Forgery of title deeds and the state of administration of land
Kirthimala GUNASEKERA, Attorney -at-Law
LAND OWNERSHIP: Forging signatures of the owners of lands and
attesting documents is now a common occurrence in our country. This is
in addition to our deteriorating land policies which have caused an
unfriendly investor environment.
Acquisitions at random change of polices without proper knowledge
enacting and withdrawing laws relating to land have all diminished the
value of ownership and today we have more rejected title than those
accepted titles to land.
It is a task for any Notary to recommend title today as it would not
be known which Authority would have rights over land, what are the
forged deeds etc. this is a major draw back for entrepreneurship.
Success of the new Titling Act which has come into operation is
dependent on the Government Departments and the administration dealing
with the prevailing laws.
Thus for the next twenty years until the Act is fully established
serious thought should be given to the conditions prevailing in the
administration procedures of the relevant departments especially the
Land Registries.
The Land Titling program in Thailand has been a success as the
government of Thailand and the relevant departments concerned together
with officials took serious measures and interest to monitor the
administration.
There was public debate and serious notice of same by the government
of Thailand it was not left in isolation.
Awareness
The owners of lands should be more aware of their rights and duties
and be vigilant of procedure under the law with regard to issuing copies
of their Title Deeds and exercise of the possessory rights.
I could state many examples of pending cases. Recently a caretaker
obtained a copy of the Deed and acted as the broker to the owner.
A Notary connived with him executed a Deed of Declaration stating
that the caretaker is the owner. Thereafter sold the land without the
knowledge of the owner, with the signature of the caretaker.
The owners should know that their Title Deeds should not be given to
any one unless through ones Lawyer or Notary. Who will then be
responsible for any forgery.
Photocopies are very often issued to third parties from which
forgeries are made, properties are transferred without the knowledge of
the owner.
The deeds of Declaration confirming illegal title, vesting title
together with forgeries will have its consequences. The new Titling Act
depends totally on the Land Registries. Over a period of 20 years one
could imagine the state under prevailing malpractices.
Even to day the law relating to Land is sufficient. It is very
essential to administer the law to keep the books in the Land Registries
in order without extra legal practices.
In the years to come the documents will be badly handled under
prevailing conditions in the Land Registries. Success of the new Titling
Act will bear the consequences. Serious consequences could be envisaged
if we ignore the prevailing systems and conditions of the Land
Registries.
Notaries are attesting the forged deeds in spite of the strong
provisions that are available to protect land title.
Notaries Ordinance, Prevention of Frauds Ordinance and Registration
of Documents Ordinance empowers Notaries and the Registrars of Land to
safeguard the Land Titles of the country.
Responsibilities
In fact the responsibility under the Notaries Ordinance is judicial,
as it states that a Notary cannot authenticate or permit change of
ownership to land or execute a deed unless the Notary ascertains that
the person who claims to be the owner or signs as the owner has been
identified.
The law states:-
"A Notary shall not attest any deed or Instrument in any case in
which the person who claims to be the owner is unknown the exception
being Notary should be well acquainted with the witnesses there to who
signs the deeds, in which event burden of identification of the owner is
left to the witnesses."
Notarial practice has gained momentum with expansion of the economy.
Institutions such as Banks, Financial Companies and Property Sale
Companies are established where, Notarial work has to be speedily
carried out.
In such circumstances it would be a task to know each client required
by law. However there should be sufficient enquiry and investigation
with regard to ownership. Due diligence should be exercised by a Notary
regarding identification of the owner to comply with the law.
If however such a Notary is exposed or has inadvertently attested a
Deed where ownership is in dispute the punishment under the same
Ordinance is extremely severe. It can be imprisonment simple or rigorous
for any period up to five years.
Notarial practice requires experience, knowledge of drafting and the
knowledge of Laws relating to land. The Law requires that Notarial work
should be done in a Notary's office.
All parties signing that is Notary, executants, witnesses should be
present together in the office of the Notary when signing documents.
These laws were carefully drafted and they enabled the identification of
parties to prevent forgery.
Those who practice as Notaries especially the juniors tend to perfect
printed forms to execute deeds. Performing Notarial practice without
proper knowledge and with disregard to the existing laws, has caused
sever problems today with regard to validity of Deeds.
Monetary gain has overlooked all principles, Generations grow up
accustomed as it is to greater emancipation of habits and thoughts lean
less heavily on Law wisdom and advice of its forebears.
I have met junior Notaries who have told me that they have obtained
signatures by sending documents through clients to private houses. In
fact printed forms are perfected without any knowledge of the above.
Therefore this is a suitable time for those in authority to make a
move to establish a proper Land policy with the help of the new Act.
Land Registries
The statutory duty extends thereafter to the Land Registries, which
register and store the deeds. The Registrars and their respective
officers are expected statutorily to perform an important role in
maintaining discipline to ensure and establish the rights of ownership
to land.
Registration of Documents Ordinance confirms many statutory
obligations.
These Institutions however have lost their credibility. They do not
operate in the best interest of the owners, to protect land rights.
The Land Registries are the guardians of all documents relating to
land. All Land Registries are custodian of copies of Deeds which bear
stamp duty. They maintain a specified set of books from which devolution
of title could be obtained and the ownership to land could be
established.
All deeds executed by Notaries are expected statutorily to be in to
volumes consecutively numbered and be available for examination in the
respective Land Registries. Unfortunately the land Registries do not
follow the law.
In the early days the officials operated with responsibility to
safeguard the documents. I must place on record the valuable
contribution made by past Registrars which enabled our fore fathers to
maintain title to lands. If the existing law was properly executed we
would perhaps not require the new Titling Act.
There was a time junior Lawyers entered the Land Registry with the
seniors who passed on the ethics with regard to examination of books in
the Land Registry. Maintained silence and if we required any document or
books tapping slowly on the table with a pencil was the procedure.
The examination of documents were done with care and responsibility
under supervision to prevent any malpractices. The procedure and the
responsibility of those in charge was similar to a public library.
People now walk in and out of these Land Registries. Documents are
issued for monetary gain.
Police Officers investigating cases relating to Forgery have informed
that they cannot obtain a copy of a Deed, from the Land Registry to
prove ownership. They report they are lost. Even to court it is reported
lost. This explanation is similar to explaining that artifacts are lost
in a museum and nothing can be done.
Whilst the registration of Documents Ordinance status:-
"Every Registrar shall from time to time cause all duplicates and
copies transmitted or delivered by any Notary under the provisions of
the Notaries Ordinance, to be bound in convenient volumes shall keep and
preserve the same in his office."
The deeds are not bound and are kept in enclosures that are unkempt.
A copy of all deeds executed by every Notary compulsorily has to be
forward to the Land Registry under Notaries Ordinance.
Even if a Notary dies the copies retained by the Notary has to be
delivered by the heirs to the Land Registry, such that they are kept
under proper custody. The heirs do not have a right to keep them.
The above Laws relating to Title to Land shows the responsibility of
the Legislature who has made adequate laws to establish and maintain a
proper land titling system.
The above indicates the standards the law makers required from the
Land Registry and the practising Notaries with regard to their integrity
and knowledge.
Business of Real Estate is not regulated nor governed by rules.
Anyone is authorized to sell land and operate without any licence. They
themselves do not realise the gravity of handling Title Deeds or their
copies.
The deeds of Declaration vesting title together with forgeries will
have its consequences. The new Titling Act which depends on the Land
Registries will take a long period may be over 20 years to give us the
benefit.
In the meantime the documents will be badly handled under prevailing
conditions in the Land Registries. The result would be very detrimental
to the titling Act as it has to depend on the books of the Land Registry
to operate. May be we will require more amendments.
Apart from the above all Authorities without notice have rights over
land
Eg. Environmental Authority; Coast Conservation Dept.; Road
Development Authority; UDA; NHDA; Wild Life Dept.;
Fauna and Flora Protection Ordinance and Reclamation Board.
(Which has acquired land and has not activated a program for years)
Therefore all parties handling the land policy in the country should
be alert and contribute with public debate. Public debate is very
essential to arrest this situation. As collective responsibility of the
people, administration and the government is essential.
Secret of development
In conclusion it could be said that for any Document under the new
Titling Act to be a success as in the developed world or as in Thailand,
monitoring the existing laws and preventing all extra legal methods
adopted to established title to land is imperative.
Further a knowledge of all the prevailing methods of title acceptance
should also be studied such as Insurance etc. which presently safeguard
possessory rights rather than rights of ownership.
The secret of development in the developed countries is the strong
land policy. Their forefathers planned for the future.
In these countries any business could commence with the title deed of
the person which is reduced to one page. The searching for the previous
owners or title searches are not heard of. Deeds are not subordinate nor
are they devalued by acquisitions or over taken by any other
authorities.
The Title Act may formulate a document but still one would have to
search for the subordination of the document if we do not rectify and
take notice of above.
Fifty years ago the rulers of developed nations were focused, they
considered title to land as a source of wealth, a stake in society, a
voice in politics and refuge in market storms. |