Wednesday, December 3, 2008

Archaic Land Law facilitates fraud

Archaic Land Law facilitates fraud
November 30, 2008 | By knews | Filed Under News

By Gary Eleazar

Two attorneys have signaled their intention to wage a campaign aimed at updating the Local Land laws with a view to making it mandatory for an agreement of sale to be recognised as having a vested interest.
Attorneys-at-Law Anil Nandlall and Manoj Narayan said that in Guyana the system of Land Law that was inherited was Roman Dutch and does not cater for equitable interest of land.
Attorney-at-Law Manoj Narayan

Attorney-at-Law Manoj Narayan

Under this system, land is owned by a titled document known as a ‘transport.’
This transport confers upon its holder absolute ownership.
Under English Law a title holder, once he enters into an agreement of sale the purchaser in that agreement acquires an interest which is called an equitable interest in the land which the purchaser can sell, dispose of, mortgage or alienate.
Under English Law, the titled owner of the property, after entering into an Agreement of Sale with any other person, “cannot deal with that property as he sees fit…every subsequent dealing with the property is subject the purchaser’s equitable interest.”
The attorneys did point out, however, that under the Roman Dutch System there are mechanisms in place to protect the interest of the person entering into an agreement of sale with the transported owner of the land.
These mechanisms, however, are viewed as inadequate, “based on experience” to protect the potential purchaser of the land.
Morally, the persons selling the property, once having entered into an initial agreement of sale, ought not to enter in another. “But this is happening.”
Technically, under the present system, every conveyance from one owner to another must be advertised in the Official Gazette so that a person who has an interest in the land has the opportunity to oppose the passing of the conveyance on the grounds that the person already has an interest in that land, which is the agreement of sale already entered to.
“Once that opposition is filed within the prescribed time then the conveyance would not pass.” However, the problem that this poses is that very rarely would a person who enters into an agreement of sale check with the Official Gazette.
Attorney-at-Law and Member of Parliament Anil Nandlall

Attorney-at-Law and Member of Parliament Anil Nandlall

It was noted, also, that the availability of Official Gazette has also been a problem.
“As a result many people lose their deposits, are ousted out of the transaction and a great miscarriage of justice occurs because the land is then sold a second time to a third party and transport is passed to that person without the knowledge of the original purchaser.”
According to the attorneys, there were many instances that are currently pending in the local courts and as such the injustice continues unabated on several Guyanese who on a daily basis lose their hard earned money because of an archaic law.
“Under local Deeds Registry Act, a transport confers upon the holder absolute ownership subject only to certain interest therein lifted,” exclusive of an agreement.
The attorneys are seeking to have an agreement of sale included under those provisions as a registered interest, making it mandatory to have the agreement registered at the deeds registry and endorsed on the transport hence barring any subsequent agreement of sale without involving the purchaser in the original agreement of sale giving that person a real opportunity to oppose the sale because he would have a registered interest in the land in question.

No comments: