Build a protective wall around your land-ownership deed- Some insightful information for those who own land and those who wish to buy land

(By Kirthimala Gunasekera)

‘Land fraud’ is a broad term used to describe a wide range of deception practised by some engaged in the ‘business’ of real estate; the term includes impersonation of owners and forging of signatures to defraud owners and banks.Recently reported incidents of alleged land fraud have had a disturbing effect on the minds of land owners. An alarming feature of these incidents is that fraudsters have reportedly been successful in infiltrating the sacred inner sanctum of the land registry to destroy and deface the vital documents safely stored to support and protect the land rights of land owners.The CID has frequently warned the general public that its investigations have often failed due to the victims not being able to substantiate their (the victims’) case with evidence that normally should have been available with the custodian, the Land Registry; the ‘evidence’ having been altered, defaced, missing or torn.

Public be aware:The two circled areas, the cross reference section (on top) and the section where information on new owners should be entered are sometimes torn off or tampered with at the Land Registry

The Lanka Times in a recent article headlined ‘You may have deeds but you may not be the owner’  exposed the shocking news of vital documents missing from the Land Registry and how a fraudster duo of mother and daughter had sold a 14 perch land for Rs. 6 million to 8 different people.

This case underlined the need to build a protective legal wall around the ownership deed with documentary evidence, especially in the context of documents disappearing from the Land Registry and the sudden appearance of spurious documents that override lawful ownership.

It is therefore imperative that a land owner fortifies himself with these vital supporting documents:

A VitaldocumentsfromtheLandRegistry
Obtain certified copies of the duplicate, and the extracts from the respective land registries.

Duplicate deed: A Notary attesting a deed is mandatorily required to file a copy of the deed referred to as the Duplicate copy with the Land Registry together with the receipt paid for stamp duty. The Land Registry is expected to preserve the Duplicate copy in its archives to support the land rights of the owner.

Extracts – All deeds are recorded chronologically in pages bound together into volumes called registers. Extracts are copies of pages or sheets of paper from these volumes where the deeds are registered. The registration system of cross references gives the lineage like a family tree of ownership dating back sometimes for over 50 years giving the names of all the people who owned a particular land. The investigating officers require them for their investigations.

The owner or the owner’s notary can make an application to obtain certified copies of the above documents from the prime Government storage system of the Land Registry. In the event they are reported ‘altered’, ‘missing’ or ‘torn’ as given in the case mentioned above, the certified copies will be extremely useful as they will be prima facie evidence to prove your ownership under section 42 and 43 of the Registration of Documents Ordinance. If you have neglected to apply and collect the certified copies before a fraudulent transaction takes place, you may be in deep trouble.

The owner or the owner’s notary can also make an application to examine the above documents periodically. This may not have been the practice, but today checking may be necessary at least once a year. Some owners may have properties with deeds written several years back, and they may not know the state of these vital documents.

B] Vital documents from
the service providers

As stated earlier the idea is to build a wall of protection around your ownership deed with documentary evidence. Therefore owners need to be vigilant to register their names not only in the Land Registry, but also with the relevant service providers as these service providers will provide evidence of ownership and possession when required. They are:

1. The local authority, (Municipal Council, Urban Council or Town Council where the land would be situated). Retain the tax receipts issued for payment of taxes and obtain the ownership certificate in the name of the owner after due registration of ownership.
2. The Water Board
3. The Electricity Board
4. The telephone authorities
5. The Elections Department
6. Any others such as receipts from contractors, house keepers, repairman for repairs, clearing, fencing and renovations etc.
C] Vital identification documents

Do not rush to buy land: Land purchasers rush to complete transactions especially when they find bargains. They fail to have consultations and face-to-face interviews with owners, agents, witnesses, surveyors and even notaries. Beware of people posing as notaries. They also impersonate notaries long deceased. Check from the list of notaries maintained in land registries. Start the buying process by retaining documents to protect yourself from buying someone else’s land; exchange letters confirming the transaction with names and addresses of owners and retain covering letters from the owner’s notary forwarding copies of deeds for title examination to your notary.

Follow the law: Land buyers fail to follow the law which expressly states that, you cannot buy land unless the owner is well known to the notary, or in the alternative the owner could provide two witnesses who should be very well acquainted with the owner and the notary. The CID’s request is to obtain photographs at the time of signing the deed as investigations have failed as they are not available at the given addresses. This was stated when investigating into the complaint of a woman who bought a land without adhering to the rules of identification. She was swindled to the tune of Rs. 42 million by a person. She bought the land relying on the identity card to identify the owner. She subsequently wanted to sell the land, but the prospective purchaser diligently searched the identification of the owner and found that the land belonged to the UDA, and the woman had bought the land from a fraudsters who had pasted a forged folio in the register including his name as the owner. The suspect had cheated about 110 people previously. The CID’s advice in cases such as this is to ask the seller for a photograph or a land phone number to contact. Check the name with the relevant local authority land record book and to use a bank draft to pay the purchase price.

Exercise due diligence: Buyers need to exercise due diligence. When buying land, enquire and find out from neighbours as to ‘who owns the land or the house’. Ask for identification documents such as driving licence, birth certificates, bank documents and the documents from the aforesaid service providers. If a land is owned by a company, a search needs to be made at the Registrar of Companies to identify the directors of the company. If the owner is represented by a Power of Attorney, it is always best to contact the owner and have direct dealing with the owner. Retain all the documentary evidence with your deed.

Registering the identity of owners/new legislation
Land fraud is a subject taken seriously by other nations. They have developed advanced integrated systems of transacting laws with ‘owner identification’ methods for solicitors over the course of the past decades and also adopted biometric solutions to identify owners to prevent land fraud. Many nations have introduced electronic identity data bases to land registries to register and protect the identity of land owners. They take the thumbprints, iris and digital photos of those participating in transactions at the time of notarising documents to ensure that fraud does not take place. The internet carries an extensive range of information from different countries that can be searched under the relevant names given to the data bases. They are Enjoa – new electronic notary logbook used in the US, e-Tanah in Malaysia, Bhoomi project in India, Loucha Pathap in Manipur.

Sri Lanka is on the threshold of introducing modern technology to register lands in computers (Bim Saviya). Cybercrimes have become a real threat today and they are quite different from old-school crimes. An attempt was made in 2010 by a Justice Ministry appointed committee headed by Nihal Jayamanne PC to amend our statutes which have been operating since 1840. A long time has lapsed since 1840 and a change though essential, understandably may not be readily acceptable.

For more information write to landrightsasia@gmil.com

(Kirthimala Gunasekera is an Attorney at Law and Member of the 2010 Committee on Land Fraud. He is at present engaged in full time research on ‘Consumer protection for land owners’ and Electronic Conveyancing methods and Cybercrime.)