Practical solutions to protect your land from fraud in Sri Lanka
Sri Lanka has 4 land registers & successive governments continue to pass amendments without passing 2 simple insertions that would protect land owners & their lands including State land. Whether this is being done intentionally or on the advice of advisors or ignoring advice is something the legislature needs to answer. Land owners cannot simply wait for the Government or Public officials to protect their land. Here are some practical solutions that land owners can take to protect their land.
The former Minister of Justice Ali Sabry proudly announced in Parliament that after nearly one century the biggest change to land registry law and notarial law had taken place with the help of an expert team of lawyers. However, recently the Registration of Documents Ordinance was amended. This has not ended land fraud & provided any solace to notaries involved in land registering.
For the general public questions would be
- Have laws been introduced to resolve Sri Lanka’s biggest problem – Land Fraud as stated by the Registrar General of Land in March 2019 that almost 40%-50% of land deeds in Sri Lanka are likely to be forged.
- Is the Land Register MANDATORY – which enables land owners to register their lands without searching deeds which may not be registered. https://landportal.org/news/2020/11/land-fraud-sri-lanka]
Recently passed amendments do not benefit land owners
1] Land Registrar has no authority to reject deeds if they are forged or invalid
2]. Land Register is not Mandatory. It has not been amended, converting it from a ‘Priority register’ [archaic law] to a Mandatory register as in UK, USA, Europe, Australia Singapore India and many nations which had registration laws similar to Sri Lanka [Ord 23 of 1927].
Nations have introduced e-registration only after the introduction of the modern mandatory register and after they have empowered the Land Registrar with quasi-judicial power to reject forged deeds to protect registries from fraud and cybercrime [literature available on the internet]
Cabinet decision to provide a mandatory register with research
When amending the registration statutes attention should have been given to the Cabinet Memorandum of 20/2100/322/007 of 24. 12. 2020 to follow the South African system – was this not complied intentionally & for what reasons!
Registrar General Land says —-Land Registry is not a place to check owners – it is not mandatory
Registrar General in a letter dated 6th April 2016 has explained the above serious lapse in Ordinance 23 of 1927 to the Prime Minister. Ref RG/TRB/03/278/
His letter explains that the land registry under the Ord 23 does not mandatorily require registration of all owners, therefore he says one does not expect notaries, banks or anyone else to examine extracts in the Registry and conclude ownership, they need to search deeds and find other methods.
World Bank view – The World Bank pointing out this obstacle, provided funds to research to progress to mandatory registration with viable institutional framework, including cohesive organizational structure and plan for staffing and human resource. [which was neglected] . https://documents1.worldbank.org/curated/en/293851468308634964/pdf/ICR0000190.pdf
However Sri Lanka government did not utilize the funds as instructed to improve the existing register with instructed research (LIL scheme) but suddenly without anyone’s advice introduced Act 21 of 1998 which superimposed the Australian land law rather than progress to a mandatory fraud free register. The Act repealed the judicial process and most of our traditional land laws. The World Bank thereafter withdrew their funding program and today we are struggling with a 2nd register called Bim Saviya which is declared as a total failure by two committees appointed by the President and the Minister Ali Sabry advising land owners to revert to the old register.
At present a 4th register is being proposed called the Land Bank as [per letter shown in the picture]
Other registers as above are under
1] Ord 23 of 1927
2] Act 21 of 1983]
3] E-register; Land Information system[LIS]
4] Land Bank
Are Legislators unaware that a country needs only one register for government land and private lands to be registered to reach a higher standard in the Doing Business Index.
This is the consequence of not having a legal team managing the research and progress of the registers as in other nations [Registration law is a specialized legal field with literature available from other nations]
Under the present laws land owners need to protect their land ownership from land registry fraud. Solutions given by a legal team:
Notaries dilemma with a priority register [archaic law]
Registration statutes need to be amended with reference to the modern statutes of other jurisdictions as we are moving to electronics with mandatory registration. Notaries today have to search beyond the register as registration is not mandatory, they cannot assure buyers with regard to ownership from an archaic priority law. They are very often confronted with cases against them for relying on the priority register.
There is a tedious procedure for notaries which takes over 3 months for correction of minor errors by Registry officials, the official do not even have the power to correct their own mistakes under the Ord 23.
It is imperative that a land owner fortifies himself with these vital supporting documents as the registry is unreliable even with the recent amendment :
A] Vital documents from the Land Registry have to be kept by owners as they cannot depend on the Registry
1] Certified copies, of the duplicate, and the extracts from the respective land registries.
Duplicate deed: A Notary attesting a deed is mandatorily required to file a copy of the deed referred to as the Duplicate copy with the Land Registry.
The Land Registry is expected to preserve the Duplicate copy in its archives to support the land rights of the owner.
Extracts – All deeds are recorded chronologically in pages bound together into volumes called registers. Extracts are copies of pages or sheets of paper from these volumes where the deeds are registered.
If your land is stolen from the registry the investigating officers and the judiciary require the above documents for their investigations, they are prima facie evidence to prove your ownership.
If you have neglected to apply and collect the certified copies before a fraudulent transaction takes place, you may be in deep trouble as the Registrar is not responsible and a letter will be issued that they are not available.
B] The owners must also check the registry periodically.
Some owners may have properties with deeds written several years back, and they may not know the state of these vital documents. Some find that the property is transferred and someone else is the owner.
C] Register your ownership with the service providers
To prove ownership a deed alone is not sufficient Therefore owners need to register with the relevant service providers as they will provide evidence of ownership and possession when required.
1] Electoral register
2] The local authority, (Municipal Council, Urban Council or Town Council where the land would be situated). Retain the tax receipts issued for payment of taxes and obtain the ownership certificate in the name of the owner after due registration of ownership.
3] The Water Board
4] The Electricity Board
5] The telephone authorities
6] Retain any others such as receipts from contractors, house keepers, repairman for repairs, clearing, fencing and renovations etc.
D] Do not give your deeds to any one even copies or send them via internet they need to be delivered through your trusted lawyer
E] Do not rush to buy land: Protect yourself from buying someone else’s land; Very often deeds are written and the owner appears when you are fixing fences, there are deeds unregistered lands are sold and not registered as said the amendment has not made the register mandatory Checking owners will be unreliable
- Buying process should commence only after visiting the land and talking with neighbors to find out the names and identity of owners
- Exchange letters confirming the transaction with names and addresses of owners and retain covering letters from the owner’s notary forwarding copies of deeds for title examination to your notary
- Do not rush to complete transactions without face-to-face interviews with owners, agents, witnesses, surveyors and even notaries.
F] The CID’s request is to obtain photographs at the time of signing the deed as they are not able to trace witnesses, owners and brokers. Obtain their identity, telephone numbers and addresses home and working place.
G] If a land is owned by a company, a search needs to be made at the Registrar of Companies to identify the directors of the company. If the owner is represented by a Power of Attorney, it is always best to contact the owner and have direct dealing with the owner.
Retain all the documentary evidence with your deed.
The Government and the Ministry of Public Administration needs to get the ICTA engineers advice to amend the land registry statute to prevent fraud.
- To make the Registry mandatory, with biometric solutions to identify owners empowering the Registrar to reject fraudulent Today the registry is provided with electronics and ICTA engineers are associated with the Registry. Minster of Public Administration could get their advice to amend the land registry statute to prevent fraud electronically. In UK, the facility to report fraud or cybercrime to the Registry advisory team at any time of the day or night using the online reporting tool is available. Mobile alert to owners when forged deeds enter the registry is also another special feature.
- Biometric methods used in other nations They have developed advanced systems of ‘owner identification’ methods adopted biometric solutions to identify owners to prevent land fraud. The land registries record like in our banking system, iris and digital photos to ensure that fraud does not take place. The internet carries an extensive range of information from different countries that can be searched under the relevant names given to the data bases of the land registries They are Enjoa – new electronic notary logbook used in the US, e-Tanah in Malaysia, Bhoomi project in India, Loucha Pathap in Manipur.
If you need advice re Title Registration & Bim Saviya, write your problems to email@example.com
Shenali D Waduge