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Registers of rights

Cadastral maps are essentially descriptions of the parcels of land (survey plots or holdings) with reference to which rights in land are defined and the holders of these rights identified. Cadastral maps are not in themselves a record of any right held, although it is true that they may be used to differentiate certain types of tenure, for example state and non-state land, reserved forests, and land held by public authorities or under certain tenures (for example religious or charitable foundations). In such cases, the maps may become a part of the record of rights. The formal record of rights is normally contained in one or more “registers” that in some countries are known as the “Land book”. These registers will normally be supported by cadastral maps. The converse is however not true and cadastral maps can exist without registers of rights, for example where they are the original record of a classification of land for taxation purposes.

Registers of rights must be distinguished from registers of deeds. A deed is a written instrument recording a transaction affecting, or purporting to affect, a right. Deeds may be registered for the public convenience or in the interests of private persons. A deed is only executed when there is some change in the possession of a right and a register of deeds is a record of transactions in rights and not of the rights themselves. Registration of deeds may, however, have an important part to play in the preparation or maintenance of a register of rights, as will be discussed later.

Rights in land are of many kinds, varying from full ownership to a mere conditional right of access at certain times and for certain purposes. Rights in water also exist and may be held separately or on a different basis from the rights in the land on or under which the water is found. There may also be separate rights in trees and minerals, etc. A complete register of rights should take account of all these rights but in practice few such complete registers exist, and most people when they speak of registration of rights in land are thinking only of the registration of title, that is of rights of ownership (or perhaps more broadly those of primary tenure).

This limitation probably arises from the fact that written registers of rights usually (though not invariably) come into being in countries in relatively advanced stages of social development. Such countries in general have registers based on European ideas of property in land that give protection to the landholder and are less concerned with the point of view of the public interest. In such countries land registration has tended to be seen primarily as in instrument for improving the processes of conveyancing rather than an instrument of land resource management.

An important result of this preoccupation of systems of registration with individual primary tenures has been the growth of a belief that registration is impracticable or unnecessary, and even undesirable, where private ownership is not an important feature of the tenure system. It is true that in many traditional societies what may be called the public memory, often assisted by a high degree of publicity, ceremony and even ritual, is in itself a form of record which may take the place of a written record. It may also be true that local financial or social conditions may justify a postponement of the work of survey and registration. Experience, however, suggests that the time will inevitably come when growing pressure of population on the land and other causes will create a pressing need to define accurately the boundaries of family, village or tribal holdings and the rights enjoyed in these lands by members of the community concerned.

Once the conception of a land register as a record of individual rights in particular pieces of land is laid aside, many of the local objections to registration disappear. It is obvious that the members of a community that holds its land on a communal basis, or on the basis of what is known as the extended family, may reasonably object to any attempt to define the rights of individuals in terms of the land they actually occupy - especially when, as sometimes happens, the true ownership is believed still to vest in some long-dead ancestor. This is not, however, an essential feature of a system of registration of rights. In such cases the register might consist merely of a precise description of the lands held in common, a statement of the kinds of right enjoyed by the members of the group, and a list of members of the group regarded as possessing such rights. There need be either no reference to current occupancy, or such reference as would make it abundantly clear that occupancy carried no rights of mortgage or disposal. Such a register would initially be merely a written reflection of the public memory and its maintenance merely a record of changes duly authorised by traditional ceremonies and rituals. Its advantage as a method of avoiding disputes and unwarranted claims by individuals together with its obvious utility in cases where the traditional system finds itself unable to cope with the current situation would most likely far outweigh the objections that could be urged against it.

It should also be noted that many rights in land and water or in the produce of land and water, other than rights of individual possession of land, are in fact registered in forms other than the formal land registers. Under the better systems of forest administration, for example, it is common practice for the orders constituting new forest reserves to be set out in considerable detail (sometimes extending to actual lists of names). Such orders would define the nature and extent of rights of residence, cultivation, grazing, timber extraction and collection of wild produce by individuals or villages that subsist in the forest after reservation. Leases to work inland fisheries often contain clauses describing the rights of neighbouring cultivators in respect of use and control of the water, and place limitations, based on these rights, on the extent to which the lessee may obstruct or divert the flow of water. All these things are in effect methods of registering rights in land otherwise than in the ordinary land register. That departmentally it may be convenient to keep separate records of some of them does not detract from the fact that they are essentially part of the national record of rights in land and should be so regarded.

Some classes of rights in land cannot be disregarded such as rights of secondary occupation or use of land. Some of these, for example hereditary and life tenancies, occupancy rights, etc. derogate so importantly from the rights of the primary possessor that they must necessarily find a place in every register of rights. Others, for instance seasonal tenancies that are not renewed, are so ephemeral that the trouble of keeping the register uptodate may not be justified by the advantages of having these rights registered.

Another important class of rights in land consists of liens and conditional reversions, including mortgages and pledges in security. The large class of usufructuary mortgages, which involve changes in physical possession, would probably be registered under any ordinary system of land registration. Simple mortgages not involving changes in physical possession are normally registered as documents where a system of registration of documents is in force, but may not find a place in land registers. Many pledges of land as collateral security may not be registered at all. There are, however, good reasons why all encumbrances to land should be publicly registered.

There is also a great variety of rights that do not involve possession, legal, physical or conditional, of the land itself. One of the most interesting of these arises from the fact that in some countries property in trees may be held and may pass quite separately from and independently of property in the land itself. Separate rights in minerals are a similar case. There are also many easements or servitudes, especially rights of grazing, of passage, of extraction of timber and forest produce, and of “profits à prendre” generally. These may be of great importance especially where public land is affected, or where a large estate is to be broken up. In such cases a public record of these may be of great value.

There is also a large class of public rights in land, including not only rights held by the state, but also rights held by large numbers of government departments and local authorities, village commons, and in some countries the sites of the villages themselves.

Enough has perhaps now been said to indicate the inadequacy of a register of title alone as a record of rights in land. The extent to which a national register should cover the whole field, however, is a matter for decision in each case. Before discussing the objects at which a good system of registration of rights should aim, there is one matter of fundamental importance to which reference must be made, since it arises from the main difficulty in effective registration. This is the difficulty of ascertaining in absolute terms the precise nature of the rights held by any particular person, or conversely, of ascertaining the person who holds any particular right. This subject is usually discussed in terms of title to the ownership or possession of land, and will so be discussed here. It should, however, be noted that what is said about title applies in general to all other rights.

First, it is desirable to return for a moment to the distinction between registration of deeds and registration of rights. A deed is a record of an isolated transaction and is evidence that that particular transaction took place. It is not, however, in itself evidence of the legal right of either party to carry out the transaction and consequently not evidence of the legality of the transaction itself. The defects of a register of deeds as a record of rights are therefore obvious; as Sir Robert Torrens, the great Australian authority on registration of title put it: “Title by deed can never be demonstrated as an ascertained fact: it can only be presented as an inference more or less deducible from the documentary evidence accessible at the time being.”
(Torrens, R. 1859. The South Australian system of conveyancing by registration of title, Adelaide.

A register of title clearly aims at something much more definite than this. Every parcel of land is originally placed in the register as a unit of property. Once this has been done, every transaction affecting the parcel is entered in the register with reference to the land itself and registration thus serves as evidence of title and as a bar to contrary claims. The difficulty lies in the nature of the evidence on which the original entry is based. Where registration is in force from the first occupation of land, no difficulty arises since clearly there is no question of any adverse claim having previously arisen. This is, however, seldom the case, and the question at once arises of the evidence required before a first entry is made in the register. The investigation of absolute title may be, and usually will be, a long, difficult and expensive process in each case, and at the worst may never produce a definitive result. On the other hand a system of registration based on possession, which is an obvious alternative, can provide presumptive evidence of title, though from a legalistic point of view such a register is little better than a register of deeds. Every year that passes, however, makes presumptive evidence more difficult to rebut and finality can always be achieved by legislation that lays down a limit to the time within which suits claiming an interest in land may be brought. It is, of course, claimed that by the custom of many countries, especially in Africa, mere lapse of time does not extinguish a right once acquired. It is fortunate that it is in precisely these countries that the public memory referred to above will be found to be most active and accurate. Hence there are strong grounds for thinking that, provided that the inquiry on which initial registration is based is local and public and that care is taken that the purpose of the inquiry is understood by the people concerned, the claims of absentees will not go by default, even in the first instance.

It is not, of course, suggested that, even where registration is to be based on possessory rather than on absolute title, nothing more is necessary than a mere writing down of the names of persons in actual physical occupancy of the land. Many of these persons will, by their own admission or from the knowledge of their neighbours, be persons in subordinate or joint occupancy only, and what should be recorded is obviously the name of the person in primary possession or all the names of joint possessors. A careful inquiry will therefore be necessary to elicit the full facts of current possession and there will probably be other subjects for inquiry at the same time. It should be observed that the fact that quite a detailed inquiry is necessary merely to establish the full facts of current possession considerably reduces the likelihood of subsequent claims adverse to the facts thus established.

Public opposition to the initiation of a system of land registration may sometimes be strong and there is, perhaps, a larger number of cases in which expected opposition acts as a deterrent to action. It is an interesting fact that such opposition seldom comes from the landholders themselves, and this sometimes raises doubts as to the complete disinterestedness of the opposition: it is, for example, perhaps not very reasonable to expect enthusiasm for a registration system from a lawyer accustomed to high fees for conveyancing. There are, however, cases in which opposition is or seems to be justified, and in such cases great care should be exercised in adjusting the system so as to remove or mitigate public doubts and fears.

The purposes of a complete system of registration of rights in land are:

  1. to provide at any time by a mere examination of the maps and registers an up-to-date and true description of all rights recognized by law or valid custom in the land at that time and a statement of the persons, classes of persons, public authorities, etc. in whom these rights vest for the time being; and

  2. to provide an immediate means of identifying with certainty and accuracy both entries in the maps and registers relating to any actual piece of land and the actual piece of land to which any particular entries in maps and registers relate.

The achievement of these purposes may be expected to have certain effects on all relations between the land and the individuals, social groups, and public authorities interested in that land. These effects will be discussed later.

To achieve these purposes the following documents are required.

  1. A cadastral map on which, with the assistance of permanent marks or features on the ground, every piece of land which has been or may be the subject of any right can be accurately identified either directly by examination or by short and simple measurement.

  2. A register which acts as an index to the map, containing the area of each survey plot and which provides in tabulated form all information about the survey plot that is contained in the map.

  3. A register or series of connected registers containing so much of the following information as it is intended to register:

    1. The number, name, etc. of the corresponding map.

    2. The basic tenure of each survey plot where different basic tenures are recognized: for example, state or non-state land; communal and private land; village and family land, etc.

    3. The “primary holdings” by serial numbers and names (if any).

    4. The basic tenure of each primary holding, where different basic tenures are recognized: for instance state or non-state lands, communal or private land; village or family land, etc.

    5. The numbers or other identification of the land parcels included in each primary holding.

    6. The area of each land parcel and the total area of the primary holding.

    7. The name, description or other identification of the primary holder.

    8. If the primary holder is a group of persons (other than a formal association such as a company or cooperative society), the names and other identification of each member of the group who is recognized as a joint holder and the nature of the right held. This includes groups such as joint owners, an extended family, the inhabitants of a village, a tribe, etc. The name, title etc. of the person or body recognized as representing the joint-holders for business purposes should also be included.

    9. The tenure under which the land is held if this differs from the basic tenure, such as leases of state land.

    10. Any permanent rights over the land not amounting to occupation held by persons other than the primary holder or joint holders, such as easements, rights of grazing, cutting or collecting of forest produce, etc.

    11. Any rights reserved against the primary holder by the government.

    12. Any primary rights, for example in trees, etc., over things on the land that do not vest in the primary landholder.

    13. Permanent subordinate rights of occupation or use.

    14. Temporary subordinate rights which have the effect of suppressing or placing in suspension the rights of the primary holder, such as usufructuary mortgages.

    15. Temporary subordinate rights of occupation or user modifying but not suppressing or suspending the rights of the primary holder, such as ordinary tenancies.

    16. Encumbrances on the land not affecting rights of occupation and user, such as simple mortgages.

Set out at length, these requirements seem very complicated. In practice, however, if separate forms are used for such obviously different types of primary right as individual and communal tenure, and if intelligent use is made of supplementary registers (especially where changes are likely to be frequent as in the case of short-term tenancies) the forms necessary will prove to be quite simple. Computerization will, of course, make such complexities even easier to handle. In some case where rights are already recorded in a separate public document, for example in the case of the newly constituted forest reserves mentioned above, all that is necessary may be a simple reference to such a document and the filing of the document referred to in a convenient place.

Many governments starting a system of registration may desire to confine themselves initially to the bare essentials of registering the basic tenures, the primary right-holders and those subordinate right-holders whose rights are either more or less permanent or may have the effect of suspending the existing rights of the primary holders. There may be sound practical reasons against attempting to register such rights as those conferred by annual tenancies. It is a sound rule to limit registration in such a way that the register can be kept accurate and uptodate. An inaccurate register may well be worse than none at all.

On the other hand there may be circumstances that make it necessary to register temporary rights that may ordinarily be considered too difficult to include in the registers. One such case is where a legal right is given to a tenant to continue an annual lease indefinitely during good behaviour without formal renewal.

Land registers can, of course, be used for the recording of many other kinds of information than the simple facts of tenure. Obvious examples, often of great economic and administrative importance, are the differentiation of resident and non-resident landholders, or of agriculturist and non-agriculturist landholders.

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