The Sri Lankan e register should be governed by a law suitable to Sri Lanka and not by the foreign law called Title Registration as recommended by the MCC
Posted on August 3rd, 2020
A Senior Lawyer –E MAIL
Congratulation to Ms Shenali Waduge, she has studied the Act 21 of 1998 and explained the legal implications of Title Registration [also called Bim Saviya]. Yes many learned members of our society argue that foreign funding, foreign laws and technology should be accepted with gratitude. They believe that once we introduce technology and foreign laws we will be on par with developed nations. Sadly this is akin to seeing a duck smoothly gliding along the water without seeing the paddling underneath .
These countries are where they are, with e registration as a result of on going legal research, with 3 decades of legal reform by their learned professors of law. Sri Lanka has had no such legal reform prior to entering into technology for land registries. Sri Lanka does not have a single legal book on E registration and Property law, land registration methods and Electronic conveyancing . The subjects are not even thought of being introduced into the legal education programs. We totally depend on foreign funding agencies and foreign advice to change our land policy and land laws.
How long will it take to introduce a foreign law [Title Registration Bim Saviya ] to manage the e register? In 1998 on the advice of the World Bank, without any notice to lawyers and the public the Government introduced the land law practiced in Australia and New Zealand called Bim Saviya. The assumption wasthat the land law practiced for over 100 years in Sri Lanka could be changed to Bim Saviya within a period of 15 years. A process called ‘ First Registration’ commenced to change the law of the country. For this process the government officials without any legal knowledge were appointed to investigate and adjudicate ownership to 20 Million blocks of land and to enter the names of owners in a Bim Saviya register. http://bimsaviya.landmin.gov.lk/ .According to the government reports the process was a failure, and only 0.72 Million blocks were completed for the past 20 years out of 20 Million blocks of land at a heavy unaffordable cost to the Government . [ see Performance Report of Commissioner General 2018 report]
President Mahinda Rajapakse appointed a committee to look into the serious situation created by Bim Saviya. President Mahinda Rajapakse appointed a committee known as the Samarasekera Committee to look into the serious situation created by Bim Saviya, specifically relating to the adjudication process of 20 Million owners.
Committee report explains as follows —— The Bim Saviya law permits only one owner per block of land . When the government embarks upon the adjudication process to investigate title of persons peacefully in possession, it is inevitable that disputes will arise amongst those who owned land in co-ownership and lived peacefully in possession with the application of inheritance laws and personal laws. Major task is to select one person amongst the co-owners to be registered in the Bim Saviya register. The report points out that the imposition of compulsory registration in this manner will create thousands of land disputes which are now dormant. After 20 years, the Samarasekera report has been proved correct. The attempt to adjudicate ownership according to Bim Saviya had failed and 1.9 Million disputes are presently on record says the Performance Report of Commissioner General. https://www.parliament.lk/uploads/documents/paperspresented/performance-report-land-title-settlement-department-2018.pdf]
Bim Saviya, a law favourable to Fraudsters .Under the Bim Saviya, once ownership of a property is registered in the e register , the title is ‘indefeasible’ or cannot be challenged. That means once your name is on the title register to a property, you are the legal owner even if you acquired the property through fraud. The owner has no legal remedy. The remedy available is to obtain compensation for the loss from the Government Assurance fund. This is the basic feature of the Australian law called Torrens law / Title registration or Bim Saviya in Sri Lanka.
E register does not prevent fraud —USA demonstrated that the benefit of e registration is only speed of registration and that an e register will not prevent fraud. New York Daily News, prepared a bogus deed to sell the popular Empire State Building to Nelots Properties and sent to the land registry. The land registry upon receipt of the phony documents registered the deed in 90 minutes . . https://www.nydailynews.com/news/money/90-minutes-daily-news-steal-empire-state-building-article-1.353477
Can the Government Pay compensation to land fraud victims under Bim Saviya law The applicability of Torrens law / Bim Saviya would have permitted Nelots Properties, LLC. to retain ownership of the building and the Empire State Land Associates owner of the building would have to be satisfied with compensation from the Government . Can the Sri Lanka Government pay compensation under Bim Saviya to those affected by fraud in lieu of court procedure? The law is given in the Bim Saviya Act 21 of 1998 in Section 60
Language in Land registries Section 4.1 of MCC says all documents & communications are to be in English and they will manage 10 registries in 7 districts . The administration of land registries in the country are managed in Sinhala and Tamil. There are Sinhala and Tamil Notaries who work only in Sinhala and Tamil. We have a language policy a fare percentage of the country can read and work only in Sinhala and Tamil Can the computers record in the local languages or is it English only ? Can all notaries be provided with computers and internet facilities ?
MCC Recommends Bim Saviya which is unsuitable. Title registration [ Bim Saviya] has been recommended for the Land Project . Lands that are to be privatised with the operation of the Land Privatisation Act to be governed by Title Registration–[MCC Annex 1 – 30, ] The MCC Land Project to funds 10 land registries in 7 districts to invest in Bim Saviya for the e register. [Annex 1 –31 ] However according to Annex 1—21 t the intended beneficiaries for 20 years will be only five million individuals. How long can the country wait to enact a law for the e register , it can be over 100 years and what would be the cost ?
E register should be administered with the Deed registration system and not with Bim Saviya The manner in which the e register is introduced without considering the law to manage the register is alarming . Foreign law is considered without informing the public or allowing lawyers to participate in the process of change. Government must pay attention to the statute which introduced technology to the country namely Section 23 of the Electronic Transaction Act 19 of 2006 which requires deeds . Section 23 of the Act specifically requires paper deeds for wills, Power of Attorney and land sales [Bim Saviya repeals the deeds] Registrar has pointed out that almost all the lands; 8.5 Million blocks will be soon on the e register governed by the deed registration system , why convert to Bim Saviya a foreign law at a heavy cost. The Registrar General says there is no problem in continuing with the deed system, according to him the fraud prevention laws recommended by the Central Bank and the Ministry of Justice are essential to manage the integrity of the e register . The Government has recently enacted the fraud prevention laws under the Trusts (Amendment) Act No. 6 of 2018 for Trust deeds only , the law has to be extended to all land transactions to prevent fraud.
Majority of the states in USA are reluctance to accept Bim Saviya [Torrens law] to administer the e register. Their main concern is that the owners do not have the fundamental right to access court when affected by land fraud and land fraud is extremely pervasive in USA. They have a similar law as the deed registration system with modern laws to prevent fraud