Title to Land
Land is held here in two forms; one is unregistered land and, the other, registered land. Proof of land ownership is found in a title. When a loans officer at the National Bank of Dominica inquires as to whether or not you have "title" to the property you intend to offer as security, he or she is referring to the "title by statute" obtained either after a portion of unregistered land has been registered or a parcel of registered land has been transferred from one person to another. But the owner of land that remains unregistered also holds his or her land by virtue of a title. That title is different in nature from "title by statute" and is usually described as "common law" title. The process of obtaining a first "title by statute" from land that is unregistered and matters otherwise dealing with registered land are governed by the Title By Registration Act, Chap. 56:50 of our laws. And dealings with unregistered land are governed by the Conveyance and Law of Property Act, Chap 54:01.
In applying to the High Court for a Certificate of Title to land, the procedure to be followed depends on whether the land is unregistered or registered. It is more complicated in the case of unregistered land. Here, title may be, but is not usually, found in one piece. It commences with what in the language of the law is called a root of title, extending back in the past to a minimum of thirty (30) years. Then, a person claiming to be the owner must be able to link that root of title to either himself or herself, or to the predecessor in title, that is to say, the person who owned the land immediately before. And that link must be unbroken. The link must be made with instruments (that is, documents) or facts pointing to the history of the ownership of the land in question. A root of title may take the form of a document by itself or a fact by itself or a combination of documents and facts. For example, a deed of gift executed in 1950 by which a portion of land was conveyed to someone as a gift would be an example of a root of title constituted by a document by itself. Possession of the land over a period of thirty (30) years would amount to a root of title comprising a fact by itself. And an indenture for sale of land executed in 1950, together with a probated Last Will and Testament and actual possession of the land, would represent a root of title derived from a combination of documents and facts. It must be noted, however, that a bona fide owner of land might lose his or her right to title to a squatter claiming ownership after twelve (12) or more years of uninterrupted occupation.
Of course, documents and facts presented as proof of title are required by law to be verified. A document is shown to be bona fide by producing the original or a certified copy. Facts, on the other hand, are proven by official documents such as certificates of birth and death, probates of Wills, Letters of Administration or Statutory Declarations sworn before a Commissioner for Oaths or Justice of the Peace.
Because of these formalities it is not so easy to prove title to unregistered land. As a result of this the courts become flooded with disputes as to ownership. Indentures become useless, as they were not properly executed. Receipts get lost. Wills are rendered invalid as one, rather than the required two, witnesses has signed. Deeds of gift remain unregistered long after the donor and witness has died. Names of fathers do not appear on certificates of birth. Letters become illegible through time. Size of holdings is set by estimate, instead of by survey plans. Boundaries overlap. Declarations are sworn to as a matter of expediency. Deaths are not recorded. And memories fail, genuinely or conveniently.
A further source of court action is the legal requirement that a buyer must ascertain whether the vendor, in fact, has a good title to the land. Thus he or she or, more usually, his or her solicitor, must search, check and verify all documents and relevant facts dating back to thirty (30) years. It is an assumption of the law that such inquiries would be carried out. Hence, where this is not done at all or done negligently, and land to which the vendor has no good title is sold, the buyer's claim to ownership will not take precedence over that of the rightful owner. The buyer may sue the delinquent vendor for damages in the form of monetary compensation. But the rightful owner will not be dispossessed.
By contrast with unregistered land, title to registered land may be quite easily obtained and ascertained. The Certificate of Title registered in the Register of Land Titles at the Registry, Roseau, a duplicate original of which is, upon registration, provided to the Applicant for title, is the sole proof of true ownership. And the person or persons named as the registered proprietor or proprietors in the Certificate of Title is or are taken to be the true owner or owners; attached to the Certificate is a duly surveyed plan of the land in question. This "title by statute" is indefeasible. That is to say, unless it was obtained in error or by fraudulent means, the person or persons named as registered proprietors cannot by law be made to surrender title. Where by improper means other than error or fraud a person obtains title, the rightful owner may sue the Registrar of Titles for damages. But in that situation he or she may not be able to regain title by Court action.
The degree of protection accorded to a registered proprietor arises from the fact that the Certificate of Title is guaranteed by the State and issued under its seal. If this guarantee is to mean much, the application of each Applicant for title must undergo rigorous and exhaustive investigation and examination, to ensure that once it is approved, and ownership is registered, no one will be likely to come forward with a claim better than that of the successful applicant. For this reason the law requires, first of all, that an applicant for a first title produce sufficient documentary proof of ownership or undisturbed possession over a period of thirty (30) years or, in some cases, over a 12-year period. Then, all owners and occupiers of adjacent land are notified of the application and allowed a period of six (6) weeks in which to file objections. Further, the application is advertized so as to enable the general public to make representations within that 6-week period. Next, the application is submitted to a Judge and, if approved, the Registrar of Titles issues a Certificate of Title. This elaborate procedure explains, in part only, the delays which as a rule Applicants experience in obtaining title. Inadequate personnel working under generally inhospitable conditions probably constitutes a more salient explanation.
Land, once registered, is quite easily passed from one owner to another. The instrument for doing so is a Memorandum of Transfer. The Memorandum is not submitted to the Judge for his or her approval. Instead, it is presented to the Registrar of Titles along with a document stating the value of the land to be transferred, two Title Forms and the duplicate Certificate of Title issued to the registered proprietor. If approved, this Certificate of Title is cancelled and a duplicate of a new Certificate of Title is issued to the person to whom ownership has been transferred.
That is the procedure where the whole of a parcel of registered land is to be transferred. But, where application is made for a part only of the land to be transferred, that part is "hatched-out" from the original (master) Certificate of Title, and the Applicant is given his or her own Certificate of Title for the portion of land acquired. But, the original (master) Certificate of Title is not cancelled. It remains valid for the original amount of land less any and all parcels transferred to others.
We are led to the conclusion, then, that although it is not unlawful to hold unregistered land, landholding on that basis has been the cause of much litigation in the past, as in the present. By comparison, it is easy to both prove and transfer registered land. Further, the process of obtaining title for unregistered land is straightforward. For these reasons, holders of portions of unregistered land are strongly advised to have them registered. The Title By Registration Act, Chap 56:50 points the way forward.
(Dr. William Para Riviere is an Attorney-at-Law)
Copyright © William Para Riviere, July 2013