Transcript Document

LAND REGISTRATION
SYSTEMS
• Many types based on legal,
organisational, procedural and
information management distinctions.
• From legal perspective – deed registration
and title registration.
• In reality many variations between the
two.
• Therefore it is important to consider the
needs and conditions within a particular
jurisdiction.
TITLE REGISTRATION HISTORY
• Most early property recording systems
based on deeds.
• However title registration in parts of
German Europe from 7th century.
• Title registration began in Australia
(Torrens) and England in 1850’s.
• Systems have gradually spread to other
countries around the world.
TITLE REGISTRATION
PRINCIPLES 1.
• No need to go behind the Register.
• Bona fide purchaser for value acquires
indefeasible right regardless of prior
title.
TITLE REGISTRATION
PRINCIPLES 2.
• 1. Curtain principle – take register at face
value – no need to go behind.
• 2. Mirror principle – Register should
reflect true state of title with all facts.
• 3. Insurance principle – compensation if
loss suffered due to system (not always
adopted).
TITLE REGISTRATION –
DIFFERENCES 1.
• The English Group: England, Ireland,
Scotland, some Canadian provinces, Nigeria.
• The German/Swiss Group: Germany,
Austria, Egypt, Turkey, Sweden, Denmark.
• The Torrens Group: Australia, New
Zealand, some provinces of Canada, some
parts of USA, Morocco, Tunisia, Syria
TITLE REGISTRATION –
DIFFERENCES 2.
A better attempt to categorize title registration
systems on more realistic points would be:
• whether or not registration carries a state
guarantee and indemnity;
• whether rectification of the registration
on ground of error, fraud or adverse
possession is allowable;
• on differences in maps and survey and in
the methods of initial compilation.
TITLE REGISTRATION –
DIFFERENCES 3.
The mapping/surveying aspect differs
between the 3 groups i.e.
• the English group makes use of large
scale ordnance survey maps,
• the German group of parcel-based
cadastral maps, and
• the Torrens group makes use in principle
of incidental survey plans.
TITLE REGISTRATION EVOLUTION
Existing systems and differences not static but
subject to major reviews and changes – e.g. –
• England – English Law Commission Report 271 –
Land Registration for The Twenty-First Century
2001- Land Registration Act 2002
• Scotland – Scottish Law Commission – Report on
Land Registration - February 2010 – Draft Law
• New Zealand – New Zealand Law Commission –
Review of the Land Transfer Act 1952 – October
2008
TITLE BY REGISTRATION
• Title rests on the act of the Registrar in
registering a document rather than the act
of the party executing the document.
• It is not the parties who effectively
transfer the land, but a State official
acting under statutory authority, and in
some circumstances more fully than the
parties could.
EFFECT OF REGISTRATION
• Validity.
A document is not effective to pass an interest
until it is registered. On registration an
“indefeasible interest “ is created.
• Priority.
As between registered dealings priority is
governed by order of registration, not by date
of execution.
Order of registration is determined by order of
lodgment for registration
INDEFEASIBILITY
• “Indefeasible title” is a title that cannot be set
aside on the ground of a defect existing in the
title before the interest was registered.
• The proprietor holds subject only to interests
noted in the register and “overriding
interests”.
• Fraud by the registered proprietor abrogates
the principle
• However the concept of indefeasibility varies –
it may be “immediate” or “deferred”.
OVERRIDING INTERESTS
• These are rights which do not appear
on the register but will nonetheless
bind any purchaser.
• Usually specified in the registration
law.
• Adverse possession may apply.
UNREGISTERED INTERESTS
• Unregistered dealings with land may be
protected prior to registration by
systems of caveats or notices which
allow priority to be maintained.
STATE GUARANTEE &
INDEMNITY
• Guarantee is of either the land or
monetary compensation.
• Guarantee does not apply to boundaries.
• Indemnity is the way of compensating an
innocent victim who suffers from reliance
on the register.
• Compensation may be sourced from
special fund, consolidated revenue or
private title insurance.
• Not provided in some systems.
COMPILATION OF REGISTER
1. Voluntary conversion
2. Compulsory transaction based
conversion
3. Compulsory transaction based
conversion on an area by area basis
4. Systematic conversion
5. Qualified or provisional title
6. Automatic conversion
MAPPING/SURVEYING
ASPECTS
• A key characteristic of title registration is
the clear, unambiguous definition of a
land parcel.
• But surveying and mapping of parcel
boundaries can be undertaken with
cheap, cost-effective methods, rather than
expensive high precision methods.
• For registry index maps completeness
and currency are more important than
accuracy.
TITLE REGISTRATION
FEATURES 1.
• Land register is a record of all interests in
individual land parcels.
• Simple pro forma documents used for
transactions with land.
• Documents are checked for validity
• Registered by a recording in land register.
• Certificate of title may be issued.
• Documents are archived.
• Check of title by current details in
register.
• Land register supported by cadastral
maps.
• Title search based on location of land.
TITLE REGISTRATION
FEATURES 2.
Form of the register ( generally
common to all jurisdictions) –
• The property (description of the land
and the estate).
• The proprietor (names, address and
descriptions of registered proprietors)
• The other rights and interests
(mortgages, leases, easements,
restrictive covenants).
TITLE REGISTRATION
FEATURES 3.
TITLE REGISTRATION
FEATURES 4.