The importance of the subject of conveyancing and the protection of land rights.
The importance of establishing private property rights is a subject widely spoken about and there is plenty of literature on it. The conveyancing industry is partially neglected. It is important to solve many of the problems of today relating specifically to land fraud, yet the conveyancing process has not changed for centuries and is entirely dependent on honest professionals.
Today we need a global awakening as in United Kingdom during the 19th century. At the time pressure arose from land owners for the establishment of an efficient land registration system. This resulted in lot of changes to the conveyancing laws. The main author, Sir B.L.Cherry practiced as a conveyancer and was a drafter for parliamentary proceedings, and he revolutionized the land law in the UK when the Birkenhead Acts were passed into statute. Their main object being simplification. Similarly at present we require zeal to reform the notoriously imperfect global land market..
Conveyancing and Property Lawyer Part 1 by E.R.S.R Coomaraswamy describes a conveyancer as being not only a notary who writes or copies deeds, but he is someone who knows all branches of the law and the principal features of every deed. He also knows how to apply his knowledge of the law to protect property rights. Conveyancing and land registration law is a dynamic process, and it needs constant monitoring.
Ownership of all other valuables a person has can be managed by themselves, land ownership however is a unique system because the owner is kept at a distance. Documentation, even the identity of the owner, registration and all other arrangements are made by professionals at a great expense to the owner. Yet the expenses incurred do not result in after sales service nor do they protect the rights today from being taken away by land fraud or by government expropriation.
A major set back is the gap between the owner and a knowledge of the acquisition of and the protection of immovable property rights. It involves a complicated legal process which is extremely expensive and which is left to solicitors, notaries, appraisers and officers of government land registries. They are well acquainted with the principles of land acquisition and unfortunately are presently aiding and abetting illegal land transactions.
So what are we to do? I could suggest the following-.
- Enhancing the value of the deed for the benefit of owners.
Using a biometric system and photographs allowing an owner to identify himself without leaving it to a witnesses. Today ground breaking software is available which recognizes fingerprints by matching them at a speed of some 30 000 per second.
- Empowering owners to maintain their property rights.
This means having an efficient deterrent system of Criminal Law to maintain the rights which could be enforced within at least 3 months. The legal procedure today is time consuming and costly.
- A study of the legal principles of a Deeds Registration system as opposed to a Title Registration system.
Study the benefit of having archives and registries and the right to regain ownership as one has in the Deeds Registration system - Hong Kong offers consumer protection and this has helped to eliminate fraud. A Title registration system needs an archiving system to be established to return to the common law as is the case in Canada. Judges need to be trained to interpret the law to grant remedies to the owner.
- Methods to resolve land rights for the informal sector without title registration.
Methods to recognize customary rights - Defective title insurance in Sri Lanka was a brilliant idea in 1971. Books such as Title Insurance by Dr A.R.B.Amerasighe (he established the unique system), and research by the Universities of Monash and Oklahoma and other universities are helpful.
- Absence of a common global forum
A great vacuum exists in the absence of a common global forum to discuss and disseminate knowledge relating to property rights. The amazing extent of the pervasiveness of fraud is alarming. A lack of interest in conveyancing practices and the publicity of important information relating to land rights encourages land fraud. The methods of fraud and malpractices are shared and are fast evolving.