land registration systems many types based on legal, organisational, procedural and information...

LAND REGISTRATION LAND REGISTRATION SYSTEMSSYSTEMS

• 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 - TITLE REGISTRATION - HISTORYHISTORY

• 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 TITLE REGISTRATION PRINCIPLES 1PRINCIPLES 1..

• No need to go behind the Register.

• Bona fide purchaser for value acquires indefeasible right regardless of prior title.

TITLE REGISTRATION TITLE REGISTRATION PRINCIPLES 2PRINCIPLES 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 – TITLE REGISTRATION – DIFFERENCES 1DIFFERENCES 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 – TITLE REGISTRATION – DIFFERENCES 2DIFFERENCES 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 – TITLE REGISTRATION – DIFFERENCES 3DIFFERENCES 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 - TITLE REGISTRATION - EVOLUTIONEVOLUTION

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 REGISTRATIONTITLE 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 REGISTRATIONEFFECT 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

INDEFEASIBILITYINDEFEASIBILITY• “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 INTERESTSOVERRIDING 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 INTERESTSUNREGISTERED 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 & STATE GUARANTEE & INDEMNITYINDEMNITY

• 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 REGISTERCOMPILATION 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 MAPPING/SURVEYING ASPECTSASPECTS

• 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 TITLE REGISTRATION FEATURES 1.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 TITLE REGISTRATION FEATURES 2FEATURES 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 TITLE REGISTRATION FEATURES 3.FEATURES 3.

TITLE REGISTRATION TITLE REGISTRATION FEATURES 4.FEATURES 4.