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Principles to be followed in the preparation and maintenance of records of rights.

The actual details of the process of registration of rights will vary so greatly in accordance with local circumstances that no useful purpose would be served by trying to outline a suitable procedure in general terms. There are, however, a number of principles of general application which will be found greatly to assist the execution of any procedure that may be adopted.

The first is to recognize the need for adequate maps. No system of registration of rights will be successful without the support of an adequate series of cadastral maps. Even the simplest system of voluntary registration will be greatly strengthened and facilitated through the standard and accurate means of description that these maps alone can supply.

The second is to recognize that ultimately every system of registration should become compulsory. Only by compulsion can the universality on which the full advantage of registration depends be obtained. If a system of voluntary registration is introduced at the first instance, it should be regarded as part of the necessary educational process designed to prepare public opinion for compulsory registration.

The third essential is that a system of registration will only be fully successful if it is supported by Public Opinion, and public opinion must thus be educated to accept the system. Education may consist largely in the dispelling of doubts and fears, but much may be done by intelligent propaganda by the government to indicate the advantages of registration to the individual and to the local community. The institution of a voluntary system may be a valuable part of such promotion. The previous existence of a system of registration of documents, including deeds, may also be very helpful. The form of promotion will, however, necessarily be determined by the nature and reality of the doubts and fears mentioned above. Methods of increasing confidence in registration include the association of interested members of the public with all stages of the initial registration, and the holding of enquiries and examination of claims on the land or in nearby villages rather than in distant towns. There must also be procedures for appeals against the decision of registering officers at all stages of the enquiry and not merely when registration is complete. In most countries where there are small holdings it will be found that local enquiries and local facilities for making and examining claims will be absolutely essential to success.

The ultimate aim of registration should be to secure a complete and indefeasible record of all rights held. To ascertain absolute title by a single inquiry may, however, be very difficult and in practice a record based on presumptive title has been found rapidly to acquire all the essential features of one based on absolute title. The most suitable procedure may thus be to aim at the best results that can be secured by a careful local inquiry into present facts of possession. Such an inquiry should be preceded by widespread notification of the intention to hold it and should include a careful examination of all evidence produced in close consultation with local opinion.

The less “developed” a country is, the more immediately effective this inquiry will be. In most “underdeveloped” countries all the facts about individual and communal rights in land are usually well known and understood by the local people. It is merely a matter of eliciting these facts, a process which however may demand much patience and will certainly demand much local knowledge and experience. When a register has been working for a few years its essential accuracy or lack of accuracy will soon become apparent. A term can then be placed on outstanding claims, if desired, by means of a statute of limitations and the record thus made absolute. Nothing of this kind may, however, be necessary, and probably will not be necessary once the record becomes established that presumptive evidence of such weight cannot be rebutted except in most unusual circumstances.

A special difficulty in dealing with communal tenures may be the right of members of the community who have left it to resume their rights on their return. The existence of this right is a special reason for the most careful local inquiry among influential members of the society. Mere reliance on claims actually presented in person may cause serious error. This is, of course, true in other cases also.

Besides the public notification of intention to register mentioned above, personal notices should be sent, as far as possible, to all persons likely to have a claim on the land. Where land taxes are assessed, such notices may be attached to tax demand notes or despatched separately to those who have been assessed on the basis of the revenue records. Existing registers of deeds and other public records of transactions in land may also be used to assist in reaching all possible claimants.

The sites of registration offices should be chosen so that registration of mutations will cause the least possible inconvenience to members of the public. The number and distribution of these offices will depend on the size of holdings and the social and economic status of rightholders. In a country of large holdings where transactions in land are few and important, a relatively small number of offices at main centres of population may suffice. In a country of smallholdings, many small local offices will be necessary and there are great advantages in periodic tours of the lands themselves by registering officers. These small local offices and tours will certainly be necessary in any case where small tenancies fall within the scope of registration.

Many countries that have no system of registration of land have a well- established system of registration of certain classes of documents including deeds relating to transfers of rights in land. There may be good reasons for continuing the separate registration of deeds, which normally includes the making verbatim of a copy of the document registered, even after a system of registration of land has been adopted. This need not and should not mean duplication of work. In fact the double system may have considerable practical advantages. Most deeds are executed in fairly large centres of population which may be far distant from the place where the land is situated. A localized system of land registration may thus cause inconvenience to some persons concerned in a transaction, as compared with the registration of a deed which need not be localized. Every such inconvenience hinders the effectiveness of a system of registration. In many systems, whenever a deed affecting the land registers is registered, a docket giving the essential information is forwarded as a matter of course by the registrar of deeds to the land registry concerned. In the absence of computerization, this is a most useful method of ensuring that the land registers are kept uptodate. The same procedure may be applied in respect of decrees and other orders of civil courts, land courts, etc.

The success or failure of a system of registration will depend on the completeness and promptness with which mutations are reported. (By “mutation” is meant any changes that affect entries in the registers, such as changes in the land, in the conditions under which it is held or in the holder of the rights.) During the earlier stages of registration, there are likely to be many delays and omissions in reporting mutations, especially those that do not involve a formal transaction, and such delays and omissions will never entirely cease, at least in underdeveloped countries, if the duty of reporting is left entirely to the initiative of the persons affected. It must be remembered for instance that in countries where customs of inheritance prescribe absolutely the succession to landed property, there is no question of the formalities attached to the proving of a will and that in such countries land will frequently change hands without formal documents of any kind. Again many small sales, mortgages, leases, etc. may be made without written records of any kind. In these circumstances, the habit of prompt reporting may be very difficult to inculcate. Legal penalties and disabilities, though probably necessary to deal with a few cases of wilful failure to observe the law, will usually be ineffective and are certainly objectionable expedients for use in cases of mere public apathy or lack of understanding.

In general, prompt reporting of mutations will probably be best achieved by applying the following principles:

  1. That, as far as possible, mutations should be brought to the notice of the registering officer automatically or in the course of ordinary routine.

  2. That, where reports must depend on the initiative of individuals affected by the mutation, it should be made as easy as possible to make these reports by siting local registration offices conveniently for the persons who will use them and by periodic tours of registering officers within their charges.

  3. That entries in registers should be checked periodically by inquiries in the field (for instance by registering officers during their tours, by cadastral surveyors engaged in checking and revision of the maps, etc.)

Whatever system of registration is adopted it is important that the procedure should be as simple as possible. There are two strong reasons for this: first, the system should be easily comprehensible to the landholders themselves; and second, especially in underdeveloped countries, the operation of the system should not demand a staff with high educational qualifications.

Registers of Rights are quite different from Registers of Deeds in that they need not contain copies of long instruments of transfer. They can therefore be reasonably compact in form, and must be, if they are to be used for field work. The loose-leaf form is usually the most convenient. As the register is related to a particular map it has usually to be rewritten if a new survey is carried out. The old registers and maps are then placed in the archives, either in the record room or computer archive, and continuity between old and new assured by preliminary cross-references in the new registers. Duplicate registers and back- up copies of computer files provide a safeguard against loss or damage. Copies may often conveniently be prepared on microfilm and for this purpose the loose- leaf system has great advantages. With computerized systems, regular backing up of the files must be undertaken.

The current maps and registers should be open to public inspection without charge. Inquiries involving the searching of old records can on the other hand be charged for. Holders of individual rights may also suitably be entitled to a free copy of those parts of the current map and of those entries in the current register that relate to their lands. In other cases, copies should be charged for.

Where a system of land taxation exists, the cadastral survey and record of rights are usually the basis of the tax assessment, and in fact most of the older cadastres were prepared primarily for fiscal purposes. This use of records is not essential, but the combination of the two sets of records has obvious administrative advantages since it provides both government and right holder with an incentive to keep the record accurate and uptodate, and immediately justifies the expense of maintaining the records.

The use of the records for revenue purposes, however, necessarily introduces complications into the system, which need not be pursued here beyond saying that the record may have to become a record of land values, rental values, or crop yields as well as a record of rights and may also embody a system of classification of land for fiscal purposes.

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