LAND REGISTRATION IN BERMUDA THE LAND TITLE REGISTRATION PROJECT OPTIONS FOR THE FUTURE - December 2003 John Manthorpe Advisor to HM Land Registry and former Chief Land Registrar for England and Wales

THE OPTIONS Should there be any change in present arrangements ? Inputs: The Land Title Registration Project Plan 2001 The responses to the Plan from main Stakeholders in Bermuda The 1991 paper by Sean Johnson on an Integrated Title Register and Land Information system Published guidance on land market by Island professionals The prevailing systems and legislation...and This Evaluation Study and this evening’s discussion

Land - Land Rights - Holders of Rights Land Rights L a n d a n d P r o p e r t y Holders of Land Rights deed

LAND RECORDING AND LAND TRANSFER Alternative systems throughout the World Deeds in private custody No shared or public knowledge of ownership or of rights. Proving ownership and making enquiries can be difficult, hazardous and expensive Registration of deeds The document is registered and held in a public office to facilitate access to it and to ‘give notice to the world’- enquiry through the filed documents can be still be difficult and time consuming Registration of title A public land register is maintained for each separately owned property indicating also beneficial and subjective rights. The land register is related to a map to facilitate searching and enquiry. The land register is guaranteed by the State as the legal record of the ownership and other rights and is officially updated as transactions occur.

LAWYER OR REAL ESTATE AGENT NO MAP INDEX PUBLIC INDEX MAP TITLE REGISTRY NOTARY AGREEMENT BETWEEN PARTIES DOCUMENT GENERAL BOUNDARIES State guaranteed - compensation Paid for errors or loss PRECISE BOUNDARIES DOCUMENT DEEDS REGISTRY PRIVATE CUSTODY Appeal to the courts Limited guarantee OPTIONS

LAWYER OR REAL ESTATE AGENT NO MAP INDEX PUBLIC INDEX MAP TITLE REGISTRY NOTARY AGREEMENT BETWEEN PARTIES DOCUMENT GENERAL BOUNDARIES State guaranteed - compensation Paid for errors or loss PRECISE BOUNDARIES DOCUMENT DEEDS REGISTRY PRIVATE CUSTODY Appeal to the courts Limited guarantee OPTIONS

ISSUE - 1 A REGISTER OF DEEDS OR A REGISTER OF TITLE ? Register of Deeds With Deeds Registration responsibility for the accuracy of the Document and its legal content remains with the lawyer as now. The lawyer is responsible for ensuring the documents are lodged for registration at the Deeds Registry. The Registrar is responsible for ensuring that any lodged Deed has been properly drawn, witnessed etc. The Registrar is responsible for filing and indexing the relevant documents relating to any property in such a way that they can be quickly located and accessed by authorised enquirers. Conveyancers locate existing title deeds by enquiry of the Registry but must conduct usual examination and create new conveyance etc as now.

ISSUE - 1 A REGISTER OF DEEDS OR A REGISTER OF TITLE ? Register of Title On first registration (whether systematic or sporadic) the documents of title must be made available to the Registrar for examination and adjudication. Once completed a title register is prepared setting out the address, ownership, legal rights and burdens (e.g. mortgage) that affect the property. The title register is in a standard format and supersedes the earlier conveyances as the legal record of the title. Normally the accuracy would be guaranteed by the state. Such a register would be held electronically and would be accessible on line by those authorised to inspect and take copies. On subsequent registered transactions a guaranteed ‘official copy’ of the register would be issued on request as evidence of title. It would be the basis for taking a sale, purchase and mortgage to contract and completion using simple documentation. On completion a document of transfer to the new owner would be sent to the Registry by the owner or his lawyer so that the register could be updated. A revised certificate of title would be issued (or could be accessed on-line).

ISSUE - 2 Compilation of the Register - Systematic or Sporadic ? To establish a land register (by first registration), whether of Deeds or of Title, will require that documents of ownership and other rights are lodged at the Land Registry office. This can be done systematically property by property (area by area) or it can be done sporadically when a transaction or other event takes place. Voluntary registration is an additional option. Owners (or their agents) will have to bring forward their documents for assessment and registration by the Land Registrar. Others with legal interests in a property (e.g. mortgagees or neighbouring owners) may need to be consulted as to the outcome of the registration process.

ISSUE - 2 PROS AND CONS OF SYSTEMATIC OR SPORADIC COMPILATION Systematic Centrally controlled Planned timetable to ultimate completion Inactive properties registered Need for existing owners and others with legal rights (or their agents) to offer up documents of title or mortgage etc. Cost incurred by owners even where no future transaction envisaged Anxiety and, potentially, dispute can be generated particularly if boundaries become an issue

ISSUE - 2 PROS AND CONS OF SYSTEMATIC OR SPORADIC COMPILATION Sporadic Registration triggered by event - usually sale Application made by lawyer on completion of purchase to register new owner and any mortgagee Registration undertaken by Registrar at a time when the title has already been examined and accepted by the purchaser’s and mortgagee’s lawyer Overall cost of compilation per property reduced No ‘disturbance’ of settled ownerships Progressive compilation with rate governed by market activity - option to ‘sweep up’ ultimately by systematic approach. Longer time-scale for complete compilation. Compilation can be supplemented by voluntary registration

ISSUE - 3 MAPPING AND BOUNDARIES - PRECISE OR GENERAL ? Any worthwhile Title or Deeds Registration system must enable enquirers to locate the property on a map so as to identify the unique reference numbers which enable access to the relevant land registers or filed Registry documents of any property. The minimum requirement is an Index Map for the whole territory, based on a reputable and up to date survey at a large enough scale to identify individual parcels. The general extent but not the precise ‘legal’ boundary of each registered property would be delineated. The unique title number of each property would be recorded on the Index Map. Where digital mapping is available this would be the ideal base for the Index Map. The general extents and unique title number references would be recorded on the Index Map at the time of first registration.

ISSUE 3 MAPPING AND BOUNDARIES - PRECISE OR GENERAL ? Precise boundaries Precise or fixed boundaries require that all properties are related to a single, accurate, large-scale map of the jurisdiction based on a national grid or co- ordinates. The precise ‘legal’ boundary of a property must be determined so that any physical feature defining the boundary can be re-established exactly in the case of its destruction or removal Implicit in a system of registered fixed boundaries is that these are established with the concurrence of neighbouring owners The process of establishing the precise boundaries requires correlation of the conveyancing plans of adjacent properties and their positioning onto the national map Owners can be defensive and anxious where a government sponsored survey seeks to examine their property boundaries Issues which may otherwise have lain dormant can be the basis of dispute particularly where documentation is silent as to ownership of fences etc or the plans are ambiguous. The ‘ultimate’ system but precise boundary demarcation is expensive Transition from deeds in private custody directly to a precise boundary system is a major undertaking

ISSUE - 3 MAPPING AND BOUNDARIES - PRECISE OR GENERAL ? General boundaries The Registrar records the general extent of the registered property on a large scale topographic Public Index Map Extents are derived from the plans attached or referred to in conveyances but any evident discrepancy between the physical features on the Index Map and the conveyance plan are investigated by survey, enquiry or requisition The accuracy is limited to that obtained by the tolerances of the survey and the map. No specific check is necessarily made on the ground nor are the precise position of the boundaries guaranteed ‘to the last inch’ The basis of the general boundary concept is that purchasers ‘buy what they see’ and the onus is on them prior to purchase to be satisfied that the defined extent of the property on the ground is what they are contracting to buy. It is possible that provisions can be made to allow those who elect to have their boundaries fixed to do so with the agreement of their neighbours and at their expense.

LAND REGISTRATION - POLICY AND SYSTEM OPTIONS Register of Deeds Systematic compilation General boundaries Guarantees and compensation by Registrar with appeal to the Courts Open access to the Register Self financing Publicly appointed Notaries Register of Title Sporadic compilation Precise boundaries Disputes and claims resolved by the Courts Restricted access to the Register Subsidised or profit making Private professional Lawyers and Real estate Agents

LAND REGISTRATION - POLICY AND SYSTEM OPTIONS Register of Deeds Systematic compilation General boundaries Guarantees and compensation by Registrar with appeal to the Courts Open access to the Register Self financing Publicly appointed Notaries Register of Title Sporadic compilation Precise boundaries Disputes and claims resolved by the Courts Restricted access to the Register Subsidised or profit making Private professional Lawyers and Real estate Agents

Creating new rights in land Agreement Purchase, Loan or other right Contract Adjudication*Registration*Updated Land Register* Search of land register*

Registration Records  Register  Title Plan  Index Map  Paper mapping archive  Scanned documents

The Register

Public - Private Players in the Land Market Municipality Land Registry Ministry of Finance LendersLawyers Estate Agents CitizensBusiness Surveyors Private contractors - support services Central and Local Government

Land Administration Structure Citizens Businesses Public Authorities Environment Justice Environment Agriculture, Municipalities National Mapping Land Valuation and Taxation Land Registration Land Use Finance LAND RECORDS AND INFORMATION Lawyers Notaries Banks Lenders Estate Agents

Property Market activity on the Land Register Daily Annual (millions) Is the land registered ? m Copy registers and title plans m Searches securing priority m Registered transactions m All activity on the register m Number of registered titles ( ) 18.4 million In addition new First registrations (1250 a day) were handled (Source: Chief Land Registrar’s Annual Report all totals rounded)