LAND REGISTRATION IN BERMUDA

THE LAND TITLE REGISTRATION PROJECT 2001

- OPTIONS FOR THE FUTURE -

December 2003

John ManthorpeAdvisor to HM Land Registry and former Chief Land Registrar for England and Wales

THE OPTIONS

Should there be any change in present arrangements ?

Inputs:

• The Land Title Registration Project Plan 2001

• The responses to the Plan from main Stakeholders in Bermuda

• The 1991 paper by Sean Johnson on an Integrated Title Register and Land Information system

• Published guidance on land market by Island professionals

• The prevailing systems and legislation

. . .and

• This Evaluation Study and this evening’s discussion

Land - Land Rights - Holders of Rights

Land Rights

L a n d a n d P r o p e r t y

Holders of Land Rights

deed

LAND RECORDING AND LAND TRANSFER

Alternative systems throughout the World

• Deeds in private custody

No shared or public knowledge of ownership or of rights. Proving ownership and making enquiries can be difficult, hazardous and expensive

• Registration of deeds

The document is registered and held in a public office to facilitate access to it and to ‘give notice to the world’- enquiry through the filed documents can be still be difficult and time consuming

• Registration of title A public land register is maintained for each separately owned property indicating also beneficial and subjective rights. The land register is related to a map to facilitate searching and enquiry. The land register is guaranteed by the State as the legal record of the ownership and other rights and is officially updated as transactions occur.

LAWYER OR REAL ESTATE AGENT

NO MAP INDEX

PUBLIC INDEX MAP

TITLE REGISTRY

NOTARY

AGREEMENT BETWEEN PARTIES

DOCUMENT

GENERAL BOUNDARIES

State guaranteed - compensation Paid for errors or loss

PRECISE BOUNDARIES

DOCUMENT DOCUMENT

DEEDS REGISTRYPRIVATE CUSTODY

Appeal to the courts

Limited guarantee

OPTIONS

LAWYER OR REAL ESTATE AGENT

NO MAP INDEX

PUBLIC INDEX MAP

TITLE REGISTRY

NOTARY

AGREEMENT BETWEEN PARTIES

DOCUMENT

GENERAL BOUNDARIES

State guaranteed - compensation Paid for errors or loss

PRECISE BOUNDARIES

DOCUMENT DOCUMENT

DEEDS REGISTRYPRIVATE CUSTODY

Appeal to the courts

Limited guarantee

OPTIONS

ISSUE - 1

A REGISTER OF DEEDS OR A REGISTER OF TITLE ?

Register of Deeds

• With Deeds Registration responsibility for the accuracy of the Document and its legal content remains with the lawyer as now.

• The lawyer is responsible for ensuring the documents are lodged for registration at the Deeds Registry.

• The Registrar is responsible for ensuring that any lodged Deed has been properly drawn, witnessed etc.

• The Registrar is responsible for filing and indexing the relevant documents relating to any property in such a way that they can be quickly located and accessed by authorised enquirers.

• Conveyancers locate existing title deeds by enquiry of the Registry but must conduct usual examination and create new conveyance etc as now.

ISSUE - 1

A REGISTER OF DEEDS OR A REGISTER OF TITLE ?

Register of Title• On first registration (whether systematic or sporadic) the documents of title must be made available to the Registrar for examination and adjudication. Once completed a title register is prepared setting out the address, ownership, legal rights and burdens (e.g. mortgage) that affect the property.

• The title register is in a standard format and supersedes the earlier conveyances as the legal record of the title. Normally the accuracy would be guaranteed by the state.

• Such a register would be held electronically and would be accessible on line by those authorised to inspect and take copies.

• On subsequent registered transactions a guaranteed ‘official copy’ of the register would be issued on request as evidence of title. It would be the basis for taking a sale, purchase and mortgage to contract and completion using simple documentation.

• On completion a document of transfer to the new owner would be sent to the Registry by the owner or his lawyer so that the register could be updated. A revised certificate of title would be issued (or could be accessed on-line).

ISSUE - 2

Compilation of the Register - Systematic or Sporadic ?

• To establish a land register (by first registration), whether of Deeds or of Title, will require that documents of ownership and other rights are lodged at the Land Registry office.

• This can be done systematically property by property (area by area) or it can be done sporadically when a transaction or other event takes place. Voluntary registration is an additional option.

• Owners (or their agents) will have to bring forward their documents for assessment and registration by the Land Registrar. Others with legal interests in a property (e.g. mortgagees or neighbouring owners) may need to be consulted as to the outcome of the registration process.

ISSUE - 2

PROS AND CONS OF SYSTEMATIC OR SPORADIC COMPILATION

Systematic

• Centrally controlled

• Planned timetable to ultimate completion

• Inactive properties registered

• Need for existing owners and others with legal rights (or their agents) to offer up documents of title or mortgage etc.

• Cost incurred by owners even where no future transaction envisaged

• Anxiety and, potentially, dispute can be generated particularly if boundaries become an issue

ISSUE - 2

PROS AND CONS OF SYSTEMATIC OR SPORADIC COMPILATION

Sporadic

• Registration triggered by event - usually sale

• Application made by lawyer on completion of purchase to register new owner and any mortgagee

• Registration undertaken by Registrar at a time when the title has already been examined and accepted by the purchaser’s and mortgagee’s lawyer

• Overall cost of compilation per property reduced

• No ‘disturbance’ of settled ownerships

• Progressive compilation with rate governed by market activity - option to ‘sweep up’ ultimately by systematic approach. Longer time-scale for complete compilation.

• Compilation can be supplemented by voluntary registration

ISSUE - 3

MAPPING AND BOUNDARIES - PRECISE OR GENERAL ?

• Any worthwhile Title or Deeds Registration system must enable enquirers to locate the property on a map so as to identify the unique reference numbers which enable access to the relevant land registers or filed Registry documents of any property.

• The minimum requirement is an Index Map for the whole territory, based on a reputable and up to date survey at a large enough scale to identify individual parcels.

• The general extent but not the precise ‘legal’ boundary of each registered property would be delineated. The unique title number of each property would be recorded on the Index Map.

• Where digital mapping is available this would be the ideal base for the Index Map. The general extents and unique title number references would be recorded on the Index Map at the time of first registration.

ISSUE 3

MAPPING AND BOUNDARIES - PRECISE OR GENERAL ?

Precise boundaries• Precise or fixed boundaries require that all properties are related to a single, accurate, large-scale map of the jurisdiction based on a national grid or co-ordinates.

• The precise ‘legal’ boundary of a property must be determined so that any physical feature defining the boundary can be re-established exactly in the case of its destruction or removal

• Implicit in a system of registered fixed boundaries is that these are established with the concurrence of neighbouring owners

• The process of establishing the precise boundaries requires correlation of the conveyancing plans of adjacent properties and their positioning onto the national map

• Owners can be defensive and anxious where a government sponsored survey seeks to examine their property boundaries

• Issues which may otherwise have lain dormant can be the basis of dispute particularly where documentation is silent as to ownership of fences etc or the plans are ambiguous.

• The ‘ultimate’ system but precise boundary demarcation is expensive

• Transition from deeds in private custody directly to a precise boundary system is a major undertaking

ISSUE - 3

MAPPING AND BOUNDARIES - PRECISE OR GENERAL ?

General boundaries

• The Registrar records the general extent of the registered property on a large scale topographic Public Index Map

• Extents are derived from the plans attached or referred to in conveyances but any evident discrepancy between the physical features on the Index Map and the conveyance plan are investigated by survey, enquiry or requisition

• The accuracy is limited to that obtained by the tolerances of the survey and the map. No specific check is necessarily made on the ground nor are the precise position of the boundaries guaranteed ‘to the last inch’

• The basis of the general boundary concept is that purchasers ‘buy what they see’ and the onus is on them prior to purchase to be satisfied that the defined extent of the property on the ground is what they are contracting to buy.

• It is possible that provisions can be made to allow those who elect to have their boundaries fixed to do so with the agreement of their neighbours and at their expense.

LAND REGISTRATION - POLICY AND SYSTEM OPTIONS

Register of Deeds

Systematic compilation

General boundaries

Guarantees and compensation by Registrar with appeal to the Courts

Open access to the Register

Self financing

Publicly appointed Notaries

Register of Title

Sporadic compilation

Precise boundaries

Disputes and claims resolved by the Courts

Restricted access to the Register

Subsidised or profit making

Private professional Lawyers and Real estate Agents

LAND REGISTRATION - POLICY AND SYSTEM OPTIONS

Register of Deeds

Systematic compilation

General boundaries

Guarantees and compensation by Registrar with appeal to the Courts

Open access to the Register

Self financing

Publicly appointed Notaries

Register of Title

Sporadic compilation

Precise boundaries

Disputes and claims resolved by the Courts

Restricted access to the Register

Subsidised or profit making

Private professional Lawyers and Real estate Agents

Creating new rights in land

Agreement

Agreement Purchase, Loan or other right

Contract

Adjudication* Registration* Updated Land Register*

Search of land register*

Registration RecordsRegistration RecordsRegister Register

Title PlanTitle Plan

Index MapIndex Map

Paper mapping archivePaper mapping archive

Scanned documentsScanned documents

The RegisterThe Register

Paper Index MapPaper Index Map

National Objectives

Economic successSocial stability

Need for secure land rights system

Creation of Land Registry

Legislation

I nstitutionalPosition

Financing

The Land Registry in action

Customer Services

I nternalorganisation

Staffing andtraining

Registrationdevelopment

I nternalprocedures

Financialpolicy

I nformationTechnology

Land Registration – at the heart ofsocial stability and economic success

PerformanceTargets

Public - Private Players in the Land Market

MunicipalityLand

RegistryMinistry of

Finance

LendersLawyersEstate Agents

Citizens Business

Surveyors

Private contractors - support services

Central and LocalGovernment

LAND AS THE SOURCE OF ALL WEALTH AND DEVELOPMENT

VALUATION BASED ONLAND MARKETS

REGISTRATION OFLAND RIGHTS

LAND RIGHTS

LAND USE RECORDING

SYSTEMS OFLAND

TAXATION

SECURITYOF TENURE

SYSTEMSOF LAND

TRANSFER

LANDPLANNING

FINANCED PUBLIC

SERVICESSOCIAL STABILITY ECONOMIC GROWTH

PRODUCTIVE ANDSUSTAINABLEDEVELOPMENT

L A N D

DEVELOPMENT OFLAND AND MORTGAGE

MARKETS

Land Administration Structure

CitizensBusinessesPublic Authorities

Environment Justice Environment Agriculture,

Municipalities

National Mapping

Land Valuation and

Taxation

Land Registration Land Use

Finance

LAND RECORDS AND INFORMATION

LawyersNotariesBanksLendersEstate Agents

Property Market activity on the Land Register

Daily Annual (millions)

• Is the land registered ? 9960 2.54m

• Copy registers and title plans 15140 3.86m

• Searches securing priority 12000 3.06m

• Registered transactions 14310 3.65m

• All activity on the register 84000 13. 11m

• Number of registered titles (31.3.2002) 18.4 million

In addition 318623 new First registrations (1250 a day) were handled

(Source: Chief Land Registrar’s Annual Report 2001-02 - all totals rounded)