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Serving Sri Lanka

This web log is a news and views blog. The primary aim is to provide an avenue for the expression and collection of ideas on sustainable, fair, and just, grassroot level development. Some of the topics that the blog will specifically address are: poverty reduction, rural development, educational issues, social empowerment, post-Tsunami relief and reconstruction, livelihood development, environmental conservation and bio-diversity. 

Sunday, April 02, 2006

Forgery of title deeds and the state of administration of land

Daily News: 18/03/2006" 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.

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.

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.

Blogger adrin said...

What a descriptive blog!!!

Code is - Legal advice forum¬† ¬†  

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