Professional Documents
Culture Documents
La Chapter 3
La Chapter 3
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UNIT 3
LAND REGISTRATION AND ITS LEGAL
BASIS
By Asrat J
April 2023
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•There are four main areas of law that affect the process of land
administration. These are:
1. The law of real property that affect the dealings in land
2. The laws on land reform such as
Privatization of state owned land
Restitution of former private land
Land consolidation
Redistribution of land
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3. The laws that govern the conduct of land administration such as the
regulation that control the operation of cadastre, property formation,
4. The laws on ‘intellectual’ property that affect matter such as
Ownership of information and idea
Protection of data
Personal privacy
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Land may be owned by one person, in possession of another and occupied by a third person.
Ownership means the right to enjoy the use of something, the ability to dispose it and to benefit
from the rights associated with it.
•Possession refers to the ability to enjoy the use of land and in some situations to exploit the
products on or below its surfaces. Possession implies the physical power to control an object.
Thus, a possessor of land has the ability to make use of the land in some way or another.
Possession may be legal or illegal. Legal possession of other people’s land takes place through
formal agreement such as lease or rental agreement that protects the right of the true owner.
•Land may also be subject to adverse possession, when the occupation is contrary to the interests
of the true owner.
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•Adverse possession refers to the acquisition of property rights through occupation of land without any
opposition for a period prescribed by law.
•Adverse possession is also known as squatting which is an illegal occupation of land. Many landless
people are forced to squat on the land as they have no where else to go.
• Squatting is usually taken place on state land. It is a major social and economic problems that is
associated with
Poverty
Crime
It is a usual phenomenon in the cities of developing nations. This problem can be solved with effective
and efficient land administration system.
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Nations that draft and enact new land laws need to ensure that the law:
Distinguishes Between real and personal property (immovable and movable property).
Defines the nature of land, the form and nature of ownership and legally recognized
forms of tenure,
Distinguishes between ownership, possession and the use of land and protects the rights
of land lords, tenants and third parties including those of mortgagees,
Define how right can mature
Establish, with in the public section, an independent, self financing land registry
institution with clear statutory power.
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•The most important types of land tenure or real property identified in most
cadastre systems can be characterized as follows:
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•Ownership usually means the exclusive right to use the parcel and enjoy the yield from
the land and improvements. It also includes the right to transfer the parcel to another
person, to mortgage the property and to lease it. All of these rights may be more or less
restricted by legislation. It is common today that the legal rights of the land owner are
restricted to using the parcel of land in a manner that is beneficial and appropriate from
a community perspective. Restrictions may also include measures to protect the
environment. Ownership of the land usually includes ownership of any buildings on the
land, but in some jurisdictions land and buildings may be owned separately.
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•Lease gives the lessee or grantee the right to use the parcel (or part of a
larger parcel) for a limited time, in accordance with the regulations stipulated
not only in legislation but also in the contract with the lessor. The lessor may
be a private landowner or a government authority. The time span of a lease
varies from very short periods (e.g. several months) to periods of up to 99
years or longer.
•Leasehold tenure is usually not transferable to a third party without the
consent of the owner.
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•Mortgage is a limited right in which real property is pledged to secure money. If the property owner
does not live up to the terms of the contract (e.g. does not meet monthly payments on the loan), then the
lender has the right to recover any losses incurred by taking possession of the property. There may be
more than one mortgage affecting a property and the right of recovery for losses will depend on the
priority given to each mortgage. In some jurisdictions, the lender actually acquires the title or
ownership of the property at the time the mortgage contract is signed. In this case the property owner
has the right of possession and use but the full ownership only transfers back when all the terms of the
contract have been met (e.g. all payments have been met). In other jurisdictions, the lender only
receives the right to repossess the property if the property owner defaults on the mortgage (e.g. does not
make the payments required).
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•The term registration refers to an active process where by the result could
be called a ‘register’ and an organization doing this a ‘registry’.
•There are two basic components to a land records system namely a piece
of land and the rights over that piece of land.
•The basic unit in the land registry is a parcel and its boundaries.
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Historically, land records have been carried out for two main purposes.
• First, as fiscal record primarily for the public sector, they have served as the
basis for the full and accurate taxation of land.
•Land registration systems are often used as a source of government revenue
through the collection of fees and transfer taxes.
• Second, as a legal record, primarily for the private sector, they have used as
registers of ownership and other related rights.
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3.3.2. Cadastre
•According to Henssen(1995)
• Cadastre is a methodically arranged public inventory of data concerning
properties within a certain country or district, based on a survey of their
boundaries. Such properties are systematically identified by means of some
separate designation.
• The outlines of the property and the parcel identifier normally are shown on
large-scale maps which, together with registers, may show for each separate
property the nature, size, value and legal rights associated with the parcel.
• It gives an answer to the question where and how much.
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Importance of Cadastre
•Traditionally the Cadastre was designed to assist in land taxation, real estate conveyancing,
and land redistribution.
•The Cadastre helps to provide relevant information and helps to improve the efficiency of
those transactions and security of tenure in general.
•It provides governments at all levels with complete inventories of land holdings for taxation
and regulation.
•But today, the information is also increasingly used by both private and public sectors in
land development, urban and rural planning, land management, and environmental
monitoring.
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•Graphical indices of these parcels, known as cadastral maps, show the relative location
of all parcels in a given region.
•Cadastral maps commonly range from scales of 1:10,000 to 1:500. Large scale diagrams
or maps showing more precise parcel dimensions and features (e.g. buildings, irrigation
units, etc.) can be compiled for each parcel based on ground surveys or remote sensing
and aerial photography.
•Information in the textual or attribute files of the Cadastre, such as land value,
ownership, or use, can be accessed by the unique parcel codes shown on the cadastral
map, thus creating a complete Cadastre.
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•The Cadastre forms part of the base data required in any public land
information system. Since information about land parcels and land holdings
is often needed by many different users, having a unified, standard
Cadastre for each jurisdiction helps to avoid duplication and assists in the
efficient exchange of information.
•The Cadastre is usually created and managed through government
organizations.
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•Through the centuries, many types of Cadastral systems evolved and their
differences often depend upon local cultural heritage, physical geography, land
use, technology, etc.
Cadastres may be classified in many ways, e.g. by:
primary function (e.g. supporting taxation, conveyancing, land distribution,
or multipurpose land management activities);
the types of rights recorded (e.g. private ownership, use rights, mineral
leases);
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•All of these factors help to determine the required resolution and scale of
graphical data (such as cadastral maps), the type and characteristics of data
recorded in both the graphical and attribute files, and the organizational and
professional responsibility for managing the data.
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Other factors that will influence the format and management of the Cadastre include:
history, culture, and traditional land tenure arrangements;
area;
physical and economic geography;
population distribution;
level of technology;
traditional public administration arrangements;
land and property law arrangements;
land policy priorities for the jurisdiction
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2. Real Cadastre:
•Real property Cadastre is carried out primarily for the physical mapping of
land holding boundaries and locating other real properties for land inventory.
•Real property comprises of not only land, but also buildings, trees etc.,
which are permanently attached to land. Minerals below the surface are also
integral part.
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3. Legal Cadastre:
•Legal cadastre is carried out so as to determine legal ownership and
registration of legal transactions. The requirements of physical survey of
land boundaries prior to land registration may not be necessary since
registration can be based on old documents.
•Thus, in general, the legal cadastre is a complement to both property
cadastre and tax cadastre.
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•Success of a Cadastre
•There are several distinguished criteria that can be used for measuring the
concrete or prospective success of a Cadastre These criteria are:
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A. Deeds Registration
• A deed refers to a written instrument recording the transaction affecting
or claiming to affect the right.
• It is a record of an isolated transaction and evidence that that particular
transaction took place.
• However, it is not evidence by itself that the legal right of either party to
undertake the transaction process and as a result no evidence of the
legality of the transaction itself.
• A deed is only executed when there is some change in the possession of a
right and a register of deeds is a record of transactions in rights and not
of the rights themselves.
• The deed system is man-related
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• The main advantage of deeds is that the procedure for accepting the deed
by the registrar can be very quick.
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•Improved accessibility to facilitate the searches: It is possible to make the search process
easy through introducing a fully alphabetized name index and even a property index (like the
Scottish ‘search sheets’).
•Better object specialty: a nation is able to make clear (graphical) descriptions of
boundaries, use of parcel or index maps, and use of straight forward identifiers
•Use of computer: Land registration systems have existed well before the introduction of
computer. However, the use of computer is very crucial in land registration system due to the
increase in complexity of society and the increased density of population in certain areas.
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•Land based
• Sure evidence
•Little need for investigations
•Active registrar
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• The most important difference in between these two Acts is that the
1862 Act states that should be determined before land registration took
precise boundaries place whereas the 1875 Act introduced the concept
of general boundary that is the prevailing one in England.
• However, both Acts were not successful in achieving their target. Only
1000 titles were registered with in 40 years.
• The reasons were that registration was carried out on voluntary base
and the cost of registration was covered by the owner of the land.
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• The process does not ask for preparing an index map of the area before
registration can commence. It uses existing large scale topographic
maps.
• When combined with the use of ‘general boundaries ‘, this allows for a
quick and relatively cheap start.
• The land registry is the central agency. It is primarily an administrative
body, although it follows to the ministry of justice, and the Chief Land
Registrant has some judicial powers.
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• The title register under the Torren system is applied to all land granted
by the crown after the introduction of the Transfer of Land Act
developed by Torren.
• Two grants are issued in this system for each peace of land at first
registration:
•One is called the original grant
•The other is the duplicate
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• The original crown grant is held by the office of titles in the register
book which is open to the public and the duplicate is issued to the
grantee.
• The grant describes the land by means of a diagram (an isolated survey
plans )which appears on both the original and the duplicate. It also gives
• The name of the grantee and his occupation
• The price paid for the property
• Any limitation and special reservation
• Area and its crown description
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• The main feature of the Torren system is that the land in question is
identified on a map attached to the certificate of title and the certificate
of title gives the details of ownership as well as description of the land
with appropriate reference to the easement, encumbrance and other
conditions.
• All transfers have to be applied, examined and registered at the office of
titles. This mandatory requirement is also a very crucial characteristic of
the Torrens system, for the crown can thus guarantee the new
ownership.
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•Land adjudication process neither changes the existing rights in land nor
creates a new one. Rather it establishes what rights exist, by whom they
are exercised, and to what limitation.
Adjudication is an essential prerequisite for certain land measures such
as:
Land registration
Land consolidation
Disposition of state land
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• The word “Sporadic” in this context means “here and there “or “now
and then”. Thus adjudication takes place whenever or wherever there is
a reason to determine the precise user rights and limits of individual
parcels
• Sporadic adjudication may be voluntary or compulsory. If it is voluntary,
it may be initiated by the owner or occupier.
• The cost of sporadic adjudication is normally covered by the applicant.
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Where systematic adjudication of title to land takes place there should be:
•A law that gives authority for the adjudication to take place;
•Selection of priority in accordance with need-for example areas that are to be
subject too land reform, are under rapid development, have a high level of
disputers, or where there is need for credit, etc.,
•Wide publicity concerning the areas and the dates on which the claimants must
appear to give evidence;
•Procedures for the appointment of adjudication team;
•The determination of the rights in accordance with prescribed procedures;
•The publication of the results and the hearing of appeals within a specified time
limit such as 30or 60 days;
•The formal entry of the results into the registers of title that should from then on
is guaranteed.
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Boundaries
• In a legal sense, a boundary is a surface, which defines where one land user’s property ends, and
the next begins. Generally, this surface is vertical and may be likened to a bead curtain
suspended from the sky so that anyone passing thought it from one side to the other passes
from one set of property rights in to another.
• In practice, most people mark the limits of their property of the surface of the Earth either with
linear features, such as fences or hedges, or with point features, such as wooden pegs, iron bars
or concrete marks. These physical objects may also be referred to as the boundary, thought they
may not follow the same line in space as the legal limit. In most legal systems, a fence is an item
of defense, a guard against intrusion; it is not necessarily a property delimiter.
• Within a registration system, boundaries are often referred to as either “fixed” or “general”.
These terms are ambiguous for there are at least three concepts of a fixed boundary and three
for general boundaries.
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• In the case of general boundaries, the precise line of the legal boundary
between adjoining parcels is left undetermined as to whether it is one
side of a hedge or fence or the other or down the middle. The user
rights of the land can be guaranteed up to the bounding feature, the
user rights of which are left uncertain. There is no need for a precise
survey, although a reasonable accurate topographic plan is needed.
General boundaries are most appropriate where the development of
the landscape is mature, for example in urban areas and in rural areas
that have been cultivated for a long time so that the pattern of land use
is well established.
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• According to Feder and Feeny (1991) land titling can bring the above mentioned
benefits through three main mechanisms.
• These are
By increasing security of tenure, it can remove disincentives to invest in land or
capital equipment for working the land; this is sometimes known as the
investment demand or security effect.
By increasing access to credit, thanks to use of the land as collateral, it can
remove constraints to, and reduce the cost of, both capital for long-term
investments and working capital; this is sometimes known as the collateral effect.
By improving the functioning of land markets, it can ease the re-allocation of land
to its most productive use; this is sometimes known as the efficiency or
transactions effect.
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Cadastral Surveying
• Cadastral surveying refers to the definition, identification, demarcation,
measuring and mapping of new or changed legal parcel boundaries. It usually
includes the process of re-establishing lost boundaries and sometimes
resolving disputes over boundaries or other interests in real property.
• Cadastral surveying is usually undertaken using ground survey methods. A
cheap and simple method is to use plane tables or tapes and optical squares.
• More sophisticated methods include the use of electronic distance measuring
equipment or "Total Stations", which usually give higher accuracies. Satellite
positioning fixing using the Global Positioning System (GPS) is being
introduced more and more and promises to give high accuracy at a relatively
low cost in the future.
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