Land Registration Systems Around the World Land Systems: Why? Land

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Land Systems: Why?

Land Registration Systems • Government funcon has been to maintain records Around the World regarding land and other real estate to properly assess its value and collect real estate taxes • Cadastres (Land books) were introduced to keep MCRA Summer Conference track of the technical aributes of land inventories • The earliest cuneiform records from 4th century B.C.E. in Breezy Point Mesopotamia are administrave property records dealing June 25 2009 with land, animal husbandry and personnel management Peter Rabley • Over the last two centuries legal rights and responsibilies of International Land Systems (ILS), Inc both the private and public sectors engaging in real estate transacons have become a primary concern

Land Systems: Why? Beneﬁts of Land Systems

Certainty of . Sustain stability & economic development by registering Improved Ownership Spatial Security of private property rights that promotes internal conﬁdence Land-use Tenure Planning between its people, its commercial enterprises and its Improved government. State-lands Facilitated Management Land Reform . Private property rights are a major source of naonal wealth & good government and eﬀecve public administraon. Improved Improved Land-market Land Resource . States that prosper promote widespread and secured private Monitoring Management ownership of real estate as a foundaon of social and economic policy. Credit Reduction in Security Land Disputes

Improved Land Market Property Improved Development Taxation Conveyancing Public Confidence Copyright © 2009 International Land Systems (ILS), Inc. Copyright © 2009 International Land Systems (ILS), Inc.

Principles of Land Systems Essence of Land Systems

PROPERTY Bundle of Rights PARTIES • Parcels • Buildings • Real property rights deﬁned and protected • Construcon • Apartments by Government. • Real property rights have a legal dimension. • Owners • Real property rights have a physical dimension; • Tenants RIGHTS • Mortgagors tangible or intangible. • Trustees • Ownerships • Real property rights have an economic dimension; real • Caveators • Leaseholds property is a store of value, an element of wealth - a • Aorneys • Servitudes • Restricons safe “harbor”. • Encumbrances • Caveats

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Essence of Land Systems: Rights Essence of Land Systems: Rule of Law

Legislaon • Right of private property is deﬁned by a Constuon, Legislaon/Code, Regulaons, and/or Documentaon Customary Law Procedures • The Brish Common Law is an example of customary law • Many of the principles of this common law have been Conveyancing codiﬁed by legislaon Registraon • Many countries have customary rights Completeness of Records • The rights are created by contract: Access • First from Government to Private Sector/Person • Subsequently, between any pares competent to contract Cost Integraon of Land Informaon

Land Systems: Market Expectaons Land Systems: The Financial Sector

• A Simple, Understandable Procedure for Recognizing Rights • Primary land markets • Effecve, Secure Documentaon of Rights created • Protecon against Infringement of these • All transacons must Rights by Others be tracked • A Public Record of these Rights so Others Know • Markets mature and • Records Complete and Incontroverble Proof confidence grows • Convenient Methods for Transferring these Rights • Securizaon • Effecve Procedures for Preserving the Wrien Record mobilizes funding “The power to idenfy and isolate with precision every asset and every parcular interest on that asset”

Land Systems: Toxic Paper? Land Systems: Toxic Paper? History..

“This poisonous paper is scaring oﬀ potenal creditors “ This is the judgement of and investors who lack the legal means to understand sober men Will be this long what this paper signiﬁes, how much there is who has desired Registry Upon whose fond none can be cheated it, and who might be a bad risk.” when They trade or trust on that security Which if it pass as it is now fitted The just are “A meager 7 percent default on subprime mortgages Feet of Fine Deed: fictitious court cases used to record a double blessed, the knaves conveyance. funded or insured by derivaves…..is debasing the outwitted” rest of the economic paper and contaminang the 1660’s England enre economy”

Andrew Yarranton, -‘A Plain Dealer’s Prayer for a Registry’ Hernando DeSoto – Newsweek, March 2, 2009 pages 47-48

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Early Land Systems Early Land Systems

• “Cursed be he that removeth his neighbour’s landmark” • Terminus was the god of boundaries. book of Deuteronomy in the Old Testament (ch 27 v17), 3,000 years ago The stones used to mark borders were sacred to him. In February Terminalia was celebrated by the Romans. The stone or stump boundary- markers were “drenched in sacrificial blood and placed on flowers to • In Mesopotamia, maps were "drawn" on clay tablets and renew its protecve powers”, “Without you every field would be disputed” depicted the Mesopotamian world including maps of individual settlements and properties. • Turf and Twig "The lucky new Commoner goes to his "given" acre and cuts a turf from the selected site and drops two shillings in the hole made. The High Steward then twitches him with a twig and scks the twig in the turf, then Clay Tablet map from hands it to him saying, "This turf and twig I give to thee, as free as Ga-Sur, 2,500 B.C map Athelstan gave to me, and I hope a loving brother thou wilt be." The High of pre-flood Edenic Valley (now below the Steward then takes the money out of the hole and the new landowner Red Sea). replaces the turf.“ 12th century – Athelstan King of England 924 -939

Early Land Systems Early Land Systems: Customary

• Livery of Seisin (feoﬀment) • These are not governmental systems, rather rely on private parties exclusively to perpetuate records “A ceremony performed in medieval England that eﬀected the transfer of land from one party to another.”Livery of • In the common law context livery of seisin is a good seisin was the dominant method of transferring land in example England unl 1536, and it connued to be legal unl 1925. “A • In many countries symbolic rituals witnessed by persons smack on the ear!” expected to be able to substantiate a transaction well • Bargain and Sale into the future are common • Private conveyancing is the passage of original Not unl 1536 did it replace conveyancing documents from buyer to seller Livery of Seisin • England favored privacy early on • Colonial bodies favored public recordings of deed transfers (Virginia Statute of 1640)

Early Land Systems: William the Conqueror Early European Perspecve

“... surveyed so carefully that there 1862 was not a hide of land in England of Brent Land Use which he did not know who held it and Follett Cadastre 16th how much it was worth”. Century

Bonaparte Empress Maria 1804-1815 Theresa (1717-1780) Domesday Book, 1086

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European Historical Consequence All Systems Need Maps

APPLICATION FOR Showing Property Boundaries…… REGISTRATION

‘Fixed & General SURVEYING LEGAL MAPPING DOCUMENTATION DATA • Fixed boundary

Registry of Property and Cadastral Survey Office • General boundary Ownership Rights

CADASTRE Cadastre Registraon acts typically LRS #NNN Data

REGISTRY OF allow both. CADASTRAL SURVEYING PROPERTY RIGHTS & MAPPING RECORDS Fiscal Legal • Combined INDEX MAP • Flexible TITLE • Point idenﬁer as /DEED ﬁrst step • Unique parcel ID number becomes essenal in either case

Types of Land Systems Today

1. Customary – usually an oral agreement accompanied by symbolic /customary ritual 2. Religious (Waqf lands in Middle East) 3. Private Conveyancing 4. Deeds Registration 5. Title Registration

Formal Land Systems Deeds vs. Title Systems

• Two formal systems of recording and making inventories of RELATIONSHIP BETWEEN MAN AND LAND IN DEED SYSTEM RELATIONSHIP BETWEEN MAN AND LAND IN TITLE SYSTEM

property have evolved RIGHTFUL CLAIMANT LEGAL LAND SUBJECT 0BJECT (PERSON/ENTITY) OBJECT •Deeds Register Systems •Title Register Systems LEGAL LEGAL RIGHT(S) RIGHT(S) RELATION RELATION • Deeds Registers are older than Title Register Systems • The legal framework provides protecons for recording or RIGHTFUL CLAIMANT LEGAL LAND SUBJECT 0BJECT (PERSON/ENTITY) registering rights (priority, security of tenure) OBJECT Source: Larsen • Recording and Registraon are the subject of special laws •Recording Acts for deeds systems •Title Registraon Acts for registraon systems

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Public Funcon in Deeds Systems Public Funcon (cont…)

• Generally limited • For Deeds Systems the government normally does not check • The government is mostly a repository for the to see that the document actually accomplishes what it documents purports to accomplish • By accepng a document the government is not determining • It receives the documents it to be valid • Indexes the documents, and • There are hybrid deeds systems, such as Egypt, where the • Generally returns the document to the proper party government makes a more extensive invesgaon (most oen the grantee)

Parcel Based Deeds Systems Title Registraon System

• These are somemes called improved deeds systems Government Cerfied Title • They exist in many jurisdicons • Appropriate Legislaon • Since the land is permanent and can be unambiguously • Cerficate of Title (Transparent to Public) idenfied over me a parcel based index (tract) is inherently •Ownership beer than a name based index •All Encumbrances • Chile & Netherlands two good examples. • Indefeasible Title .Assurance provided by bonded notaries. .Notaries (Notarios) are usually family businesses. • Government Maintains Adjudicated Title for Subsequent Transacons • Parcel Based • Guarantees (Mirror, Curtain, Possibly Monetary) • Adjudicaon: Systemac or Sporadic

Registered Title Guarantees Registraon: Three Guarantees

• Title registraon systems guarantee that the • Mirror guarantee: That the register reflects the current status persons named as owners in a cerficate of of tle tle have an indefeasible tle • Curtain guarantee: That the current register is the sole source of tle informaon and that no other source, parcularly • They do not necessarily guarantee boundaries, historical real estate records, need be consulted in but a few systems do Austria and Germany determining ownership and current encumbrances, and • They do not guarantee the validity of • Indemnity guarantee: Oen, though not always, that the encumbrances government will reimburse persons suffering loss caused by errors, omissions, or misfeasance of the Registrar under legislavely defined condions.

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Running Costs World Perspecve

Deeds System Title System • Colonial Legacy – First with the Romans……. • Deeds registraon is common in Lan cultures in Europe • Relavely minor • Major administrave (France, Spain, Italy, Benelux), in South America, and parts of • Normal administrave skills costs Asia and Africa • The number of staff • Requires highly skilled • Sll used in the United Kingdom which exported earlier depends upon number of legal specialists version to the United States, but got its formal system from transacons • Cost of maintaining the Romans (54 BCE – 409 CE) • Cost of maintaining registry system is borne by • Most of the United States. government is much less for government • Different Deeds Systems - role of the cadastral (map) • Validity of Rights is • Validity of Rights idenficaon and surveyors varies significantly. determined by private determined by .Netherlands – Private Notary sector government .Chile – Private Notary

World Perspecve World Perspecve

• Title registraon is thought to have originated in the • Title Registraon System in the UK, general boundaries are Germanic culture found in the central European countries used to idenfy the land parcels on large-scale topographic (Germany, Austria, Switzerland). map series. • Hanseac League or the UK?

• Versions of the German system in the Eastern European and the Nordic countries. Diﬀerent use of the property concept and organizaon of the cadastre (ﬁxed) and role of private licensed surveyors.

World Perspecve Collapse of the Soviet Union

• Torrens Title system (developed by Sir Robert Torrens) and • Social reform through introduced in South Australia in 1858. cadastre • Can be found in Australia, New Zealand, US, some provinces • Land reform of Canada, and some countries in the Caribbean, Asia and • Land restuon to Africa. former owners • Modiﬁed Torrens – starng in late 1950’s in Kenya • “Righng the wrongs of the past”

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Post Conﬂict/Post Disaster States Crimea

• South Africa • Cimmerians • Liberia • Ancient Greeks • Sierra Leone • Afghanistan • Romans • Iraq • Goths • Angola • Huns • Mozambique • Bulgars • Sri Lanka • Mongols (12th century) • Indonesia • Genoa • Thailand • Tatars (14th century)

Crimea Crimea

•Oomans 1473 •Squang by Tatars •Cossacks – Russian empire mid •70% Ethnic Russian 1700’s •Russian Black Sea Fleet in Sevastopol •1921 Crimean Autonomous Soviet •Moratorium on sales of rural land Socialist Republic •Urban land controlled by •1945 Stalin deported all Tatars to municipalies and sll separated from Uzbekistan buildings •1992 – became part of the •Mulple agencies collect registry independent naon of Ukraine informaon aer a 1991 referendum at the fall •Limited and controlled public access of the Soviet Union •No land market •1996 Tatars were allowed back

China & Vietnam Internaonal Lessons Learned

• “New” Market • Polical will -- success requires commitment to Communism reform and instuonal cooperaon • Urban markets/ • Emphasize legal and procedural reform and ownership development of human resources, more than • Limited rural land technology -- technology provides the tools not the rights answers • Re-engineer procedures prior to computerizaon instead of the reverse • Instuonal reform – single execuve agencies, revenue funds • Integraon

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Internaonal Lessons Learned

• Orient reform towards more eﬃcient producon and beer client services Thank You • Complete map coverage to a lesser standard of accuracy is preferable to paral coverage to a higher standard of accuracy Peter Rabley, President/CEO • Strong public support and parcipaon are crical International Land Systems (ILS), Inc.

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