Computerization of Deeds, what land owners should know
Kirthimala Gunasekera Attorney-at-Law
International economists have advised all developing countries to
formalize land rights to encourage investors. Their aim is to improve
the quality, safety and speed of transactions relating to sale and
mortgage of lands.
A revolutionary concept to stabilize land rights to reach prosperity
has been taken up by the United Nations to be included in the Millennium
Development Goal Agreement signed in 2000 by all nations including Sri
Lanka to reach prosperity in the year 2015.
Following this advice, the World Bank had introduced technology and a
new registration law to stabilize land rights under the name of Bim
Saviya http://bimsaviya.landmin.gov.lk/. to Sri Lanka.
A surveyor |
The law has come into operation under the Act No 21 of 1998. The new
system is expected to make all lands readily acceptable to banks,
without lengthy searches required for transactions. The electronic
services will enable professional conveyancers and mortgage lenders to
submit applications and reports online in the future.
Currently access to title information can be made at the computer
terminals of several land registries in Sri Lanka including Nugegoda and
Homagama.
The operation will soon be extended to Colombo.
Owners will be granted a certificate which is a simple computer print
out, known as the Himikam Sahathikaya in lieu of their deeds.
Computerization process is described below for readers to understand.
Manual registers will be replaced by computers - The entries in
computers will furnish all necessary information about the present owner
and the land and other information such as owner’s rights, encumbrances,
express conditions, caveats.
New system for plans - All private lands will be resurveyed by the
Survey Department and digital maps will be issued to owners. All parcels
or blocks of land with road accesses of a given area will be on a plan
called a Cadastral map and will be registered in the land registry.
Blocks of land of owners will be digitally registered under the
owners title. The block or parcel of land will be given a unique 12
digit number which indicates the district, village and block parcel.
Number is important and will be the unique identifier for each land. It
could be considered as your pin number for the future.
Deeds will be replaced with signing of regulated forms prescribed by
the new law.
Once the forms are lodged by a notary the certificate similar to a
Crown Grant called the Himikam Sahathikaya [HS] will be issued to the
owner. The land title is guaranteed by the government and the previous
owners defects will not be transferred to new owners. Only Notaries
could provide legal advice on the preparation or content of Land
Registry forms.
The HS issued by the Lands Registrar operates much like a car title,
listing the name of the owner with leases, mortgages and other
encumbrances. As such Himikam Sahathikaya will be issued for Transfers
and Gifts, all other transactions such as mortgages leases agreements
will be subordinate and they will have no paper documents.
They will be endorsed on the HS as encumbrances.
The contents of the new deed is simple, it will have only the 1] Name
of the owner 2] Name of the land with the 12 digit number. 3] The
drawing of the digital plan.
The First Registration is the term given to the process where deeds
will be replaced with Himikam Sahathikayas for the first time for all
owners of land. The age old bound paper records and deeds of owners will
be eliminated after the computer lodgments or the First Registration.
The rights mortgagees, lessees and other interest holders such as
those with agreements to sell will be included in to the computers
provided they are duly registered in the correct bound volumes and
folios in the existing registers.
First Registration is a process of copying the title from the
existing registers to computers. It is important to be present in the
country, to ensure correct and accurate lodgments of land ownership,
agreements, leases and all other interests to lands especially if the
land is a bare land and is not occupied.
It is advisable for owners to check the accuracy of the existing
registers, connect folios, adjust damaged folios and register all the
unregistered rights to land as the computer entries begin where the
manual register ends.
There are 13 Government offices at the moment in several districts to
carry out the First Registration process, they operate under the Title
Settlement Commissioner.
The officials will collect information from each land owner after due
notice. Further enquiries from http://bimsaviya.landmin.gov.lk/.
First Registration is an important cross road for owners as
information entered on the electronic land registers will be final.
A prospective purchaser, for example, is not required to look beyond
the ownership recorded on the computer.The general principle is
therefore, the registered proprietor shall be unfettered by any
encumbrances of whatever fashion unless noted on title register and is
the absolute owner of the property described.
The Lands Ministry has provided for land owners to apply for Himikam
Sahathikaya or await until the Government operates the area where the
lands are situated by a Gazette Notification.
Owners need to be knowledgeable about the two systems operating in
the country, Leases, mortgage bonds or normal lengthy deeds will not be
accepted for registration by land registries where the computerized
system operates. All paper transactions for gifts, transfers, mortgages
or leases will be invalid in areas where the new system operates.
Clarification could be made from registrars of land, before
transacting.
The two systems of law will operate for a long period until the
completion of the computerization of all the lands and therefore it is
important for owners to know the validity of the documents.
The new system is not judicially friendly and there are a few
judicial remedies for owners whose rights are taken away by fraud. The
Land Registry is expected to guarantee land title and compensate owners
for their losses.
Therefore maximum precautions are taken to ensure the safety of land
title. There is an endorsement on the Himikam Sahathikaya not to issue
copies of the document and the Land Registry has taken steps to handover
the document only to the owner.
Third parties are not permitted to collect the document. Owners need
to strictly observe the instructions. The 12 digit identification number
is sufficient to make searches or to conduct any other business and the
certificate should be dispensed with only after consideration is fully
paid on the next transaction.
Even under the old system copies of documents should not be given to
third parties unless through notaries.
Frequent cases of fraud are reported, where Powers of Attorneys are
granted, a property is empty or is bought to let where the owner is
abroad and is absent, where the owner is infirm or in a home, or when
documents are unregistered.
As said earlier the party who has been replaced as an owner on the
electronic register becomes the legal owner while the other is
compensated as to offset the loss by the Government.
This is said to be a common concept of efficiency used by scholars in
economics called Pareto efficiency [better known to those who have
studied law and economics.] which is if it could not be changed so as to
make one person better off without making another person worse off.
The law began in Australia to encourage the private sector who
requires lands free of claims, to contribute to the economy of the
country. Countries are investing on research programs on improving the
system.
Some countries have worked out methods to retain the existing deed
system with the cooperation of academic research and comparative study
of international documents. |