Chapter 3, Section 3 provides a brief discussion of the Symposium. The proceedings, conducted over a three-day period in October, 1986, consisted of presentations and discussions grouped into six modules. The following appendix details the proceedings according to the three general issue areas that were dealt with. These are: technical and methodological issues, legal issues, and socio-economic issues.
D.1 Technical and Methodological Issues 32
32
A full treatment of these issues appears in B.E. Furmston, "Land Registration in Developing Countries: Technical Issues and Options," Proceedings ... , pp. 12-21.
The fundamental technical issues were identified at the symposium as pertaining to five areas: a new system of registration of title, accurately surveyed boundaries, the adjudication process, comprehensive documentation by mapping, and finally an information system.
The system of registration of title was compared at the symposium to the old system of registration of deeds. It was held that the old system contained the following deficiencies: (a) it did not provide an adequate description of the land involved; (b) it was not indexed by land parcel but by chronological sequence and individuals' names; (c) the additive method of recording transfers and other dealings could not cope with long periods of time. The new Saint Lucia registration method, based on the identification of ownership by a numbering system unique to each parcel of land, was considered to overcome these problems. However, symposium members found it essential that with any new system, the advantages should be well publicized, so that people would understand it and perceive it as beneficial.
In the discussion on boundaries - that element of the land record that describes the land to which title is held - the underlying issue was that of "fixed" versus "general" boundaries. While support was expressed for general boundaries, it was noted that this was not a technical question but one of adjudication (see "Legal Issues", below).
With regard to the preparation of an index map and the survey of boundaries, aerial photography was considered to be of undoubted value, but irrespective of the method, there was no avoiding high costs in a survey in hilly and densely vegetated terrain.
Much attention was directed to the maintenance of a land-registry system. The virtues of the land information system proposed under the Saint Lucia LRTP received many favourable observations. An information system based on unique parcel numbers affords opportunities for gathering data relevant to national Government, local authority areas, parishes, and electoral districts. It could also permit the recording of information on land values, rents, and rates and on land use, land potential, and natural resources.
Originally, in fact, the collection of data on the physical characteristics of each parcel had been envisioned as part of the LRTP. Using a simple check-off form, the demarcation and recording officers were to obtain basic information on land use, the existence of buildings or other improvements, and the slope category of each parcel. The forms would be collected regularly by the Physical Planning Department and processed to form the basis of an information system in support of physical planning and development control. It would take little if any additional time for the demarcation officer to fill in the form.
Unfortunately this extra activity was never carried out. It was eliminated during negotiations between the funding agency and the future contractor because, in the words of the contractor, "severe downward pressure" on the overall cost of the contract was being exerted. Substantial long-term benefits were thus sacrificed for a minimal reduction in cost.
The argument of short-term cost savings should in fact be turned around. Adding a carefully designed data-gathering activity to the demarcation component of a land-registration project enables a Government to acquire a body of information without the massive financial outlay required to mount a nationwide effort solely for that purpose. Given the growing competition for aid funds, the additional product achieved by "piggy-backing" data collection on a land-registration project will become essential to justify the substantial financing required to undertake such projects.33
33
This argument was made by J.C. Vermeiren in "Land Registration in the Eastern Caribbean: An Opportunity to Resolve Traditional Land Use Problems," ibid., pp. 35-40.
Finally, as the cost of maintaining a system is largely determined by its initial design, the extent to which it can pay its own way must not be overlooked. Registry fees and stamp duties are potential sources of revenue.
D.2 Legal Issues
The main legal issue concerned the question of general versus fixed boundaries. Clearly, this was basically a policy decision to be taken by the political authorities. Because general boundaries have been known to work in the Caribbean, it was accepted that the legal requirements need only be "for a level of accuracy chosen by the Government." Moreover, it was considered that the legislation must empower the registrar to readjudicate "on such evidence as he considers relevant". Boundary disputes could still be taken to the courts.34
34
Ibid., pp. 15-16, 185-186.
With respect to adjudication, the major concern was that the necessary time should be spent to allow the parties to be heard and to ensure that they obtain a fair deal. The legal principle at stake here was that of natural justice. This implied that the whole question of adjudication was to be regarded "more as a public relations matter than anything else," so that people would have confidence in what was being done.35
35
Ibid., p. 186. According to personal communications from participants in the evaluation of the LRTP currently in progress, it appears that a high proportion of the land has reverted to ownership by the state because of persons who may have had customary rights lacked documentary and legally verification. Such an outcome is not conducive to confidence.
Discussions were also directed to legal issues pertaining to the efficiency of land registration. The committee considered it important that the law should permit a relatively quick response time to needs as they arise, particularly enabling transactions to be completed in a matter of days. Where necessary, the Government should amend the legislation to insure that the register remains up-to-date. In particular, successors-in-title of deceased land owners often neglect to register themselves within a reasonable period. When this occurs, the registrar should be allowed, with appropriate notice, to have the land registered in the name of his or her office as trustee of the deceased owner.36
36
Ibid., pp. 54-55.
It was also noted that legislation that imposes unreasonable burdens on landowners will be self-defeating, for they will simply fail to observe its requirements. Moreover, new legislation must be carefully drawn to avoid subsequent litigation.
But the very concern for efficiency could prove counter-productive unless the public could be educated to have confidence in the new system. The deeply imbedded custom of retaining notaries as part of the conveyancing process showed that the popular mind placed more trust in a legal authority than in some official in a registry.
A related point that was made concerned the rested interest of professionals-lawyers, surveyors, or others - in maintaining the old system, with all its deficiencies. Discussions at the Symposium made it abundantly clear that more contact and negotiation between the legal profession in saint Lucia and the LRTP contractors was essential.
Taxation and fees were also identified as related to the efficiency of a registry system. The consensus was that the system should be maintained by fees. But again, it was recognized that unless the system is attractive and efficient and the charges are reasonable, the population at large is unlikely to use it enough to make it self-financing.
It was felt that an efficient land-registration system can undoubtedly contribute to economic development, as the cases of Antigua and the Cayman Islands demonstrate. An understanding of this relationship was thus of fundamental importance.
D.3 Socio-economic Issues
Three arguments were put forward in support of a title-registry system over a deeds-registry system from the socio-economic point of view:
1. The first was that the new system amounted to an investment in the infrastructure of the country because property rights constitute the basis of capitalism and of all the economic and social activities it fosters. Among these is a market for the sale, exchange, and transmission of property that enables land, as capital, to function in the production of goods and services and to assist the process by which value accumulates to those who own or hold property. Understandably, in a social system that attributes such fundamental importance to privately-owned land for economic well-being, conflicts are inevitable. A society so organized then attempts to provide a means of regulating the competing rights and conflicts.2. Associated with this is the need to make a land-registration system an instrument for the achievement of further social goals - one that encourages investment and transactions in land as a marketable commodity. As the old system had encouraged fragmentation and multiple ownership, the resulting parcels were difficult to treat as economically productive units.
In contrast to a mere increase in the number of transactions, the wider social good of preventing the monopolistic control of land also had to be a matter of concern. To the extent that a modern land registry opens the property system to the poorer segments of the population, it could be seen as achieving social benefits, bringing development that redresses inequality and the domination of the rich over landed property. At the same time, it must be recognized that any system is likely to be manipulated more in the interest of the rich and powerful than of the poor and underprivileged.
3. The third argument was that the registry system can be used to provide the state, through its monitoring of transactions, with the information necessary for land-use planning and zoning, and administration and the prevention of speculation in good farmland for development.
But the cardinal principle, not limited to the land alone, was that the social and economic benefits from the preservation, management, and development of all natural resources should accrue to the society.
