15 regional offices and about 2000 staff. There are 1250 notaries, working as private practitioners. They are appointed by the Crown when they have the right education and experience. They are united in a professional organization, which maintains and controls the quality of their work.

type of system

In the traditional classifications the Dutch system is a well improved ‘deeds registration’, combined with a cadastre in the Napoleonic sense. The boundaries are surveyed as indicated in the field by the neighbors (like with ‘fixed boundaries’). But this is usually done months after the ‘part-parcels’ have been legally created. It is unusual to erect boundary markers, and in general it is assumed that he boundaries coincide with topographic features (like with ‘general boundaries’). Parcels are depicted on index maps (a graphic cadastre). There are no title plans. The individual boundary survey sketches, however, may play an important role in reconstructing the ‘cadastral boundary’ in case of dispute (but when it comes to court this has only a limited meaning). The (supposed) owner does not get a ‘title certificate’, but he or she does get a copy of the registered transfer deed, which is stamped by the Cadastre.

practice

The Dutch system works well in practice, even though it has some theoretical shortcomings. Sensible administration has led to reliable information. It is doubtless supporting an active land market, with an acceptable level of legal security. There is a rather relaxed attitude towards the precise position of the boundaries. Boundary disputes occur rarely, but when they do there is little formal evidence to solve them.

6.1.2 Aspect Based Description

technical aspects

The national geodetic framework is well established and maintained. The cadastral surveys are done in relation to this. Although boundaries are often not monumented, many of them are visible in the terrain. The (graphical) precision of the cadastral maps is 28 cm for urban and 56 cm for rural areas, but for reconstruction in most cases the much more precise survey sketches can be used. The quality of the existing (digital) cadastral maps is very diverse. The survey work is performed with modern equipment, although by 1995 GPS was still used only for the national geodetic framework. All subdivision surveys are performed by surveyors working at the Cadastre, who also update the cadastral maps. In 1995 75% of the cadastral maps had been digitized.

The cadastral register is fully digital, and can be accessed on-line by notaries, municipalities, real estate agents, banks, etc. Almost 10 million information requests per year are made this way. The cadastral register also provides a data set that is often used by different authorities and some companies in many GIS applications.

legal aspects

The legal base for most of the system of land tenure is the Civil Code (originally from 1838, but modernized in 1992). The real rights listed in it are ownership, long lease (erfpacht), superficio (opstal), condominium (appartementsrecht), easements, and usufruct (three

forms), as well as mortgages (hypotheek).

The legal base for the system of land registration is found in the Civil Code and –since 1992– in the Law on the cadastre and the public registers. Several by-laws regulate the exact operations.

Transfer of a real right consists of two phases. The first phase deals with the transaction as such (‘title’), the second phase with the publicly visible activity (‘means of acquiring’). The latter consists of the drafting and signing of the notarial deed of transfer and the recording thereof in the appropriate public register. Legally the title changes hands the moment the deed is offered for recordation (rather unusual under a deeds system). If such a deed transfers a property which differs from an existing parcel, the Cadastre will –after recordation– arrange for its surveyors to inquire about the boundary, to survey the boundary, to update the cadastral map and to replace the temporary ‘sub-numbers’ with new cadastral numbers.

The causal doctrine is applied in the Netherlands, which means that problems in the ‘title’ are not repaired by recordation, although bona fide third parties can to a large extent rely on what is and is not present in the public registers.

The legislation on privacy does not apply to the system of land registration as such. All information in it is public, and any type of search is allowed. A more strict policy is applied to queries leading to certain types of selections.

organizational aspects

Dutch land registration involves the Cadastre and the notaries.

The 15 regional cadastral offices keep and maintain the public registers, the cadastral register and the cadastral maps (including the necessary surveys). Being a selfadministering state body gives it great freedom in the internal and financial set up. Nevertheless it operates as a law-based monopoly, and the fees are set by government regulations (on a cost-recovery base). ICT plays an increasing role in the operations, but the extremely ambitious plan ‘IT 2000', has been partly suspended.

The notaries not only legalize the deeds, they also check to see if all prerequisites for the intended transfer are in order. They will look at the underlying sales contract with a legal eye, they will check the cadastral register and the previous deed, and often several other registers as well (e.g. the public registers, the company register and the marriage register) and all the money will go through them. They have an ‘active care duty’ in all of this, and are liable for mistakes (they have mandatory indemnity insurance). In 1995 the number of notaries was still set by the government at approximately 1250, although many of them have several highly qualified staff (including candidate notaries who after a year can replace the notary in his or her absence). There is criticism of the high notarial fees and the lack of competition.

The cooperation between Cadastre and notaries is very good, and usually an occasional mishap by one is (formally or informally) reported by the other, and quickly solved.

The daily practice seems to surpass what one might expect from the ‘law in books’. Several of the (theoretical) ‘negative’ aspects of the system, are rarely –if ever– experienced in practice. Occasionally the description in the deed of a subdivision is rather vague, causing problems during the inquiry and survey in the field. This can be aggravated in cases where this field visit takes place long after the deed was signed (although the severe backlogs in several offices have been solved). But even in such cases notary and Cadastre usually manage to find a workable solution.

6.1.3 Developments

After the case study in 1995, the revised Notary Law was enacted. The number of notaries is no longer set by the government, and any candidate notary with six years experience can now make a business plan to become a notary. If the plan is acceptable, he or she will be appointed a notary. The fees are no longer fixed, but should (still) be within a prescribed range. Although this allows for more competition, so far only a few ‘price fighting’ notaries are active.

The Cadastre has finished digitizing the cadastral maps, and has created the (technical) infrastructure which allows notaries to submit the deeds of transfer electronically. Due to general developments in E-government and E-business (incl. the electronic signature), the necessary changes to the law have been stalled. The Cadastre has suspended the redesign of its databases.