System of Deeds Registration and Land Title Registration - Essay Example

Property Law: Comparative Analysis of the System of Deeds Registration and Land Registration Introduction: "Civilized living in market economies is not simply due to greater prosperity but to the order that formalized property rights bring" (Hernando de Soto, 1993).1 These quotes tell us about the significance of institutionalization and formalization of property rights. The most valuable property at all times is land. This tells us the importance of land administration systems forming the base for economic development. When land is considered as an asset, the security will be demanded for the rights on that land. The way we see the property (land) and the sources exist paves the way for developing reasonable legal and technical processes. The mapping and other processes must be completed to accomplish above thoughts. In this paper we discuss and find the importance of the methods of registration and find the reasons for the significance of title registration when compared to deeds registration. This paper looks at the differences between the both the types of registrations and the information and management that is needed for executing the title registration. The International Federation of Surveyors (FIG, 1995) defines a cadastre as a "parcel based and up-to-date land information system containing a record of interests in land (e.g. rights, restrictions and responsibilities). It usually includes a geometric description of land parcels linked to other records describing the nature of the interests, ownership or control of those interests, and often the value of the parcel and its improvements."2 The cadastral systems are maintained in various manners all over the world, in particular to land administration and registration. The basic type of registration systems found was deeds and title registration. The differences between these two systems were connected with the judicial system of the country. As every body know that in the deeds registration, the transaction only is recorded whereas in the title registration the title is taken into consideration. The deeds system focuses on what the owner owns and the title registration focuses on the things owned by the owner. The deeds registration prevails in the Latin countries in Europe like France, Spain, Italy and the countries influenced by them. Here the role of cadastre and surveyors differ significantly. The title registration finds its roots in Germany and is found in different form in UK along with central European countries. In the UK system the boundaries are used to identify the land chunks on a large scale land mass. Other than German and Britain origins the title registration also has third type of it in Australia introduced in 1858. It was called as Torrens system as it was introduced and developed by Sir Robert Torrens. It was being implemented in NZ, some states of Canada and in some countries of Asia and Africa. The classification based on deeds and title systems depends on number of other contexts. The processes of formation of property transfer relating to the actors and agencies involved and also relating to the out come of the process of accessing and recognizing right on land. In order to compare the four types of issues can be considered. They are 1. Definition of Property in legal, economical and physical concepts. 2. The determination of property with certainty in boundaries. 3. The process involving the formation of property by institutions and actors and the role of surveyors. 4. The processes, agencies and the persons involving in property transfer from one person to another and its legal consequences. Efficient management of land is the process in the operation of executing the land policies. In a number of countries land tenure rights were separated from land use rights. This separation is clear in the case of title registration following countries. As there are only transactions between the buyer and seller in deeds system and comprehensive details in title system the cadastral systems mentioned above will make clear that the reforms regarding cadastral can be best adapted and can be executed in the judicial system having title registration. Deeds registration system is found in common law jurisdictions. Torrens title replaced this in number of cases. In title system the person termed as owner of a chunk of land will have an indefeasible title of that piece of land while as in deeds system the important instruments related that piece of land is registered. To establish the title of the land to a person the title documents must be executed properly, the chain of title must be given which involves the ownerships from the granting of the land from the government to the seller. In contrast to the title system in deeds system the registry is just a record of instruments regarding the land. This may not mean that the owner has a title. In the sale and purchase transactions the seller must show a title to the buyer. The land search record is not decisive and may lead to the problems when the land is old and contains multiple attachments. When a good title is not shown the process may result in legal tangles. In case of common law environment the owners are asked to prove their ownership of the land parcel from the day of granting of the land by the government to them. These documents can be termed as title deeds. In the absence of title registration system the person's ownership was frequently challenged and both seller and buyer may face problems regarding the transactions and the legal tangles that follow. These tangles in which occur frequently in deeds registration environment can be termed as lawyer friendly as they find good amount of work and job in dealing these cases. The presence of just instruments and not titles in deeds registration system results in challenging the transaction in courts frequently. This results in slow pace of land transfer and even make the transactions expensive. Robert Torrens in 1858 introduced a title system in South Australia and the registry of all land inserted in Real property act 1886. This made all the transfers of the land between different people registered paving the way to resolve the uncertainties in deed system. It even recorded the details of mortgages. In the beginning the introduction of the new system received severe criticism particularly from lawyer community as they feared loss of work due to lesser number of cases which is a result of the simplicity and clarity in the system. The owner or the joint owners of the land were given indefeasibility of title according to the title registration. Different states in Australia, Canada, US and different countries have different laws and statutes. The indefeasibility of the title is clear by the Transfer of Land Act 1958. Upon registration of their interest and subsequent recording on title of their interest, the registered owner's claim to their interest in that land is superior to all other interests in the land other than the circumstances.3 In number of countries which adopted the title registration the land management systems were modernized and were according to the provisions of the title registration systems which provide greater security to both the buyer and seller of the land and results in speedy transfers and transactions. "Regional, municipal and local plans have to be submitted for public debate and for public inspections and objections before final adoption. This provides for public participation in the planning process at all levels."4 This type of planning is a result of introducing of title registration system which makes all the things and records regarding different land pieces recorded and makes the process of the registration and maintenance of the land simple and clear. Considering the Cadastre of Denmark, it was set up 150 years back to cover total of 1.5 million properties. In order to implement the title registration system the register of pieces of land, register of control points and archive of the legal survey measurements and the maps were prepared and computerized. The rights of the owners and mortgage transactions are recorded at local courts. All the registers of property date have been computerized. This makes implementation of title registration system easier. Like wise in Denmark all the European countries and other countries which are implementing are maintaining the records of parcels of land and the owner ship details along with mortgage transactions computerised for adopting title registration system. Another context which made the registers, records and transactions transparent due to the implementation of title registration is Nova Scotia of Canada. The province has completed the transition to new land registration system which gives assurance to the owners and buyers of land pieces that they are really owners. It assures the ownership to the owners. It passed a Land registration Act on 24-03-2003 and was completely implemented in all counties by 2005. As the title registration was being implemented the conversion of 558,000 pieces of land will improve. The value transfers, mortgages and other dealings along with the issuance of land titles, clarification certificates were undergoing in greater pace. This implementation of title registration system is to enhance the clarity and simplicity of land management and administration and to decrease the legal tangles regarding the transactions and owner ships of the land. After examining the various countries and contexts of implementing the title registration now it is turn of UK. The land registration act 2002 and land registration rules 2003 replaced the law for land registration. From then these act and rules are governing the practice of land registration. The achievements anticipated for the land registration act 2002 are as follows. 1.The simplification and modernisation of registration law, which can make the register of registrations a more clear picture of a title. 2. This will provide infrastructure for the development of electronic transformation of data. The major changes that occur to the law and practice that deal with the registration land are 1. Short time leases also should be registered. 2. Voluntary registration is available 3. The changes in the acts and rules will enhance the protection of third party interests. 4. The law regarding the adverse possession rights has been reformed, paving way for legalizing them. 5 Conclusion: When deed registration system and title registration system were compared and analyzed the out come was that the title registration system is more simple and clear than the deed registration system. The implementation of title registration system is making many countries and provinces to reform their laws or replace the old ones with new ones, which enhance the simplicity in transactions and clarity in owner ship issues regarding land. By examining the reforms and enactment of laws and the enhancement of land management systems, modernizing the land administration systems in many countries, it can be observed that the title registration system is bringing the reforms in land management, land administration and making things easier and proper in the liberalized economies and developing countries. Due to the compulsion of issuing title to the owner and lessening the period of the enquiry regarding the past owner ships the title registration is more simple and faster in transactions than the deed registration system. Due to the enormous transactions that are taking place and about take place due to the increasing population and needs the deed registration system poses the problem of legal tangles in land transactions. The replacement of title registration is preferred and that is better system as it involves the 'chain of titles' in transactions, which is absent in deed registration. The referencing was done as per the instructions given on the web page suggested by the guidelines document and as follows: Author, Title (Year), Website name Date of retrieval. 1. Committee on Human Settlements, Report on the First Session, 1999, http://www.unece.org/hlm/wpla/sessions/1st%20session/p7-99-2e.pdf, 15-08-06. 2. Stig Enemark, Building Land Information Policies, 1996, http://www.plan.aau.dk/enemark/Kursusmateriale/Mexico%20KeynotePaper%20SEFinalVersion.pdf 3. Media Wiki, Deeds registration, 2006, http://en.wikipedia.org/wiki/Deeds_registration, 15-08-06 4. Media Wiki, Torrens title, 2006, http://en.wikipedia.org/wiki/Torrens_title, 15-08-06. 5. UN Escap, 2003, http://www.unescap.org/huset/m_land/chapter8.htm, 15-08-06 6. Stig Enemark, Planning System in Denmark, spatial Planning System in Denmark April 2002, http://www.ddl.org/thedanishway/spatial_02.pdf, Read More