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EVERYDAY LAW: Proof of land ownership


Cecil McCarthy

EVERYDAY LAW: Proof of land ownership

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“I have been informed that I will be getting a Certificate of Title to replace my title deeds which have had to be turned over to the Land Registry. How does this affect my ownership of the property?
“My attorney has told me that I live in a registered area and my title will no longer be established by title deeds but by my Certificate of Title since I now have a registered title. Please explain this.”
The above is an edited version of a letter that I received recently.
There is a difference between a title that is registered and one that is unregistered.
Title is central to the subject of conveyancing, which is essentially the process by which title to property is transferred. We currently have two systems of conveyancing existing side by side in Barbados.
The traditional system, which applies to the majority of lands in Barbados, is referred to as unregistered title. Under this system, you prove your ownership of property by your title deeds. It is therefore very important to ensure that your deeds are safely kept. Your original deeds are the evidence of title.
If you lose your deeds, you are not able to prove your title and therefore will be unable to sell or mortgage your land until you either find the deeds or have your title perfected through a foreclosure suit or more recently through an application for a declaration of title under the Land (Title Proceedings) Act, 2011.
Traditionally under our property law a vendor must show a title for at least 20 years. He must produce documents showing the transfer of ownership for at least 20 years commencing with a document referred to as the root of title.
The root of title would usually be a conveyance (that is, a document evidencing the transfer of the land from one person to another) relating to the same land which dates back for at least 20 years. A vendor must then produce each document evidencing a transfer or mortgage or other transaction affecting the said land up to the present.
The absence of a single document may mean that the vendor is unable to show good title and therefore will be unable to transfer or mortgage his property.
Title is checked at the Land Registry where most of the documents affecting the title to land are recorded. However, title is proved not by the recorded documents at the Land Registry but by the original documents relating to the land.
The system of registered title, which is intended eventually to entirely replace unregistered title, is a different system.
Here, you prove your title not by title deeds but by the entries on the land register at the Land Registry. To verify ownership, a prospective buyer or lender need only be concerned about the entries on the Land Register.
The Registrar of Titles provides the buyer or lender with a Certificate of Search, which is an extract of the entries on the land register. Proof of title is therefore shown by the entries on the Land Register and not by title deeds.
Since each title is given a separate register, transactions involving that title will be entered on the register and the process of checking title is simplified. The loss of your “title deeds” will not invalidate your title since title is proved by the entries in the register and not by the actual documents in the possession of the vendor or borrower.
There are matters that affect the title that are not reflected on the Land Register or evidenced by the title deeds.
For example, arrears of land taxes may have an impact on title, and property cannot be transferred without arrears of taxes being paid.
Even with registered title there are things that can override the interest of a registered proprietor even though not displayed on the register.
For example, rights of persons in actual occupation of property. A person may be able to make a claim as a spouse to a share of the property of the registered proprietor based on family law principles related to alteration of interests in property.

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