OVERSELLING THE MIRROR AND CURTAIN PRINCIPLES OF LAND TITLING Jaap Zevenbergen Department of Urban and Regional Planning, Faculty of Geo-Information Science and Earth Observation of the University of Twente, Enschede, The Netherlands   Paper prepared for presentation at the “2017 WORLD BANK CONFERENCE ON LAND AND POVERTY” The World Bank - Washington DC, March 20-24, 2017

INTRODUCTION Titling often ‘sold’ as ultimate land registration system Special principles of title registration over deeds registration Mirror Curtain Insurance (not always) Often principles ‘not practiced’ on the ground Price of titling has to be paid, without the proclaimed advantages taking place Re-think the registration choice !

INTRODUCTION Land registration systems; two ‘ideal types’ deeds registration title registration: “A title registration system means that not the deed, describing e.g. the transfer of rights is registered but the legal consequence of that transaction i.e. the right itself (= title). So the right itself together with the name of the rightful claimant and the object of that right with its restrictions and charges are registered. With this registration the title or right is created.” (Henssen 1995: 8).

Title Registration System Often associated with three principles: Mirror Curtain Insurance -Give an introduction to the structure and content of the talk

Mirror The register is supposed to reflect the correct legal situation (“mirror- principle”) - (Henssen/Williamson 1990: 31). “.. the register effectively reflects all interests affecting the land” (Wu, 2008). All interests ? – No, not Non-formal/Extra-legal, but legitimate rights (e.g. customary, informal, ..) Not secondary or (short) use rights (e.g. access to trees/fruit, leases under 12 year, rent, ..) Official overriding interests (e.g. people in actual occupation (Ghana), many (government) restrictions, ..)

Mirror All interests ? – No, not (2) Changed rights that are not ‘captured’ Non reported transfers (informal by law) Non reported inheritances Adverse possession (not always legally accepted under ‘titles’) Is the title mirror reflecting the correct situation ? OR Does the registered situation rule / overrule the situation ? (on the ground / legal / ..) Abuse of titling for illegal land grabs (powerful ‘buy a title’, not the land)

Curtain There is no need for further (historic) investigation beyond the register (“curtain principle”) - (Henssen/Williamson 1990: 31). So the registrar could trash the transfer documents after studying, being convinced and deciding to update the title ? - not done Unnecessary to check them at a later stage, why keep them? – evidence to support the registrar’s work (in court) Tendency to have even easy access to earlier transfer documents, to chase the ‘root of title’, e.g. in PhD on Uganda Torrens’ system (Wabineno 2016) – esp. to protect against ‘double sales’ (read double issued competing titles)

Insurance Whatever is registered is guaranteed to be the truth for a third party of good faith and a bona fide possessor who does not appear on the register will be compensated (“insurance- or guarantee principle”) - (Henssen/Williamson 1990: 31). Not always enacted Not always enough money in the guarantee fund Many years in court to win the right to compensation What about cases where ‘title’ was received through fraud, and passed on to innocent 3rd party ? Should fund pay ? (and to 1st or 3rd party ?)

OVERSELLING TITLING? It seems very demanding to operate a truly functioning title system If not, dangerous to apply mirror and curtain principles fully What then compensates the need for strong bureaucratic involvement, highly educated and well-resourced land registries, longer processing time of transactions (see Zevenbergen 2002: 54-55 ) Why not recording that is fast, cheap and realistically in its quality promises? E.g. local land recordation (see e.g. Hendriks e.a. 2016) Let us re-think the core principles of (any type of) land registration:

The four basic principles* The booking or register principle The consent principle The principle of publicity The principle of speciality *despite differences between systems (e.g. deeds or title)

CONCLUSION Title registration systems are not easy to operate The proclaimed 3 core principles seem weakened at best in practice, and even turn reality and its ‘official representation’ upside-down Title systems that do not fully function (e.g. resource deprived) suffer the disadvantages, without bringing the proclaimed advantages The true 4 core principles of land registration in general, can be met with much more ‘light weight’ land recordation solutions