Land Registration

PRINCIPLES OF REGISTRATION

Registration is the process through which interests in land are recorded so as to facilitate the ascertainment and it makes effective any intended dealings or transactions in relation to property and once duly carried out registration has the effect of passing an interest in land in favour of the person so registered.  Because of those virtues, registration has been identified with two main functions that of serving as a documentary manifestation of land as a commodity making it a commodity to be dealt with in the market while at the same it provides as a mechanism for providing vital information regarding the quantum of rights held by individuals with regard to a given property.  It vests to you all the details one may need before they undertake any dealings on a property and facilitates any transfer thereof.

A system like this needs to be based on some principles and by far the most important source from which these principles have been drawn is the so called Torrens system named after Sir Richard Torrens who formulated the same in 1958 in South Australia from where it later spread to other parts of the world.  Most jurisdictions embrace this system because of its demonstrable superiority over other systems.  It is significant because it provides a new and improved information system on property in the form of a register and the register contains all the material facts about a particular property.  Other than that, in such a register would be entered all such information so that they can be accessed and a document of title would be issued to the owner upon such property changing hands through subsequent transactions.  The document of title in respect of property would be surrendered to the new owner and the information would be effected in the proper register so that the necessary changes can reflect all the material details and indicate the true status as regards among other things ownership of the property or any other interests which affect such ownership.  In effect it leads to a creation of a public record on property full of information of the kind that would be of interest to anybody wishing to have any dealings in such property.  By creating a public record system there is the element of security of such a title or title assurance which does offer a measure of protection to the person the purchaser bona fide purchaser without notice who may wish to acquire such a property in future.   In contrast to an unregistered land system, there is no risks or uncertainties whatsoever as to the ownership including whether there are claims acquired, whether it has been charged all these things would be disclosed in the register.  There are guarantees that come with the registration since it is government maintained.

There are principles relating to the Torrens System

1.                  The mirror principle – this relates to the accuracy or certainty or conclusiveness that entries in the register in as far as the true status of the title is concerned.  We take whatever is found in the register as accurate and conclusive on what it purports to inform us about;  we expect to get all material details including true position of ownership, the interests or other rights to which such ownership could be subject.  The history of how this property has changed hands if at all the first time and at any time changing hands might have taken place.  Mirror principle stands for transparency in shedding light about what the position is and once we have accepted the principle there is the element of confidence and assurance that we are not having any hidden factors or interests that may be adverse to the interests of the parties concerned.

2.                  Insurance Principle – this relates to the fact that since the state has undertaken to establish and maintain this sort of system, the state by extension guarantees that there would be indemnity offered to compensate anyone who may suffer loss as a result of mistakes in the register or merely by reason of the fact of operating that system itself that in event of injury or damage arising out of such circumstance, there is a state run system that will compensate any person who suffers loss to the extent of such loss.

3.                  Indefeasibility -     This is to the effect that once registered as the owner of an interest and such interest duly disclosed or entered in the register the rights acquired cannot be defeated by any adverse claims which are not disclosed in the register.  The register is a public document and open for inspection by the public so that the presumptive position is that everyone will be deemed to know.  Discoveries can be made of material details which would affect a person in one way or another and it is good public policy that the openness allows you to know any adverse interest before one goes very far with the transaction one can seek explanations.  Once we’ve got all these guarantees, we shouldn’t allow them to be defeated by any hidden claims and the registers should be open for any one to see.  The idea of public notice provided for by keeping a policy of an open register should work towards strengthening the rights of an individual with an interest.

4.                  Curtain Principle – this relates to the requirement that the register should disclose precisely the nature of the interests and who the owners are.  There should be no position of where one holds interests in a hidden way and all trusts should not be kept in the register and where for instance land is registered on a trust it would be a requirement that such land should not be held blindly under such a trust and must be registered in the names of specific persons and subject to appropriate restrictions the names of the owners being registered.

These were drawn from the system that Torrens came up with.

THE GOALS OF REGISTRATION

In a way, these goals do not depart fundamentally from the issues that we have been considering like the issues of security of tenure.  In relation to the RLA in this regard or provisions of section 27, 28, 29 and 39 they are instructive while in RTA 23 and 24 are relevant and this is where the safeguards of a registered proprietor and any person dealing with property are made.  the safeguards are against the eventuality of one losing such an interest.  In any case, there is a guarantee that the government gives as to the reliability on what is disclosed in the register and there is a title assurance which are central to the security of tenure given that dealings in such property will not predispose an individual to any damage.  There is bound to be confidence in commercial business circles with all those participating in the process being unbothered with the possibilities of incurring losses.  Section 24 of RTA provides that any person deprived of land or estate through fraud or bring such land by registration or in consequence of any error is covered and so the issue of  losing that title is taken care of by such provisions.  No claims that are inconsistent with a registered title would be entertained so such adverse interests cannot be treated favourably as against that of the registered proprietor and the case of Obiero v Opiyo here the court observes that a person who acquires a first registration title acquires an indefeasible title that is better as against the whole world.

Before one is registered as a proprietor of a given property, there are preliminary stages that have to be dealt with and the most important stage is that of adjudicating the claims and whoever claims to be the owner or entitled to a particular property has to prove the claim and have to face challenges from interested parties who are allowed to make representations and those adjudications are conducted with the help of locals to ensure that only true claimants can acquire the title.  Whoever succeeds on gaining first registration will have shown the most effective entitlement to the title.  If it works out that way, it should follow that there would be no disputes that one would not wish go to court to litigate such land.  The bulk of the cases are in land related cases and therefore the theory has not been proved right.  there is a lot of litigation revolving around land which makes one wonder if we have fared any better by having first registration.  The central region happens to have been the hot bed of a number of things related to land such as the Mau Mau movement who might have not been there to stake their claims to land and therefore land in the central region is a touchy issue.  The understanding was that if and when the registration was done, people would be given opportunities to articulate their claims to avoid disputes.

It has also been suggested that the other goal is to avoid the old practice of land fragmentation and this was in fact one of the other objectives that registration sought to achieve through consolidating smaller holdings into bigger ones.  A number of social factors explain why the land units were fragmented as they believe that every son must get a share of family land no matter how small the piece of land is and one ended up with 10 small pieces of land in different place and this was identified as a militating factor against productivity.  Eventually they decided consolidation would make one end up with one larger unit which could be more productive due to economies of scale.  The provisions that are found in the RLA prohibit the registration of more than five people and only allows 5 people or less to be registered in one parcel of land.

It has also been suggested that another goal is to facilitate the tax administration or it is historically the case that land or levies imposed from land have since time immemorial served as vital sources of revenue i.e. the feudal systems in England and collective system in Russia have served as main sources of revenue to the government.  In our situations we have Land Rates and Land Rent, fees to be paid for a number of reasons, i.e. consent from land boards there are fees to be paid for transaction to proceed, under the Land Planning Act there is a planning fee, LGA there are rates that the local government levies on land, Stamp duty under stamp duty act and fees payable under the RLA.  Registration facilitates the question of administering taxes due by identifying the way to levy taxes.  One has to fulfil a number of requirements which relate to tax administration based on levies on land before any transaction can take place.

The other goal is to facilitate workable loans systems by having a credible registration system in place where one creates ample securities and adequate checks and guarantees based on land as a commodity in the market place.  One can surrender their title documents as security in return for financial accommodation through being afforded credit facilties.  This is a healthy phenomenon is it works along the lines that it should, that it is it is presupposed that one has a development plan and can take advantage of finances available which one would not have access to in the absence of title.  It is possible to benefit improve one’s property and pay back the financier.  The financier is the one who gambles by giving the credit in hope that one is going to make good or have the ability to pay.  In the event that one defaults, then the property is liquidated to recoup whatever is charged.  There is a statutory power of sale that vests on the financier if one does not make good to repay.