4.A.1 Adjudication
Adjudication is the process of final and authoritative determination of the existing rights and claims of people to land. This may be in the context of first registration of those rights, or it may be to resolve a doubt or dispute after first registration. Adjudication is also a standard procedure prior to the operation of a land consolidation scheme.
The process of adjudication should simply reveal what rights already exist, by whom they are held and what restrictions or limitations there are on them. In practice, of course, the mere fact of a final and definitive recording of these rights is a significant change in those jurisdictions where previously there had been uncertainty.
The process of adjudication may be sporadic or systematic, as with registration. Sporadic adjudication is a parcel by parcel approach, usually triggered by some specific event, like the sale of the property. Depending on the jurisdiction sporadic adjudication will then involve demonstrating that the title is basically sound before it is accepted and entered into the registration system. UNECE, 1996
4.B.1 Boundary / Perimeter
Périmètre (F); Perímetro (E)
The International Federation of Surveyors (FIG) defines boundaries as follows:
“Boundaries of parcels can be defined by physical demarcation on the ground or by a mathematical description usually based on a co-ordinate system. The accuracy and cost of cadastral surveys is dependent on the accuracy needed for boundary descriptions. The accuracy should reflect factors such as the value of the land, the risk and cost of land disputes and the information needs of the users of the cadastre.” FIG, 1991
It is often the case that the boundary will be physically demarcated (e.g., by markers such as pipes, pegs, etc.) even when a jurisdiction uses a coordinate system to describe the position of the boundary. Coordinates tend to refer to physical objects on the ground and not to abstract positions.
A principal difference between boundaries is whether:
> the entire length of a boundary is demarcated by a physical feature (e.g., a river [centre or either bank], ridge, wall, or hedge, etc.)
> only the bend points of the boundary are demarcated by physical points (often referred to as monuments, beacons, etc).
This difference is often raised as the clash between “general” and “fixed” boundaries in a debate that has long plagued the English-speaking community. This debate often ignores the fact that so-called “general” boundaries such as rivers do exist in so-called “fixed” boundary jurisdictions. In one sense, fixed boundaries are no more fixed than general boundaries; they are merely delimited more precisely.
Regardless of the nature of the boundary, the documentation of the boundary position should be sufficient to allow the boundary to be relocated should it somehow be destroyed.
4.C.1 Cadastral administration
Administration du cadastre (F); Administración catastral (E)
The cadastral administration in any given jurisdiction is the organisation (or organisations) responsible for creating, maintaining and dealing with the cadastre.
There is a wide range of experience throughout the world. Although it is most common for the administration to be established and managed by traditional government departments, there are instances where such agencies have become self-financing, such as the Netherlands Kadaster. In some countries cadastral issues are the responsibility of local governments, in others they are national, but may be administered under one or more different ministries. The most common ministries with cadastral responsibilities are probably the Ministries of Justice, of Finance and of Agriculture. MANTHORPE, J., 1997
4.C.2 Cadastral register
Registre cadastral (F); Registro catastral (E)
The term “cadastral register” may include registers for any of the different types of cadastral system identified in the definition of the cadastre.
4.C.3 Cadastre
Cadastre (F); Catastro (E)
The International Federation of Surveyors (FIG) defines the cadastre as follows:
“Acadastre is normally a parcel based and up-to-date land information system containing a record of interests in land (i.e. rights, restrictions and responsibilities). It usually includes a geometric description of land parcels linked to other records describing the nature of the interests, and ownership or control of those interests, and often the value of the parcel and its improvements. It may be established for fiscal purposes (e.g. valuation and equitable taxation), legal purposes (conveyancing), to assist in the management of land and land use (e.g. for planning and other administrative purposes), and enables sustainable development and environmental protection.” FIG, 1991
Different countries use the term cadastre differently and this is a cause of real confusion. UNECE, 1996
4.D.1 Decentralised resource management
Instances décentralisées de gestion des resources (F);
Instancias decentralizadas de administración de recursos(E)
Decentralised resource management is the principle of delegating policy-making in resource management to the lowest effective local levels of public authority.
The concept of decentralised resource management is one that has been significantly promoted as a result of the UN Commission on Sustainable Development’s Agenda 21, and is being taken up increasingly around the world.
4.D.2 Deeds registration
Deeds registration is a system of proof of property ownership and interests based on the registration of transfer and other deeds.
In an official deeds registration system, a copy of the relevant deed, for example a transfer deed, is deposited in the deed registry. An appropriate entry is then made into the register of the time, date, parties and transaction, as may be required by the particular jurisdiction. The documents generally require to be checked by a notary or an authorised lawyer to assure the validity of the transaction and entry.
This transaction reference, together with the supporting deeds, then provides evidence of the vendor’s right to sell the property. The deeds registration system is limited in that it does not provide a guarantee of title. It does not provide the clarity, certainty or guarantee required for an ideal system. All that it typically provides is access into the chain of transactions that can be used to prove title.
4.L.1 Land Book
Registre ou livre foncier (F); Registro (E)
The Land Book system (Grundbuch), most commonly associated with Germany, is a system of title registration that is broadly followed in the German states, in Austria and Hungary and in those regions influenced by their respective former empires. The Grundbuch is under the administrative responsibility of the district judge, and is implemented by a full-time professional registrar. Each folio of the Grundbuch, as found in Bavaria, for example, consists of four parts, comprising respectively a description of the property, the name of the proprietor and how the parcel was acquired, details of any servitudes, and, finally, details of any charges such as mortgages. ROWTON SIMPSON, S., 1976
4.L.2 Land certificate
A land certificate is a certified copy of an entry in a land title system and provides proof of the ownership and of encumbrances on the land at that time.
4.L.3 Land charge
A land charge is a right in respect of land.
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A land charge is registrable in England and Wales under the Land Charges Act, 1972. This is intended to reduce the number of interests affecting the land which would otherwise fall out of the registration system. The charges that are registrable include:
CARD, R., MURDOCH, J., SCHOFIELD, P., 1994 |
4.L.4 Land commissions
Commissions foncières(F); Comisiones de bienes raíces (E)
Land commissions are formally constituted bodies to investigate land related issues, or to implement some aspect of land policy, such as adjudication.
4.L.5 Land dispute
Conflits fonciers (F); Conflictos de tierras / Problema de la tierra (E)
A land dispute is a disagreement over land. Aland dispute occurs where specific individual or collective interests relating to land are in conflict.
Land disputes can operate at any scale from the international to those between individual neighbours. At whatever scale, the dispute is likely to owe as much to the general nature of neighbourly relations as to actual problems relating to the land.
Land disputes may arise from a wide range of different situations and are commonly found where there is intense population pressure on land, where different types of land use abut or overlap one another, and where boundaries are not well demarcated. The following are cited as possible causes of land conflicts in HUSSEIN, K., 1998: over access to pastoral resources and damage to crops between herders and farmers; over grazing and watering areas between different groups of herders; where customary boundaries are poorly defined between neighbouring communities; between migrant and indigenous farmers; where expanding cities place pressure on peri-urban areas between the urban elites and peri-urban populations; where population pressure reduces the sizes of holdings below uneconomic levels; and where state allocations of land for forestry or large scale development schemes conflict with customary landholders interests. LEONARD, R., and LONGBOTTOM, J., 2000
Land conflicts may be resolved in a variety of ways. In parts of South Asia, for example, in Sri Lanka, land conflicts may be the subject of court cases that are inherited from generation to generation. In parts of the Highlands of Papua New Guinea, physical conflict between tribes may evidence land conflicts. In parts of Africa the land chief may have an important role in resolving land disputes.
4.L.6 Land Information System (LIS)
Système d’Information Foncière (SIF) (F);
Sistema de información de bienes raíces (E)
Land Information Systems (LIS) have been defined by the International Federation of Surveyors (FIG) as follows:
“... a tool for legal, administrative and economic decision-making and an aid for planning and development. A land information system consists, on the one hand, of a databse containing spatially referenced land-related data for a defined area and, on the other, of procedures and techniques for the systematic collection, updating, processing and distribution of the data. The base of a land information system is a uniform spatial referencing system, which also simplifies the linking of data within the system with other land-related data.” UNECE, 1996
4.L.7 Land register
Registre de la propriété (F); Registro de la propiedad / Certificado detradicióno libertad /Tracto sucesorio o sucesivo (E)
The land register is the definitive record of all registered properties, and comprises the registered details for each property.
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In the land register for England and Wales, there are three registers or parts to the register; the Property Register, the Proprietorship Register and the Charges Register. These contain respectively:
ROWTON SIMPSON, S., 1976 |
4.L.8 Land registration
The International Federation of Surveyors (FIG) defines land registration as follows: “Land registration is the official recording of legally recognised interests in land and is usually part of a cadastral system. From a legal perspective a distinction can be made between deeds registration, where the documents filed in the registry are the evidence of title, and registration of title, in which the register itself serves as the primary evidence.” FIG, 1991 The benefits brought about by instituting a system of land registration need to be viewed in context. “Land registration must be kept in perspective. It is a device which may be essential to sound land administration, but it is merely a part of the machinery of government. It is not some sort of magical specific which will automatically produce good land use and development; nor is it a system of land holding (land tenure); it is not even a kind of land reform, though it may be a valuable administrative aid to land reform. In short, land registration is only a means to an end. It is not an end in itself. Much time, money and effort can be wasted if that elementary truth is forgotten.” ROWTON SIMPSON, S., 1976
4.L.9 Land registry / Registration office
Bureau de l’enregistrement des titres (F); Oficina de registro(E)
The land registry is the institution or office responsible for land registration. The title of the office and the responsibilities vary considerably between jurisdictions, as, accordingly, does the staffing and equipment of the office. Titles of the officer in charge of land registration include:
> Chief Land Registrar (England & Wales, Kenya)
> Keeper of the Registers of Scotland (Scotland)
> Registrar-General of Lands (New Zealand)
> Registrar-General, Registrar of Titles, Commissioner of Titles (variously in the states of Australia)
The responsibilities range from, for example, England & Wales, where the Chief Land Registrar has extensive judicial powers, to Kenya, where applications to resolve or correct problems must be referred to the court in the first instance. ROWTON SIMPSON, S., 1976
4.N.1 Notary
Notaire (F); Notario (E)
The notary is both a conveyancing lawyer and a public official responsible for seeing that the conveyance is properly undertaken. The notary is a vital part of the system of land transactions in many jurisdictions in continental Europe. It is not a feature of systems of title registration under the Torrens System. The notary is bound by a strict code of ethics, enforced by the relevant national bodies. ROWTON SIMPSON, S., 1976
4.P.1 Property files / records
Fichier immobilier (F);Fichero inmobiliario/ Archivo inmobiliario / Archivo de la propiedad inmueble (E)
Property files are more associated in an English context with real estate management than with registration activity. In such a context, each property will have on file a documentary record of accounts, correspondence, agreements, contracts and other pertinent matters in relation to its management.
4.P.2 Public access to information
Acceso público a la información (E)
Public access to information is a feature of public policy by which each society defines what information, particularly about private citizens and corporate entities, should be available to the public.
Public access is an important issue in relation to land information as such information can form a very significant part of decision-making for individuals, corporations and governments. It is an area of rapid development as computer and internet technology increase capabilities to access, distribute and analyse data.
Jurisdictions vary in their approaches to the ownership and protection of data within registries. The UNECE Land Administration Guidelines recommend that laws should contain the following:
> the extent of legal liability for the accuracy of the data;
> the extent of rights of privacy over land and property information;
> who owns the copyright to data within the registers;
> who may have access to data;
> who may alter entries in the registers
UNECE, 1996
4.P.3 Public notice
Publicité foncière (F); Edicto de bienes raíces (E)
Public notice defines the process and period by which the administrative system can be legally assumed to have properly informed the public, for example in connection with issues such as adjudication.
A characteristic of the processes of land adjudication and registration, and land consolidation schemes is that they involve the definition and redefinition of rights of owners of the parcel in question, and of other owners of adjacent parcels. A common characteristic of these processes is for there to be a period of public notice of adjudication or consolidation schemes in the area to allow any appeals before they are crystallised into the law. Public notice helps to ensure success of the scheme by encouraging public acceptance and support.
4.R.1 Register
Registre (F); Registro (E)
A register is a facility for recording specified matters.
A register may be a paper based record, kept in loose leaf files or bound into books. It has moved rapidly in the 1990’s in sophisticated economies to electronically recorded data, using computer technology. It is becoming increasingly accessible by the internet, for example, for on-line conveyancing.
There may be several registers associated with land and property within one jurisdiction, including for example those related to land taxation and valuation such as the traditional cadastre, and those related to ownership, such as the land register or land book. In some jurisdictions these registers are being integrated with other land information to enable many purposes to be fulfilled.
4.R.2 Registration
Immatriculation (F); Matrícula inmobiliaria / Registro de la propiedad inmueble / Registro esporádico o sistemático (E)
Registration is the process by which rights and interests are recorded in registers. The process of registration in relation to land may follow a range of different options depending not least on the purpose and particular circumstances of the jurisdiction. These may include some at least of land registration, deeds registration, title registration, sporadic registration, systematic registration and registration of transactions.
4.R.3 Registration of transactions
Enregistrement des transactions (F); Registro de transacciones / Registro de instrumentos públicos (E)
Registration of transactions is the process by which transactional changes in rights and interests are recorded in registers.
Registration of transactions is often a legal requirement supporting a registration system. Without such compulsory registration requirements it is often argued that the system would become out of date and thus of progressively reduced value in fulfilling its tasks of maintaining an up to date record of ownership and related land rights. Registration of transactions will usually have a cost associated with it in fees, stamp duty and other transaction costs. In order for a registration system to succeed, whether it is “compulsory” or not, these costs must be sufficiently low to make the registration process viable for the registrant, otherwise alternative markets and unofficial transactions will occur and again undermine the registration system.
4.S.1 Sporadic registration
Sporadic registration of land is the process of registering land on a case-by-case basis usually as the result of a specific trigger such as the sale of the property. When introducing new systems of land registration or land titling it is usual to consider whether the most appropriate approach is for systematic or sporadic registration.
Sporadic registration is usually based on a specific action or actions of the owner of the property to trigger bringing it into the registration system. The most common action used to trigger sporadic registration is the sale of the property. This was, for instance, used as the main trigger for compulsory registration in defined registration areas in England and Wales after 1925.
Sporadic registration has the advantage that it may be less expensive in the short term than systematic registration and that it tends to target most economically active property first. It has the disadvantage that it will take much longer to achieve complete coverage of all titles within the jurisdiction. FIG, 1995
If the intention is to register all (or even most) parcels, then sporadic registration cannot be cheaper, and will likely be more expensive because of lack of economies of scale (e.g., neighbours all having to survey their parcels separately.)
Sporadic registration can also be criticised because the claims of each case are determined separately. Typically, public notice of the claim is a legalistic notice published in a newspaper. The process is not always very transparent. In contrast, systematic registration brings all claims in an area to light at the same time. It allows the population at large to scrutinise the claims being made.
4.S.2 Systematic registration
Systematic registration is the systematic approach to adjudicating, surveying and registering parcels on an area by area basis.
When introducing new systems of land registration or land titling it is usual to consider whether the most appropriate approach is for systematic or sporadic registration.
Systematic registration is relatively expensive in budgetary terms because of the typically large numbers of parcels being dealt with, although on a per parcel basis the average cost per parcel may be significantly lower than with sporadic registration as a result of economies of scale.
Systematic registration has the advantage that it will provide more comprehensive land information within a given time frame. It will also give more people improved rights more quickly, thus supporting the general development impact of increased security of ownership and reduced transaction costs. FIG, 1995
4.T.1 Title deed
Titre foncier (F); Título de tierras / Escritura pública / Título de propiedad (E)
A title is a right of ownership in real property. The title deeds of a property are the documents which evidence or prove ownership of the property.
Under a deeds system of conveyancing, the proof of title is through the demonstration of an unbroken thread of ownership through the sequence of deeds over the requisite number of years.
Under a title registration system, the land certificate may be referred to colloquially as the title deed, although in reality it is a certified copy of an entry in the title register.
4.T.2 Title insurance
Title insurance is an insurance service offered by companies to property purchasers under a deeds based system.
The title insurance underwrites any losses that may result after purchase of the property from discovered defects in the title. The purchaser pays a premium to the insurance company for this service. The service is available both to lenders under a mortgage arrangement, and to property purchasers.
4.T.3 Title registration
Title registration is a system for improving the quality of ownership and proof of title.
There are broadly speaking two parts of the register. The first is a map on which each parcel is demarcated and identified by a unique parcel identifier. The second is a text which records details about the title, the owner and any rights or restrictions associated with the parcel’s ownership such as restrictive covenants or mortgages. Under a title registration system a transfer of the property simply results in a change in the name registered. A division of the land or alteration of the boundaries requires amendment to the plan and the issue of new documents or certificates. The official title registration record is definitive. UNECE, 1996
4.T.4 Torrens System
Système Torrens (F); Sistema Torrens (E)
The Torrens System is a system of title registration.
The concept of a “Torrens System” of title registration poses problems as there is no single such system, nor are its characteristics explicitly defined. Even in Australia, the home of the “Torrens System” there is a remarkable diversity of registration systems in the different states. The Torrens System of title registration is named after Sir Robert Torrens who introduced a system of title registration into South Australia in 1858.
The key features of title registration are security, simplicity, accuracy, expedition, cheapness, suitability to its circumstances and completeness of the record.
Three fundamental principles for the success of a title registration system proposed by Ruoff, RUOFF, T., 1957, and generally accepted are:
> The mirror principle - that the register reflects accurately and completely all of the current facts material to the title.
> The curtain principle - that the register is the sole source of information necessary for a purchaser.
> The insurance principle - that anyone who suffers a loss should be compensated.
REFERENCES CHAPTER 4
CARD, R., MURDOCH, J., SCHOFIELD, P., Law for Estate Management Students, 4th Ed, Butterworths, London, 1994
HUSSEIN, K., Conflict between farmers and herders in the semi-arid Sahel and East Africa: A review, Pastoral Land Tenure Series, No 10, IIED/ODG DEV/University of East Anglia, 1998
LEONARD, R., and LONGBOTTOM, J., Land Tenure Lexicon: A glossary of terms from English and French speaking West Africa, International Institute for Environment and Development (IIED), London, 2000
MANTHORPE, J., UN ECE Land Administration Inventory in Europe, Parts 1 and 2, HM Land Registry, London, 1997
ROWTON SIMPSON, S., Land Law and Registration, Surveyors Publications, London, 1976
RUOFF, T., An Englishman looks at the Torrens System, Sydney, 1957
UN, ECONOMIC COMMISSION FOR EUROPE, Land Administration Guidelines, UN ECE, Committee on Human Settlements, Geneva, 1996
