REGISTRATION OF IMMOVABLE PROPERTY

Details: Category: Land Law; 25.Dec; Hits: 7736

Introduction

Problems concerning the appropriate use of land resources and improved land management are important worldwide. Due to this, they must be given greater attention. Information related to specified units of immovable property units is a cornerstone of Land Information Systems since data concerning ownership and other property rights, boundaries, areas, land uses, market and assessed values, buildings, etc., are all interrelated. This chapter is devoted to the problem of developing efficient information systems based on such land units by way of putting in place efficient land registration and cadastre. It presents the meaning, nature, types, and purposes of cadastre and land registers. It also treats the types of institutions of cadastre and land registration.

Objectives

At the end of this Chapter, the student will be able to:

Define registration of immovable properties.
Explain the significance of cadastre and land register.
Distinguish between various types cadastre and land registration.
Identify the types of institutions of registration of immovable property.

Cadastre and Cadastral surveying

Overview

Cadastre is one main method of Land Information Systems. Cadastre is just a system of writing or recording individual land parcels or real properties. In this section we shall try to elaborate the concept and meaning of cadastre, cadastral agencies and its essential contribution to our legal system and economic growth.

Objectives

Having read this section, one can:

Define cadastre.
List down the advantages of cadastre.
Compare and contrast rural and urban cadastre systems in Ethiopia, and

Identify the institutions of cadastre.

Meaning of Cadastre and Cadastral Surveying

A cadastre is just a system of writing or recording individual land parcels or real properties. In other words, it is a systematic description of the land units within a given area. Technically, this description is made by the cadastral maps which represent the graphical indices of the individual parcels showing the relative location of all parcels in a given region, and by written or textual records which represent the attribute files of the cadastre, in parallel. The most essential information in the textual files is the identification number and the area of the unit, usually differentiated by the type of land use.

A cadastre normally provides parcel-based information (parcel-based Land Information System). A parcel is a unit of land with homogenous tenure interests, having a unique owner/tenant, land class and use, and bounded by wall, fence, bond or boundary markers. The information is geographically referenced to unique and well defined units of land. The individual parcels are defined by formal or informal boundaries demarcated or permanently marked with stones, concrete beacons, fences, hedges, ditches and so on. Each parcel is given a unique code or parcel identifier which may include addresses, co-ordinates, or lot numbers shown on a survey plan or map.

The definition of cadastre has varied from time to time depending on the increased improvement it witnesses. A very authoritative definition is given by Professor Jo Henssen:

Cadastre is a methodically arranged public inventory of data concerning properties within a certain country or district, based on a survey of their boundaries. Such properties are systematically identified by means of some separate designation. The outlines of the property and the parcel identifier normally are shown on large scale maps which, together with registers, may show for each separate property the nature, size, value and legal rights associated with the parcel. It gives an answer to the question where and how much.

This definition is very appropriate for the existing cadastral situations. Nevertheless, another even more authoritative definition, called Cadastre 2014, is given implying the highest stage of improvement for cadastre:

Cadastre 2014 is a methodically arranged public inventory of data concerning all legal land objects in a certain country or district, based on a survey of their boundaries. Such land objects are systematically identified by means of some separate designation. They are defined either by private or public law. The outlines of the property, the identifier together with descriptive data, may show for each separate land object the nature, size, value and legal rights or restrictions associated with the land object.

In addition to this descriptive information defining the land objects, Cadastre 2014 contains the official records of rights on the legal land objects.

Cadastre 2014 can give the answers to the questions of where and how much and who and how.

The basic differences between these two definitions can be summarised in to three. Firstly, in Cadastre 2014, the land parcel can be demarcated or defined by either private or public law; but Henssen’s definition seems to refer only to the private property law aspect. Secondly, Cadastre 2014 clearly suggests that the cadastral data may show also restrictions on top of the rights for each parcel. But Henssen’s definition does not or does so only impliedly. Finally but most importantly, Cadastre 2014 represents a comprehensive real estate registration system by going to the extent of replacing the traditional, separate institutions of ‘Cadastre’ and ‘Land Registration’. To the contrary, Henssen recognises the two institutions distinctly.

The Cadastre is a public, up-to-date land information system (LIS) that efficiently supports public administration of real estate. There is a growing need all over the world for land information as a basis for planning, sustainable socio-economic development and control of land resources. LIS is an important concept. The best known definition for it is given by FIG:

A Land Information System is a tool for legal, administrative and economic decision-making and an aid for planning and development which consists on the one hand of a database containing spatially referenced land-related data for a defined area, and on the other hand, of procedures and techniques for the systematic collection, updating, processing and distribution of the data. The base of a land information system is a uniform spatial referencing system for the data in the system, which also facilitates the linking of data within the system with other land related data.

There are different opinions regarding the relationship between LIS and systems for geographical information (GIS). The above definition seems to place GIS under the umbrella of LIS. But the more convincing claim is that LIS is the subset of GIS. This opinion is expressed in the following figure.

Fig. 1 Hierarchy of geographical information systems

In any case, cadastre and LIS are just the two sides of a coin. Nobody can understand the one without the other. Land which is the nucleus of the two concepts can be viewed from three different respects: land as a physical object, land as fiscal object and land as a legal object. Land as a physical object refers to the land use planning. Land as a fiscal object is addressed through a public valuation as a basis to levy land related taxes, important public revenue. Land as a legal object refers to the public provision of security of property rights to land such as ownership, mortgage, easements and leases.

In order to cope with the great diversity of needs, the Bogor Declaration states that cadastral systems should:

Be simple and effective,
Be adaptable to rates and patterns of populations,
Provide access to land, security of tenure and trading of land rights,
Provide a vast array of options,
Include all types of lands- state or private, and
Be part of a national spatial data infrastructure.

Only then we can consider a cadastral system as an effective tool for safeguarding the society’s property rights thereby promoting economic development.

What do you think is cadastral surveying? Have you ever heard the word “surveying” before? You do not have to necessarily be an Engineer or surveyor in this regard. Nowadays, these words are becoming very powerfully used within the legal regime.

Boundaries are the main object of cadastral surveying. Normally other features, such as roads, water courses, land use boundaries, buildings, etc. are included, but the primary purpose of cadastral surveying is to define the land unit both on the ground and in the cadastre and land register. Cadastral surveying essentially involves the determination of the boundaries on the ground, the survey of the boundaries, and the demarcation of the boundaries.

What then is demarcation?

Demarcation is an operation which includes both legal and technical aspects. Let us consider two types of cases.

The exact position of the boundaries is fixed on the ground in the presence of the parties. If dispute arises, the boundary should be determined by an officer or a court. After the positions of the boundaries have been fixed, they are permanently marked with pipes, stones, concrete beacons, etc., if existing fences, hedges, and ditches are not considered sufficient demarcation.
The boundaries are, as far as possible, recognized on the ground. When necessary, they may be surveyed or identified in aerial photos in combination with simple ground surveying.

Classification of Cadastre

There are many ways by which cadastres are classified. Though the ultimate purpose is fundamentally the same, that is to support sustainable development, there are different forms of managing cadastre among countries all over the world and even within a single country. The factors that influence the format and management of cadastre are the variations in history, culture, pre-existing land tenure arrangements, area, physical and economic geography, population size and distribution, the level of technology, traditional institutional arrangements, land and property law arrangements, and land policy priorities.

Thus cadastres may be classified based on the primary function for which they are established. Some cadastres may be formed for taxation, others for supporting real estate transaction, and still others for land distribution. Cadastres may be classified based on the types of rights registered. For example, some cadastres may record ownership rights as in many European countries, others use or possession rights as in present Ethiopia, and still others may register other interests such as mineral leases. Cadastres may be classified according to location and jurisdiction. Hence some countries may have separate cadastral institutions for urban and rural areas while many others may have a unified cadastre. Also some countries may have a centralised cadastre and others may have a decentralised one. Cadastres may also be classified based on the method of collecting land information. These can be collected through ground surveys tied to geodetic control, also called conventional system, or through uncoordinated ground surveys and measurements also called non-conventional system, or through aerial photography, or by digitising existing historical records, etc.

Purposes of Cadastre and Sustainable Development

Why does a society need cadastre? What are the justifications for an effective cadastre? How does it accelerate sustainable development? These questions must be clearly and adequately addressed to help policy and decision makers at various levels adopt a clear vision and strategy for land administration.

Firstly, a cadastre helps a society to ensure its sustainable development in quite many ways. Cadastre brings about a guaranteed ownership and secured land tenure. The compilation of land information in the cadastre should provide formal identification and, in some systems, legal proof of ownership. All interested persons should be certain as to which people have interests in the land parcel and to what extent (limitations).

Cadastre provides security for credit and improves investment. Certainty of ownership and knowledge of all the rights that exist in the real estate provides confidence for banks and financial organisations to provide funds so that land owners can invest in their land. Mortgaging real estate is one way to acquire capital for investing in improvements. Real estate owners can then construct or improve buildings and infrastructure or improve their methods and management of the land, for example by introducing new farming techniques and technologies.

Further, developing trusted and enduring systems of land tenure and land transfer encourages investment in a wider sense. This means where confidence is lacking in land tenure (ownership or possession), no investment will be risked, no improvement or development will be made onto the real estate, and consequently no economic or social benefit will be achieved thereby rendering cadastre impotent to contribute to the development of the economy.

Cadastre helps develop and monitor land markets. As the famous Hernando de Soto nicely puts, “Any asset whose economic and social aspects are not fixed in a formal property system is extremely hard to move in the market.” On the other hand, the introduction of a cheap and secure way of transferring real property rights means that those who wish to transact in land can do so with speed and certainty. There is no way for dispossessing owners without their interest as their property right is guaranteed. A real estate owner or possessor can see the status of his/her property right as an underlying principle of cadastre is that it must be public. Any person irrespective of who he is and where he comes can buy/lease a real estate with full confidence knowing that the person whose name is recorded in the cadastre is the only guaranteed and true owner/possessor.

Cadastre being the clear means of formally representing real estates, whether by paper or computers, helps all persons across the world convert their tremendous assets (e.g., houses, land parcels, forests, etc.) into a usable capital and wealth. In his widely accepted book ‘The Mystery of Capital’, Hernando de Soto has adequately demonstrated that the major stumbling block that keeps the Third World, as clearly opposed to the West, from benefiting from capitalism is its inability to produce capital. The reason for this inability is the failure to set an effective cadastre and land registration or formal representation. Hernando de Soto puts this in succinct terms:

Capital, like energy, is also a dormant value. Bringing it to life requires us to go beyond looking at our assets as they are to thinking actively about them as they could be. It requires a process for fixing an asset’s economic potential into a form that may be used to initiate additional production. (Emphasis added).

Cadastre highly enhances real estate taxation. Effective cadastre will improve efficiency and effectiveness in collecting land and property taxes by clearly identifying the real estate owners. The more so because developing countries like Ethiopia need to increase their tax-based revenue from land to reduce aid dependence. Fiscal cadastre has been historically the starting point for modern cadastre in many parts of the world.

Cadastre is an effective tool to protect State lands. Some land may be reserved for the State to benefit the community. The State land or property must be protected for example from encroachment by farmers onto land beside roads, schools, or prison office lands, etc. or from attempts by squatters to settle on vacant land that is being held for future use.

Cadastre helps reduce land disputes. Cadastre involves surveying of land boundaries and demarcation. This can reduce the dispute over land and its boundaries which otherwise gives rise to expensive court litigation there by creating court congestion. Land cannot be put onto the market or to better use where a lawsuit is pending as no potential investor is likely to be committed to develop the land in such a scenario.

Cadastre plays quite a significant role in formulating, facilitating and monitoring land reform or policy. It provides excellent opportunities for identifying problems associated with the development and implementation of land policies. The FIG Statement on the Cadastre identifies many matters which can be monitored and controlled with the assistance of Cadastre:

The size of parcels, both maximum and minimum, for instance to prevent excessive fragmentation,
The shape of parcels, to avoid uneconomical subdivision design or inefficient road and water system, etc.,
Reallocation of land rights to improve social and economic policies through subdivision, land consolidation, land reallotment, etc.,
Land use, for instance agriculture or to ensure that low-cost public buildings are allocated to the right group of people,
Control and measures taken to implement social programs to improve access to land ownership by women and minority groups,
Valuation of land for the collection of government taxes and rates,
Collection of contributions to improve common facilities, such as water systems, etc.,
The value of land as a result of development, and
Acquisition of land for public or common purposes.

Cadastre can effectively facilitate urban planning and infrastructure development. Urban centres need redevelopment and effective land use and infrastructure development planning. An effective cadastre should permit the integration of records of real estate ownership, land value and land use with sociological, economic and environmental data in support of physical planning.

Cadastre supports environmental management. An effective multi-purpose cadastre can be used to record conservation areas and give details of archaeological sites and other areas of scientific or cultural interest that may need to be protected. It can further be used in the preparation of environmental impact assessment and in monitoring the consequences of development and construction projects.

Cadastre is used to produce statistical data. Statistical data is important to decide for long-term strategic planning and short-term operational management.

In summary, we can observe that a secure and complete documentation or representation of legal and physical land objects significantly supports the efforts to create sustainable development. The Bathurst Workshop underlies:

Land is equally an asset for economic and social development. As an object with secure land rights it has the capacity to underwrite and accelerate economic development through the treatment of land rights as marketable commodities. Its capacity for wealth generation, for attracting and locating investment, and for opening up opportunities for the development of the financial sector is critical to sustainable economic and social development. On the other hand, for many communities the ‘commodification’ of the land may not support sustainable development or, alternatively, the concept of treating land rights as a commercial commodity may be unacceptable. Such communities may regard sustainable development as an integral part of the social structure.

Cadastre can also help create political stability. The type of land tenure and land rights happens to be strong subjects of social and political debates. They have also a strong influence on the emotional feelings of individuals and organisations about the role they play within a society. As a result, no country can sustain stability within its boundaries unless it has a cadastre system that promotes internal confidence between its people, its commercial enterprises, and its public organs. Recognising that land is the source of all wealth lies at the heart of good government and effective public administration with strong legal and political basis.

Finally, cadastre supports the economy in a different sense. Once an effective multi-purpose cadastre is in place any interested individual or institution can get complete information related to a single land parcel. These helps the users save their time, energy and money. Economically, these savings will be passed on to the customers making products and services less expensive. Hernando de Soto is quoted to have said:

I predict that in the next 150 years the countries in Latin America and elsewhere joining these 25 (countries with a developed economy) will be those that spend their energies ensuring that property rights are widespread and protected by law, rather than those which continue to focus on economic policy.

Features of Effective Cadastre

It is a good thing to put some guide lines as to what an effective or modern cadastre should consider. The first thing is that of scope. Geographically, it should be set at a country wide level to fully meet its goals and also avoid some unwanted results such as economic inequality. It should have permanent continuity. Second, it must be of an official nature run by a trusted and independent administrative agency. Third, a cadastre must function based on sound, detailed and practical legislation. Fourth, a cadastre should be available to any interested users through well developed procedures that are well publicised, simple to follow, inexpensive and responsive to customer needs (user -driven). Fifth, a good cadastre should develop a well-functioning financial regime. While the cost of initially establishing the cadastre is usually fully borne by the government investment, its subsequent maintenance should be based on cost recovery system, or even could be designed to generate additional revenue for the government. Sixth, a good cadastre should develop a career structure that ensures that staffs are well motivated and trained in their respective tasks.

Lastly, IT should be widely applied in maintaining the cadastral system. However, computerisation should not be considered to replace the wider cadastre. Fernando de Soto argues quite persuasively that property creation programmes will fail as long as governments believe that only perfectly knowing and having all the physical or technical things- surveying, mapping, and computerising- will guarantee all information required to issue property titles. He observes:

The propensity in some countries to squeeze the issues related to property into the departments of mapping and information technology has obscured the real nature of property. Property is not really part of the physical world: its natural habitat is legal and economic. Property is about invisible things, while maps are resemblances of physical things on the ground. Maps capture the physical information of assets but miss the big picture. With out the pertinent institutional and economic information about extralegal arrangements (and then replace these by the law and formal property system) they cannot capture the reality outside the bell jar. They are thus unable to do their real job, which is to help anchor the property aspects of assets in physical reality so as to keep virtuality and physicality in sync.

This, however, should never give the message that IT and mapping are not important to cadastre. It means that cadastre should be appropriately adapted to work in an extra legal environment, and geared toward avoiding the legal and political problems which means replacing the extralegal, the informal by the legal and formal system.