Systems of Land Registration Aspects and Effects. Research study of Zevenbergen Year:2002

Transcription

1 Systems of Land Registration Aspects and Effects Research study of Zevenbergen Year:2002

2 Research outline Land registration is viewed as the whole complex of process of recording (dynamic) and the collection (static) of information on the (legal) tenural relations between persons and land. In this study the technical, legal and organisational aspects are given the main emphasis. It is assumed that the technical, legal and organisational aspects, and especially the way they do interrelate (or not) have a great impact on the way land registration is functioning in any given country. All of this is studied with the main focus more on the point of view of the legal security for the owner and purchaser of land than on the importance of land registration for the government (like for land management and land taxes). A system of land registration is functioning well when this legal security is offered in an adequate way which not only includes the assurances given but also the speed offered and the fee charged. To determine if a system of land registration is functioning well, this study uses the (qualitative) level of trustworthiness of the system, and not any quantitative criterion.

3 Research methodology Looks at systems of land registration Focus on technical, legal and organisational aspects and their interrelations and effects on the functioning of systems of land registration Comparative study was done in respect of four countries viz., Netherlands, Indonesia, Austria and Ghana.

4 Answers to the research questions

5 1) What is land registration and how it has developed? Land Registration can be described as the process of recording legally recognised interests (ownership and/or use) in land. It links together the owner, right (title) and parcel. (Mc Laughlin/Nichols). Three types of transaction evidence can be identified viz., oral agreement; private conveyancing; and title registration. Only the last two really constitute the land registration. Units of land have to be made separately identifiable in one way or another. Example through the use of cadastral or index maps and identifiers. Although the emphasis is on the differences between the systems in different countries, several often used principles and features exist. Important list of principles: Specialty, booking, consent and publicity principles. Important list of features: security, simplicity, accuracy, expedition, cheapness, suitability to its circumstances and completeness of record. These features are said to reflect the expectations of the society has on the system of land registration. They are summarized in the trustworthiness of the system. Development Line (historical) development. Large parts of this line can be found through time in most countries.

6 2) What classification of (parts of) systems of land registrations are used, and how usable are these? Negative vs positive systems Race vs notice statutes Parcel identification systems Fixed vs cadastre Title registration vs deeds registration The differences are mainly caused by how the system deals with differences between abstract concept and the reality on the ground. Ultimately, it is more important that the system has clear rules for the most apparent cases of such differences than how these rules read.

7 3) What is the systems approach, and how can it be used to (conceptually) model systems of land registration?

8 Study s question How do the technical, legal and organisational aspects and their interrelations affect the way a system of land registration is able to provide adequate legal security to owners and purchasers of real property within a given jurisdiction?

9 Answer to the study s question The interrelations between the technical, legal and organisational aspects are so strong that in the context of this study only the overall effect can be determined to the level of trustworthiness, and we thus have to assume that the aspects affect the system fulfilling its goal together as a whole.

10 conclusions When the organisational and technical aspects are well taken care of, weak legal aspects can be overcome. When the technical and legal aspects are well taken care of, bad organisational aspects will still be a great problem. When the legal and organisational aspects are well taken care of, bad technical aspects can be overcome. Organisational Technical Legal End result Yes yes No acceptable Yes No Yes Acceptable No Yes Yes Problematic

11 End result in nutshell Whereas the flaws in technical or legal aspects can be overcome when the other two aspects are well taken care of. Flaws regarding organisational aspects will quickly render the land registration inadequate. These results are in line with a review of World Bank supported land titling projects that confirmed what most project implementers know that the institutional dimension is a most or the most demanding aspect of titling projects.