Sri Lanka’s Land Rights: Bim Saviya & entry of Technology
Continuing with the subject of land, one of the most important topics for Sri Lanka and its citizens, the Bim Saviya title registration is the present topic of discussion. How aware are the citizens of this new system, were they involved before its implementation, were they given a chance to raise questions and seek answers and how knowledgeable are the supposed legislators and lawyers enacting these foreign infused land registration systems is what we as citizens should have the right to know and have our questions answered.
What is Bimsaviya?
Firstly, this is a foreign land law introduced to Sri Lanka by Act 21 of 1998. It is globally referred to as Title Registration.
This foreign property law practiced in prosperous nations for over 150 years has repealed the existing Common Law and the Roman Dutch law which was practiced in Sri Lanka for over 100 years.
Every land statute in the future will have to be subject to the provisions of Act 21 of 1998.
No one seems to be bothered about the indigenous laws that existed prior to colonial invasion & occupation that lasted over thousands of years!
What is the objective of Bim Saviya or Title Registration
Part 1 is to survey all land in Sri Lanka belonging to the State (Govt) & private owners and placed into a new surveying system called Cadastral system. Estimated blocks of land is said to be 8.5million. Each block will have an identification number of 12 digits and the owner is able to view ownership from the computer using the number. Individual plans are to be systematically registered in the land registry with the names of the respective owners.
All original deeds will be taken and replaced with one-page Certificate of Title with owners name and plan depicted on it. Originals will be destroyed.
Who decides ownership of individual blocks of land after survey is completed?
Under the new system the ownership is to be adjudicated by a Commissioner of Title. A new position that has been created. The Commissioner will re-register owners that are already registered in the old deed register. Quite a lot of scope for mischief! Shouldn’t the Courts be doing adjudications?
Why is the Judiciary not handling adjudication of rights of owners?
Unknown to most the judicial powers has been transferred to a new office – Commissioner of Title. Why has no one objected? Even the lawyers are silent!
The importance of the Judiciary handling adjudication comes because the quality of legal documents and books kept to support the rights (deed registers) in land registries have deteriorated. The Registrar himself says 50% of the deeds are forged. Therefore, the role of the judiciary is pivotal for adjudication rather than a Commissioner who may not be knowing anything about land rights or land laws!
What is the most important feature of the Bimsaviya new law that will affect the land owner?
First and foremost is that the owner cannot go to court for any matter after obtaining the Bimsaviya deed. For an example if the owners name is replaced by a forged entry the ‘law of indefeasibility’ will operate. That means no one can remove the name of a owner not even court of law. So if the register is having a forged owner’s name the court cannot remove the name. This is quite serious and demands how far the Govt or lawyers addressed this aspect before implementing Bimsaviya.
What remedy is available to land owners if justice is denied?
Under the Bimsaviya land title is guaranteed by the Government. The Government according to Act 21 will protect the owners from fraud or forgery. This statutory state guarantee of Title is backed by a new insurance scheme. An Assurance Fund (TAF) has been established under Section 62 of Act 21 of 1998 by the then Government. The Fund is supposed to provide compensation to owners for any loss suffered as a result of fraud or error in registration.
We have to wonder whether the architects of this Act purposely created this Fund anticipating acts of forgery & fraud and compensating with some for land taken from owner via forgery was the reason for introducing this Act. Who actually proposed this Act to Sri Lanka? Who drafted the Act – our lawyers or foreign lawyers?
Can the Government Assurance Fund under Bim Saviya afford to compensate owners for loss of land rights in lieu of court intervention?
If colonial statutes were not bad enough – when new laws that replace these colonial statutes which have provisions favorable to fraudsters how can a Government guarantee protection? How can a Government simply say it has a Fund to compensate and then walk away from the injustice to the land owner?
Bimsaviya is simply a cut & paste from statutes of Australia & New Zealand – while these two countries have large funds in their Assurance Funds what does Sri Lanka have?
The Ministry of Justice did make amendments to the existing law to prevent fraud in Bim Saviya but it is now over 9 years and nothing has been done.
Has this law been approved by the Attorney General’s Dept who is responsible to assure that statutes do not violate the constitution?
All statutes have to be approved by the AG before implementation.
Why was the law not contested at the Bill stage?
The Act was introduced in a hurry much like most Bills allowing no public discussion. Hardly anyone knew about the revolutionary change introduced to property law. It questions on what basis Parliamentarians who voted in favor of the Bill did so without raising any question or objections. It would be good for Parliamentarians to seek legal advice for important Bills in future. By not raising their doubts and simply voting for this new Land Act, Sri Lanka’s Parliament has put Sri Lankan land owners in a vulnerable situation.
Are there other countries following Title Registration – Bim Saviya?
Not surprisingly it is World Bank that is insisting Commonwealth Countries to introduce this new law. Prof Tang Hang Wu, Prof of Law, Centre for Cross-Border Commercial Law in Asia, Singapore wrote a paper on Title Registration titled “A aw which favors forgers: Land fraud in two jurisdictions”
The paper was written following the shocking judgement on Title registration in the highest court of Malaysia. The judges allotted the land in favor of the owner who registered the name with a forged document (this is precisely what can happen in Sri Lanka)
What will be the situation in Sri Lanka vis a vis its Courts?
A series of judgements from various jurisdictions does not favor the law. The Judges are imposing very strict penalties on conveyancing professionals who attest documents without identifying owners. Judicial precedence in the latest case in UK gave a drastic decision recently – the court ordered solicitors who attended the land transaction to make financial contributions to the owner who lost the land due to forgery (Dreamyar vs Mishcon de Reya)
What advice can be given to a buyer under Bim Saviya
Buyers must first investigate who owns the land. The owners name is on the computer but is the person who signs & takes the money the real owner?
It is good to take precautions, prove transaction process and identify all parties who participated in taking the money & documents to be notarized. Keep a copy of the original submitted by your notary as the land registry will retain documents only for 10 years (request a copy from your notary)
Judicial precedence in other jurisdiction have emphased that the owners and notaries should be able to produce documents to prove that they used maximum due-diligence to deal with the true owner. Retain the copy of the ID. Photo of the owner, address and phone numbers of the notary who attested the document & all identifications of brokers and third parties who took part in the land transactions.
Are deeds (especially lease deeds) prepared by notaries (after the lands are governed by Bim Saviya) valid?
No – not valid under Section 47 of Act 21
What is the role of the Land Bank Act with Bim Saviya since Bim Saviya is the final conclusion register for lands in Sri Lanka?
Section 73 Act 21 of 1998 / Bim Saviya Act is very clear –it does not permit any other land register.
Can an owner write a Last will under Bim Saviya
Yes, last wills can be written. Ownership however cannot be granted jointly as the Act 21 of 1998 does not permit coownership.
What will happen if all deeds are computerised, original deeds are destroyed and computers get hacked and all records eliminated
The Electronic register is already in place known as the Land Information system [ LIS]
In other countries the law is monitored by Professors of law. Under the Electronic Transaction Act of Sri Lanka, the Minister of Lands has the power to continue the process. Even land documents can be signed with electronic signatures one day, which the act has not permitted to date.
Other nations are very cautious in introducing fully automated methods without the introduction of statutes to preserve the identification of owners. The damage that could be done to the property rights of a country was demonstrated by USA reporters —They prepared a electronic land sale document for the Empire State Building with forged signatures sent to the land registry The fictitious sale of the Empire State building took place in 90 minutes.. The land registry did not have the identification laws in place to prevent the registration.
What can Sri Lanka do going forward?
The legal education in the university and the Law College has to be changed to have counsel and academic staff to address the issue of unrestricted entry of technology and land statutes drafted by foreigners .
If an application is made to court, courts may seriously consider to revert to the deed registration system to operate the electronic register, unless the transaction speed is considered more important than preventing fraud.
People’s lobby groups to demand Parliamentarians be more responsible and accountable for Bills/Acts re Land in Sri Lanka
If not for a handful of patriotic lawyers we would not be knowing even this much and simply calling ourselves a democratic country is not enough if there is no transparency or involvement of the Citizens in lawmaking. The Nation must thank them for the silent role they play.
As things stand the BimSaviya together with the new controversial land Bills being presented including the Land Privatization Act spells dangers for Sri Lanka.
The public are asked to raise more questions so that we may find answers and share these amongst the rest of the citizens to become aware of what our Parliamentarians are hiding from us
Shenali D Waduge