Kirthimala Gunasekera Senior Lawyer

Interesting informative article on ‘’DIGITALIZATION AND MODERNIZING TRADE BUSIENSS AND CONSUMERISM FOR THE CITIZEN’’ 4^th April 2021 published in  Lanka Web .

 E Land registration will soon be operating the land registration system to secure ownership . However it  can be a source of ownership insecurity,  without consumer protection laws  The  risk involved  in the absence of  consumer protection laws  to protect owners was demonstrated in USA,  when New York News Paper prepared a forged deed to transfer the Empire State Building.   The forged document was registered in 90 minutes, the land registry had no laws to protect owners, therefore did not recognize that 102-story Art Deco skyscrape was being sold  to a new owner when the  information in the deed was  laughable: Original;  “King Kong” star Fay Wray  listed as a witness to the deed and the notary’s  name was a  bank robber’s name  Willie Sutton.  [ https://www.nydailynews.com/news/money/90-minutes-daily-news-steal-empire-state-building-article-1.353477]. .

  In modernization and introduction of  technology to land registries consumer protection law takes a leading role in many countries.  Professors of law have published many books on the subject.  It needs mention here that  professional practice and land registry laws  with  steadfast and  limitless laws and rules  for  identification of owners for consumer protection  has been the reason for the success  of E  registers in  Australia, New Zeeland, Singapore and UK . Where the law requires  thorough identification checks and strict requirements for witnessing documents before the execution of  transactions as given in this article .

In Sri Lanka attention was not given   to introduce the international laws that   protect owners  in an e register, even when land fraud is extremely pervasive. However we are fast moving to  introduce  technology to land registries.   

 The    E register commenced    scanning   the owners from an unreliable register   that commenced in 1864.  

Owners who have not checked the land registry after they had purchased lands or houses need to   check their ownership   status  in  land registries to be safe

A  quick fix solution scanning the names of owners from  the unreliable old register  which  1] is a non compulsory register —- where all the ownership rights of land owners are  not registered. 2] is  torn mutilated  as the register had not been revised since   1864. 3]  has fraudulent  entries,  according to the Registrar General  has 50% forged deeds .     (https://www.newsfirst.lk/2019/03/17/50-of-land-deeds-in-sri-lanka-forged-registrar-general/#:~:text=COLOMBO%20 (News%201st)%20%E2%80%93%20The,the%20country%20are%20also%20forged,  

  1] E register copies from a non compulsory register—— Registrar General in his letter dated 6.04.2016 to the Prime Minister’s   office   confirms that  that the registration of  deeds are not compulsory under the law governing registration.  He explained in his letter   that the old  register  is  not a conclusive register where all rights of owners are registered.  This   means the  e register will be  prepared from a   non comprehensive register   that will not have   all  rights of owners,  specifically rights to   life interest, lease hold interest, servitudes  agreements to sell  etc.  

Solution— it is important to immediately   make a public announcement  to all  owners to  register   all their deeds and land rights such that their rights will be included  in the E register.    If not the E register will exclude owners who have unregistered   ownership deeds , gifts, ,  life interest, lease hold interest, servitudes , agreements to sell  etc   

2] E register copies from a torn mutilated register   ——-Owners    have got misplaced   from  the old   register as the folios are  damaged and   mutilated  from 1864 .            [ Even lawyers have found that their helpless, their  ownership  had been  misplaced, and  the land registry informs  in writing that  folios are damaged ] This means that only owners whose folios are not damaged will be included in the E register.  

Solution — Public announcement is essential  for owners to immediately  make their  application under the Ordinance 18 of 1945 to reconstruct the damaged mutilated folios.   The Registrar   has power   under the   Ordinance 18 of 1945  to prepare and reconstruct the folios to  re instate  the names of owners. This should have been done before ,   scanning commenced to  prepare the e  register.  

3] E register will record forged deeds–. Are we only admiring the glory of technology as a duck gliding on water without seeing the paddling  underneath.  It needs mention here that all countries where the E register  is a success has enacted consumer protection laws [n  Australia, New Zeeland, Singapore and UK] .  The Registrars have  quasi-judicial powers to check owners’ identity before removing and replacing  owners  in the E   register, the  Registrar has the full power and authority to reject forged invalid deeds. 

In Sri Lanka the register has no such authority, present law is that  the Registrar is not responsible for the validity of deeds that are registered. [ Section 7 of the Registration of Documents Ordinance]   Therefore the owners registered have very little  protection as a forged deed can easily replace their  ownership.  According to the Registrar General old register from which the E register is scanning owners  has 50% forged deeds .     Registrar  states  that 50% of entries of the register from which the e register is prepared are forged (https://www.newsfirst.lk/2019/03/17/50-of-land-deeds-in-sri-lanka-forged-registrar-general/#:~:text=COLOMBO%20 (News%201st)%20%E2%80%93%20The,the%20country%20are%20also%20forged 

Consumer protection law recognised  internationally protect land owners and buyers from fraud  ———-

1]Block chain method [ very popular]  – The technology involves creating digital  verification recording system or a  digital file. Fingerprints of owners in a pedigree are saved together in groups into a block and then to a chain in registries. It is impossible to add new information fraudulently to the chain  of title of an owner.   The chain’s ability to secure data and history of land title is very successful to prevent fraud.

2]UK —Property Alert service for owner’s mobile , to receive updates whenever someone makes a search on their property’s title or attempts to make a change to its registration.

3]USA –A solution which is well suited to the modern digital age has been created by the introduction of Electronic Notary Journal of Official Acts (‘Enjoa’) by the National Notary Association (NNA) USA. They have  incorporated biometric technology into its new electronic identity-capturing database to provide secure and convenient electronic protection for documents and notaries., Enjoa   captures the thumbprints and digital photos of the owners.

4]Malaysia — Increasing cases of land fraud in Malaysia triggered an initiative t to seek responsible solutions to resolve the issue.  The Government  designed an electronic land administration system called e-Tanah in which the land registry embarked on a security system to prevent land fraud by affixing the thumb impressions of owners in addition to signatures. d. This system requires the owner of the property to physically present himself with his Mykad [ID card] and to place both thumbs on the biometric appliance available in the land office in order to verify his ownership. The biometric confirmation letter must be enclosed together with the instrument of transfer for registration in land registries

5]Bhoomi Project in India—-A similar biometric system has been introduced in India for the identification of owners. Bhoomi has computerized 20 million records of land ownership of 6.7million farmers. A farmer can check the status of their deeds being registered or  tampered with on a touch screen by getting authenticated access with his fingerprint, using biometric fingerprint scanners available in computer kiosks.

6] Manipur—Loucha  Pathap  which means rules governing the land” was inaugurated on 2nd July 2004.  Loucha   Pathap is the application software, indigenously developed by the National Informatics Center, Manipur for the purposeof the computerizationof land records. Through the use of the device the software and its content owners are protected against theft

7]   Australia

As in all countries e registration commenced in Australia  with consumer protection laws and organisations to manage the laws . Australian Registrars National Electronic Conveyancing Council (ARNECO) introduced model participation rules on 18^th March 2014. Property Exchange Australia (PEXA) will remove the manual processes and paperwork associated with the exchange of property by allowing land registries, financial institutions and practitioners in an integrated system of transacting online. PEXA is aimed at providing benefits across the entire conveyancing industry, some of which include: Transparency – all parties can see completed stages of the settlement process and those which may be outstanding. Early fraud identification – lenders can identify early any potential fraud in the  process.

 Bim Saviya –

It was the intention of the   Government with the advice of the World Bank  to introduce a comprehensive register called the Bim Saviya register  to register owners of 12 million blocks of land which covers all owners government and private owners, before the commencement of the E register. [ however without local  legal consultation ]  The entire project failed .

Reasons for the failure after 20 years is   highlighted in the   Performance Report   of 2019  Report  states clearly   that it will take over 100 years to complete the Bim Saviya register . Vide report    [2019[https://www.parliament.lk/uploads/documents/paperspresented/performance-report-land-title-settlement-department-2019.pdf].

The law of Bim Saviya is  unsuitable for our country as the owners’  right to access court if the lands are affected by forgery or fraud have   been  taken away by this law. In lieu Government has agreed to compensate owners from an Assurance Fund .