January 1, 2015 / Mihai Taus
Land registrars are a kind of “rara avis” in the field of legal profession. There are not so many land registrars as expected, but when they show up people are surprised. Why? Land registry is a narrow domain sometimes shadowed by more visible legal aspects. Confusions between land registry and cadaster, land registry and notaries, land registry and justice may therefore occur. This might be understandable, but is it necessary to point out that there is a clear definition of land registry regardless the way the national legislation organizes the system. In all cases land registry is dealing with the real rights. In all the cases land registry is the unique public service used to provide legal certainty and a reference system regarding property.
Nowadays the need of interoperability of the legal systems is an obvious consequence of a higher mobility of people and of the increased number of cross-border transactions. Public institutions, professionals and citizens as well need a better way to access national registries. It is a scope shared by the European Commission to make this possible.
In this context it would be welcomed to make a survey over land registrars’ national pro-file in order to have a better understanding of the land registry environment. It is out of the scope of this article to decide which system should be preferred.
European Land Registry Association (ELRA) is the organization which concentrates representatives from most of the European national land registry authorities and professional organizations. Its members have nominated contact points in a land registry experts network. The contact points are land registrars, valuable professionals who are daily involved in land registry cases, so they are always up to date with the most recent modifications of the legislation and they mostly acknowledge the impact of these modifications.
The survey includes 23 MS and it is based on 25 contributions of ELRN’s contact points.
There are no entirely identical land registry systems. Of course there are similarities at the principles level sometimes, but as deep as we study, differences show up. Even in similar organizations the profile of the land registrar might be different. This occurs due to the aims of the system. And the aim of the system is related to the land regis-try procedure, the national authority or other variables.
In most cases there is a close relation between the legal authorities and the land registry. The Ministry of Justice is the main authority in the field of land registry in 10 MS. There is a trend to take land registry out of area of justice, but this is a topic to be dis-cussed in a different context.
The roots of land registry are different, but there is a kind of temporary polarization to title systems and deed systems. However, recent changes prove a trend to move mainly to title system. There are exceptions when both title and deed system coexist in the same territory as a transitional lapse of time, or cases when different territories of the same MS are governed by different land registry systems. The explanations are to be found in the historical evolution of the state and the approach that each state had, regard-ing land registry. It is deemed that tradition plays a very important role in the evolution of the land registry.
No matter the system evolved, land registry requires specialized employees. Due to the high degree of qualification and the very important consequences produced in other systems, land registry requires specialized employees. In most of the cases land registrars have legal background.
Each system is protecting the neutral approaches to the applications addressed to the land registry. Therefore, land registrars cannot be appointed by the parties. There is only one exception referring to Portugal, where parties are allowed to choose in which registry office they want to submit their application. It might be considered that there is another exception, as long as Spanish land registrars have exclusive territorial jurisdic-tion, so it is not the party who chooses the land registrar, but the parties have no option than to address to the only land registrar who has the authority according to his/her terri-torial jurisdiction. Territorial jurisdiction of the land registrar is related mainly to the way the territory is administrated or in direct relation with the entry courts.
Things are not easy when talking about substantive jurisdiction; it differs widely and the way it is regulated is not always very clear. One may say that they are overlapping with prerogatives belonging to other legal professions, but we have to bear in mind that the land registrar’s perspective is the perspective of the one who guards a pure pub-lic interest. Provisions regarding land registry including land registrar’s substantive juris-diction and land registry procedure may be found in regulation with different hierarchic power. Unfortunately there are cases when the land registry procedure is confusing be-cause it combines both administrative and judicial procedure. After a further study, it might be discovered that due to the high degree of specificity and the undefinable concept, the land registry procedure is a genuine one. Until then, one may observe the diversity of land registry procedures and may ask rhetorically how to make those systems interoperable. It is not an easy answer, but when there is a will, there is a way. Hopefully, land registrars will be the ones to provide the right answer. And that’s because they have the first call to do that, as long they are generating the legal consequences by their deci-sions. The outcome of the land registrar is always a written decision. This decision is a distinct document representing the completion of the registration and the point where the eventual appeals have to refer. The land registrar’s decision might be subject to appeals. In certain cases there are internal procedures to solve any claim against the land registrar’s decision, but the “traditional” way is to appeal in courts. In Germany, for instance, where land registry is considered to be a very strong institution, appeals have to be addressed directly to the Supreme Court of Justice. The internal appeals are efficient as they may avoid the overloading of the courts, but that doesn’t restrict the access to justice in any case. However, most of the land registry systems subject to this study (15 out of 20) regulate the direct court appeals. The other 5 (Lithuania, Netherlands, Portugal, Romania, Spain) provide different way of internal appeals in first instance, then the unsatisfying solutions may be challenged to courts.
Liability of the land registrars is a sensitive topic and there is only the Dutch land registrar who is out of this issue. All the other could be subject to different degrees of lia-bility. The sanctions of the land registrar might have civil or penal nature, depending on the good or bad faith, or on the severity of the sanctionable act. Mainly, the liability refers to: legality, completeness, correctness and compliance with deadlines. The land registrar can have sole liability, or can share the liability with the institution. The sanctions might be disciplinary sanctions entail-ing civil liability or criminal sanctions. As a conclusion to this topic, it is deemed that the legislation might be improved in order to provide a clearer image of the land registrar’s attributions and the limitations of their liability.
Is the land registrar’s decision an independent one? This question is related to li-ability, because the land registrar shall not be liable in case the decision does not reflect his legal opinion. A strong land registry system shall rely on the freedom of the land registrar’s decision, limited only by law. No other influences shall be allowed. How else can land registry provide legal certainty and public confidence, unless the land registrar is an expert in his field and his decisions are free of particular influences? The contributors considered that their decisions are independent, but as shown below, there is a concern regarding the protection of decisional independence. Just in few cases the answers were unclear and that happened due to the way the author of the questionnaire addressed the question.
As the liability of the land registrar comes hand to hand with the effects of land registry in other areas such as investments, private/public property, loans market and other, it might be considered that land registry has a certain risk degree. As mentioned before, the land registrar has to be an expert in land registry matters and this is not easy because this is a narrow legal area with very specific rules and not too many experts. Knowing just something about land registry may be worst than knowing nothing because the lack of knowledge may lead to wrong conclusions or wrong approaches. The effects may appear in different satellite areas in (un)expected ways or moments. As some land registry systems suffered relevant changes in the past 10 years it might be interesting to study how these changes had affected other systems (courts, for instance). As discovered in a different study, East European countries might be the best area to study that.
The risks are given mainly by mistakes, corruption, frauds and inconsistent practice, generated by confusing/misleading/inadequate/weak legislation, overloading or too short deadlines. The aim of the study in this respect was to elaborate a scale of risks in case of a mistaken entry, but it seems that the author did not address the question in the best way again. However, some answers proved an intuitive conclusion that the stronger the system, the higher the risk in case of mistaken entries.
Few rows above it was mentioned that according to contributors’ answers, there is a preoccupation to protect the decisional independence of the land registrars. They were asked to specify 5 key words that should be found in the status of the land registrar. Not surprising, on top of the list are: independence, impartiality, honesty, integrity, objectivity, precision, accuracy, specificity, public credibility and liability. From the author’s point of view, this makes clear that land registrars are conscious that decisional independence comes with liability and that situation is to be preferred. This also guides to the way the land registrar’s profile should be build, taking into consideration his education, strong-points, constraints and other aspects to be discovered during this process. Some guide-lines for such a profile are already shaped:
- Land registrar is a National Authority appointed by the State
- The land registrar’s decisions are the expression of the State’s power.
- Land registrars operate a public interest activity and they should benefit of stability in their appointment and professional integrity legal protection
- The land registrar must be an expert in civil and property law.
- The land registrar’s decision must be an independent decision.
The need of interoperable systems claims for adaptation and land registry is not an exception. Land registrar’s profile as described above should become a basis for de-veloping national, European or (why not?) a worldwide land registrars’ status in order to assure a better compatibility and the mutual trust. All the information above could entail a future study by combining the collected information and adding other, according to the scope of the study. More perspectives will ensure a better possibility to reach the best way the land registry and the land registrar’s status are to be regulated.