Modern Cadastre and Land...

Centre for SDIs and Land AdministrationDepartment of Geomatics

Modern Cadastre and Land

Administration

Modern Cadastre and Land Modern Cadastre and Land

AdministrationAdministration

Jude Wallace

2007

Session 5b. Registration toolsSession 5b. Registration toolsSession 5b. Registration tools


OverviewOverview

• Objectives

– To introduce the array of tenures used throughout the world– To understand the differences between ownership in

Western and traditional systems– To understand different types of registries

• Topics

– Tenure• Four general tenure types

• Ownership in western and traditional systems

– Registration systems• Generics

• Title and deed


Resources on Land RegistrationResources on Land Registration

Administration– Gerhard Larsson, Land Registration and Cadastral Systems, 1991,

Longman Scientific and Technical, UK.

History– Ernest Dowson and VLO Sheppard, 1952. Land Registration, 1952,

HMSO, Colonial Office. London

Modern theories– UNECE, Working Party on Land Administration, 2000. Key Aspects

of LR and Cadastral Legislation, Vols 1 and 2.

– http://www.unece.org/env/hs/wpla/docs/links/wpla_inv2_p1.pdf


Resources on tenureResources on tenure

• Ciparisse Gerard, Ed 2003. Multilingual thesaurus on land tenure: FAO, Rome.

– ftp://ftp.fao.org/docrep/fao/005/x2038E/x2038E00.pdf

• UN-HABITAT, 2003. Handbook on best practices and security of tenure and access to land. Nairobi, Kenya.– http://www.unhabitat.org/pmss/getPage.asp?p

age=bookView&book=1587

• UN-HABITAT, 2004. Pro-poor land management. Nairobi, Kenya.

– http://www.unhabitat.org/pmss/getPage.asp?page=bookView&book=1105


More resources on tenureMore resources on tenure

FAO Land Tenure Series

especially

FAO, 2003. Land tenure and rural

development, #3, Rome, Italy. http://www.fao.org/DOCREP/005/Y4307E/Y4307E00.HTM


Tenure in

Australia

Tenure in

Australia

GeoScience Australia 4

June 2003 http://www.ga.gov.au/educa

tion/facts/tenure/images.ht

m


Types of tenure…Types of tenure…

There are thousands of tenures in land, buildings and resources.Nations involve many societies and groups.Each society or group develops its own tenures. Sometimes one

group has more than one type. A tenure is the relationship between a group and its land.A tenure is recognised in any kind of normative system.

– Eg: Informal tenures are recognised by social norms. Messy, but adaptable.

– Formal tenures are recognised by legal norms. Rigid, but stability forms basis for invention of new commodities.

Tenures are always changing as people to land relationships change.


UN-Habitat definition of tenureUN-Habitat definition of tenure

• “a simple definition of tenure is therefore:

The fact that other people believe the land you occupy and use is the land that you are allowed to live on and use.”

Pro poor land management, concise introduction to the handbook, 2004, p 13


Tenure continuumTenure continuum

Pavement Dweller

Squatter Tenant

Squatter Owner

Tenant - Unauthorised Sub-div

Owner - Unauthorised Sub-div

Legal Owner - Unauthorised construction

Tenant with contract

Leaseholder

Freeholder

High Security

Degree of

Security

Low Security

Source: Payne 2002, Land Rights and Innovation

Categories of tenure

Some people argue there is an “evolutionary theory of land rights” ETLR.

Others talk about a betterment path.


Four general land tenure typesFour general land tenure types

TENURE DERIVATIVES(Not exhaustive)

PROPERTY STREAMS PRIVATE PROPERTY NON-PRIVATE PROPERTY

GENERAL TYPOLOGIES 4. OPEN ACCESS

2. STATE3. COMMON / CUSTOMARY

1. PRIVATE / INDIVIDUAL

Public propertyInfrastructure and service

corridors (transport,

communications utilities,

waterways)

Traditional / Customary areaCommunity or

jointly managed public resources

Managed marine areas

FreeholdLeasehold Corporate

Joint TenancyCondominiumCredit tenures

EXTENDED FUNCTIONSand RESTRICTIONS

NO TENURE: Open waters Unclaimed

landTemporary nomadic

occupation

Rent

Mortgage

Easements

Lease / LicenseSacred / spiritual

grounds

Source: Kate Dalrymple, PhD Research 2004


To understand tenures, watch the

land processes

To understand tenures, watch the

land processes


Processes influencing people to

land relationships

Processes influencing people to

land relationshipsCustomary

• Spiritual and physical

• Occupation based

• Subsistence labour

• Traditional uses

• Product or activity

based

Western

• Commoditization

• Production based

• Open-ended

opportunities to create

new commodities


Land ownership processesLand ownership processes

Western

• Exclusive allocation

• Individual

• Corporate

Customary

• Custodial

• Communal

• Occupation


Changing owners processesChanging owners processes

Customary

• Inherit

• Gift

• Occupy

• Leaving fallow or unused

• Marriage

• Dowry

• Divorce

Western• Sell

• Lease

• Inherit

• Credit failure

• Government acquisition

• Relationship failure


Evidence processesEvidence processes

Customary

• Songs, dances,

ceremonies, paintings

and oral traditions

• Decisions of elders

Western

• Formal

documentation - State

guaranteed Certificate

of Title or Deed

• Land Record/Receipt


Boundary processesBoundary processes

Customary

• Topological features,

songlines, spatial

distribution of sacred sites

• “As far as we hear the cock crow”

• To the edge of the forest

Western• Mathematically defined,

demarcated, regulated

through legislation

• Measured and mapped

• Digitally represented


RegistriesRegistries

• Automobile registries (government) Merely manage ownership. Use defined by owner.

• Shares and stocks registries (private) Merely manage ownership. Use determined by owner. Business

management by company executive.

• Mining title registries (government, if….). Allow trading in mining right and management of mining activity.

• Registries of marine interests – off-shore oil and gas (government). Similar to mining registries: work activity focus.

• Land registries Manage ownership of land. Owner determines

use, subject to restrictions that are managed somewhere else.


Formalizing land with registered

titles

Formalizing land with registered

titles

• The registered titles contain the rights and

interests created by the tenure system.

• Registers are essential if land is privately owned. Otherwise there is no way of knowing

who owns what when how and where.


Definition of a land registerDefinition of a land register

• A tool to assist management of resources and

administration of interests in the resources.

• A good system answers five basic questions in relation to (private) land. Where, when, how,

who, what?

• Ultimate test is its relationship with sustainable development.


Types of land registration systemsTypes of land registration systems

Deeds conveyancing system

• Title exists in law

• Title is made up of each transaction in order:

“chain of title”

• Search both chain and

register back through

dealings

• Deeds registration –copy held in register.

Land registration

• Title exists in register

• Each transaction is

registered on the title

• Search only the last entry

on the register

• Ensure most recent

owner is the person selling


History of land registrationHistory of land registration

Deeds systems

• Associated with Roman Dutch law

• Latin cultures in Europe (France, Spain, Italy, Benelux) + South America, parts Asia and Africa

• “Old law” England and colonies, esp USA

Land (Title) registration

1. German style found in Central Europe: Germany, Austria Switzerland and Nordic.

2. UK version 1925 (with general boundaries and ordnance -not cadastral- survey)

3. Torrens version


World map of registration systemsWorld map of registration systems


• Ideally both processes should be managed in one agency in a consistent manner. This is RARE.

• Cadastre is one method of identifying parcels – the best.

• Some registration schemes work without cadastres – UK title registration uses general boundaries and ordnance surveys, USA deeds registration relies on county parcel maps – not best practice.

• Some jurisdictions administer cadastres and registration systemsseparately – eg Germany – not best practice.

• Australia relates land recording and parcel management into landregistration processes – by various administrative approaches.

Cadastres and registration

schemes

Cadastres and registration

schemes


Theory of Torrens SystemsTheory of Torrens Systems

• Registered title is indefeasible and protected, but subject to “paramount” interests.

• An interest is only effective when it is registered, not before.

• Therefore if a forgery is registered by an innocent buyer, the deregistered owner loses land.

• Priority system: race to register.

• Three Torrens principles– Mirror (title mirrors interests in the land)

– Curtain (search of one title only – not a bundle of deeds)

– Insurance (state guarantees registered interests)


Torrens systemsTorrens systems• Now in Australia, New Zealand, Canada (all provinces from

Manitoba to west – eg BC, Saskatchewan, Alberta, North West Territories. And New Brunswick (Ontario is converting; Nova Scotia and Prince Edward are considering),

• Much of Africa, and some parts of states of USA: Min, Mass, Col, Geo, Ha, NY, NCa, Ohio, Wa.

• Many similar systems - Eg in England, Israel, Philippines and Thailand.

• And similar land registration systems based on civil law run in Europe and Japan.

• Torrens system is derived from the Hanseatic system of land registration from 15th century.


Drives for reformDrives for reform

• Move from deeds to land registration• “General Law” conveyancing system evolution• Relied on chains of deeds to form a “title”.• Riddled with opportunities for failure, therefore deeds registration

was introduced.• Combined deeds conveyancing and deeds registration systems exist

in parts of Europe and USA.• USA scheme is not best practice and is supported up by insurance of

title provided by private title insurance companies. • In Europe some deeds registration systems are very effective and

based on sound cadastres so they operate in same way as Torrens systems. These are called “land registration systems”. Eg Germany, The Netherlands, Denmark.


Lawyer oppositionLawyer opposition

The Torrens system was introduced into SA 1858 and Vic in 1862 – expressed public dissatisfaction with lawyers.Also England in 1893 legal profession viewed land registration as -Barely plausible and utterly impractical idea, the outcome of a bureaucratic and freehuntingadministration working on the fanciful enthusiasm of

well-meaning but mistaken and visionary faddists.

Robert TJ Stein and Margaret A Stone, 1991, Torrens Title, Butterworths, p 15


Land registration logicLand registration logic

Land registration only works effectively if -

– ALL TRANSACTIONS AND TITLE CHANGES ARE REGISTERED,

– OR, if interests are off the register, they are defeated by registered interests,

– Only interests easily discovered by register search affect a registered owner.

– (except for paramount interests: eg land taxes, adverse possession)


Bringing land into the registerBringing land into the register

• BRINGING LAND INTO THE REGISTER involves -

• Title verification (either initial grant from state, evidence or adjudication process)

• Boundary certification (including options of general boundaries, ordnance surveys, cadastral surveys)

• Sporadic capture through compulsory registration on transactions, subdivision, or voluntary owner decision or,

• Systematic capture compulsorily covering all parcels in a selected area.


The power of registrationThe power of registration

Two examples of the way registration can assist a nation -



CONSEQUENCES OF NO NATIONAL LAND REGISTRATION SYSTEM EMERGENCY MANAGEMENT eg Portugal in 2005

A Reuters report of 22 August 2005 blames poor land management which made it harder for firefighters in drought-stricken Portugal to tackle the country's worst forest fires in decades. Relatively more forest has burned in Portugal than in equally parched neighbouring Spain and in France this summer -- and experts say this is because of bad land management that makes fire prevention more difficult.

Portugal's biggest problem is the lack of a central registry of land ownership, said Domingos Cartaxo, a forest engineer with the Quercus environmental group. "Land registration is key," he said. "Many laws can be introduced, but if this structural question is not addressed, the fires will continue to burn." If there was a central registry, the authorities could identify forest owners and compel them to create fire walls of cleared land, or plant belts of fire-resistant tree species, making it much easier to prevent or control fires, he said.

Uncertainty over who owns land is made worse by the fact that many Portuguese are abandoning land they own in rural areas, meaning there is no one to monitor many of the country's forests. The planting of large areas of eucalyptus for paper and pulp in recent years has also contributed to the spread of forest fires because they burn more easily than many other species.

Cartaxo thinks a land registry has not been created because it would be too expensive at a time when Portugal is struggling to contain the biggest budget deficit in the European Union. Still, the increasingly severe lack of rain in recent years has given the idea new impetus. "The state needs to take radical measures," the daily Diario de Noticias said in an editorial on Monday, adding that that should include "interfering with property rights" if necessary.

Prime Minister Jose Socrates has vowed to tackle the underlying problems that make the firefighters' task so hard. Luciano Lourenco, head of the Forest Fire Prevention Agency, said some reforms introduced after devastating fires in 2003 were taking effect, but "it is not possible to make changes from one year to the next."


Comparative registration systemsComparative registration systems

United KingdomEnglish registration post 1925 failed at first: slow implementation.

Revived interest in 1970s. Improved in 1980s.

Law rewritten in 2002.

April 2007, 40 per cent of land in England and Wales has not been registered by its owners. More than half of all rural land and rural buildings are unregistered.

Unregistered land operates in a deed conveyancing system, or is converted when there is a transaction.


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