LAND TENURE SYSTEM IN CADASRAL SURVEYING
The way in which rights in land are held is
called “tenure”. In many countries the absolute owner of all land is the State
or Head of State but for all normal purposes two common forms of tenure can be
identified: freehold and leasehold.
Freehold means that the owner can do what he
or she likes with the land, for example in the way of disposal, subject to any
restrictive covenants and the various planning regulations that are imposed by
statute with regard to the use of the land.
Freehold is not absolute since the State
retains the right to acquire land in the public interest, for instance for
building new housing or motorways. Leasehold means that the freehold owner, who
in some cases may be the State, has relinquished most of the rights in the land
for a set period of time such as 99 years during which the leasehold owner has
the use of the land or property but at the end of which the title returns to
the freehold owner.
Many countries operate similar land tenure
systems though some do not recognize
leasehold and rely on
rental agreements to control the short-term use of the land. Not all rights are
written down. A title is generally subject to statutory restrictions, such as
development control regulations that are imposed by the local municipality but
which do not appear on any certificate of title.
The title may also be subject to customary
laws and overriding interests that likewise are not written down.
Deeds
registration and title registration
The three systems for recording rights in
land are:
(a) private
conveyancing;
(b) the registration
of deeds: and
(c) the
registration of title.
In private conveyancing, documents
agreeing to the transfer of ownership are passed between the seller (vendor)
and purchaser (vendee), usually with the guidance of a lawyer. The State merely
provides; I legal framework within which this process takes place. Private
conveyancing is generally regarded as inefficient and potentially dangerous
since it can be subject to fraud as there is no easy proof that the vendor is the
true owner.
Under a system of registration of deeds,
a copy of the transfer document is deposited in
a deeds registry. An
entry in the registry then provides evidence of the vendor’s right to sell. In
parts of the United States of America, private registers are operated by
insurance companies that underwrite any losses that may arise through defects
in the title.
This is known as
title insurance. Under title insurance, the purchaser pays a premium to obtain
the necessary
guarantee. If fraud takes place and a purchaser of land finds that the title
is invalid, the
insurance company will pay compensation. The system does not however
support general land
management.
In countries where there is a national deeds
registration system, the registry is under the control of the State. A copy
of all agreements that affect the ownership and possession
of the land must be
registered at the registry offices and one copy of all documents is
retained. Each
document will normally have been checked by a notary or authorized
lawyer and its
validity ascertained.
As a
result, by searching the registry for the most recent document of transfer, any
would-be purchaser should feel confident that the vendor has the right to sell.
Inspection of the register will show how the vendor obtained the property and
the conditions under which it was acquired. This of course provides no proof
that the previous transaction was legitimate, hence the transaction before that
should be inspected, and so on through a sequence of inspections until the purchaser
is confident that there is a clear chain of title.
An ideal system would reflect perfectly the
legal position on the ground (the mirror principle), draw a curtain over all
previous dealings so that only the present entries on the register need be
consulted (the curtain principle), and guarantee the accuracy of what is shown
on the registers (the insurance principle). It is difficult for a deeds registration
system to conform with all these principles.
On its own, the system gives no guarantee of
title; it merely provides access to the history of transfers, some of which may
in practice be missing depending on the history of the system; possible
disasters may have occurred, for instance, during the Second World War when
many records were destroyed.
A further objection to deeds registration is
that it leads to the storage of vast quantities of ancient documents, creating
what has been referred to as a “mausoleum of parchment”. Not only is this
costly but the retrieval of data can also be difficult and time-consuming,
depending on the volumes of documents stored.
With computers it is of course possible to
store and retrieve rapidly large amounts of data and although the conversion of
old documents into digital form is potentially expensive, the costs are
much less than in the
past. By applying modern technology, such as the scanning and micro-filming of
documents, and by adopting appropriate administrative routines, deeds registry
systems can now offer an efficient and reliable service.
In some deeds registries, the management of
the records is extremely efficient and as a
result there is great
confidence in the system. While such registries do not actually
guarantee title, they
provide the most important evidence of ownership that can be
assumed to be correct
unless proved otherwise in the courts. In many countries around
the world, the deeds
registries are not in this category and the systems owe more to the
nineteenth century
than to today.
Documents are in poor physical state,
difficult to retrieve and even more difficult to link into a chain of titles
tracing the pattern of ownership over time.
An alternative to the registration of
documents is the registration -of title to land. In this system
each land parcel is identified on a map and the rights associated with it are recorded
on the register. In addition, the name of the owner is recorded.
When the whole of the land is subject to
transfer, only the name of the owner need be changed.
When part of the land
is transferred, the plans must be amended and new documents issued. Although ;I copy of the certificate of
title for each land parcel is held by the landowner or by the mortgagee in the
case of’ land that has been used as collateral, the definitive record is that
held by the titles registry.
Under such a system the ownership of land
can be guaranteed. Anyone who is dispossessed of land through the functioning
of the registers will be compensated even though the mistake was not made by
the registry but rather was a case of fraud.
In Australia, registration of title to land
is known as the Torrens system. Many other countries operate very similar and
equally effective ways of registering title to land. The Torrens system is
essentially simple and relatively cheap to operate.
Transfers of whole land parcels can take place
without any lawyers being involved, although in practice many people choose to
take professional advice when dealing in land.
Both systems of registration of title and
registration of deeds evolved to meet the needs for improved conveyancing. Both
were devised to provide greater security to the land market and both grew from
a legal rather than a land management perspective.
A compromise between the two systems is
possible, drawing on the strengths of each approach. A number of countries, for
example, combine land ownership and mortgage
data in one register,
while other information such as that relating to property boundaries
is recorded in
separate documents. In some countries the data on mortgages or
hypothecs are
maintained in separate registers that have to be checked independently
when transactions are
taking place.
A system for recording land ownership
should:
·
Contain a legal definition of real
property units that accurately reflects conditions on
the ground;
·
Facilitate land transfer through a
system that is simple, secure, and cheap to operate;
·
Eliminate the need for extensive
searching for a chain of titles;
·
Be supported by legislation that
requires it to be kept up to date at all times, for
example when
mutations occur;
·
Meet local needs;
·
Record specific real property rights,
ownership and restrictions on ownership that are
not otherwise
transparent;
·
Cover all land, including that held by
the State as well as by individual private citizens
or institutions.
Neither deeds registration nor are title
registration systems concerned directly with land
use, though some
indication of this may appear in the property description. Furthermore, neither
system addresses all of the land rights. Rights restricted by municipalities
under development control regulations are rarely incorporated.
Similarly, the systems do not necessarily
provide information about land values. In many cases, the price paid for
properties as declared in transfer documents is used as a basis for
charging for the
service, and for government-imposed levies such as a land transfer tax
or capital gains tax.
The declared price may differ from the real
price so that the vendors or purchasers can reduce or evade paying what may be
seen as too high a tax. In order to begin the compilation of a land register,
whether it is under a deeds registration or a titles registration system, there
needs to be some mechanism to bring land onto the registers. In both systems
one trigger mechanism is a dealing in the land, for instance a sale or when a
mortgage is taken out. For deeds registration that is all that is technically
required, since the system merely records documents.
It is a prerequisite in either system that
landowners and the general public understand
the process
sufficiently to have confidence in it. There is often a fear that a Government
Introducing a system
may seek to take land away from people rather than confirm the
rights that they
have.
Once data are on the registers, the records
must at all times be kept up to date. In some
Countries the system
of inheritance makes this difficult, especially where ownership is
Shared between heirs.
The relatives of a deceased landowner may also not record their
Inheritance, either
through ignorance, a misunderstanding of the procedures, or a wish
to avoid payment of
death duties or taxes.
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