Améliorer l'efficacité des systèmes de registre

Dans maints pays en développement, les systèmes cadastraux sont notoirement inefficaces et coûteux. Une grande part des débats sur l'amélioration des systèmes a été consacrée aux modifications à apporter à la législation pour remplacer des systèmes fondés sur la possession d'actes de propriété par des systèmes fondés sur la possession de titres. Toutefois, lorsque des réformes administratives et techniques sont introduites, la distinction entre les deux systèmes peut s'estomper dans la pratique en dépit des différences entre les principes juridiques qui les sous-tendent. De surcroît, les réformes du cadastre et des offices du cadastre risquent de rester lettre morte si les autres services d'administration des terres ne suivent pas et si leurs responsables continuent de considérer les utilisateurs des systèmes de cadastre comme des demandeurs au lieu de voir en eux des clients ou des usagers.

Aumentar la eficacia del registro predial

Los sistemas catastrales son en muchos países en desarrollo muy ineficaces y costosos. Los esfuerzos para mejorar los registro prediales se han centrado en cambios de legislación para permitir la transformación de las escrituras en títulos de propiedad. Sin embargo, cuando se implantan reformas administrativas y técnicas, puede esfumarse la distinción entre escrituras y títulos a nivel práctico, a pesar de que haya diferencias en los principios jurídicos que sustentan unas y otros. No es probable que las reformas de los registros y oficinas catastrales acarreen beneficios si los procedimientos que afectan a otros organismos de la administración agraria siguen siendo ineficientes, y si los funcionarios siguen considerando a los usuarios del registro predial como «solicitantes» en lugar de «clientes».

Making land registration more effective

D. Palmer
David Palmer is a Land Registration and Cadastre Officer in FAO's Land Tenure Service

Land registration systems in many developing countries are notoriously inefficient and expensive. Much of the debate on improving systems has centred on changes to legislation to allow the conversion from "deeds" systems to "title" systems. However, when administrative and technical reforms are introduced, the distinction between deeds and titles systems can become indistinct at the operational level, despite any differences in the legal principles that underpin them. Moreover, reforms within registries and survey offices are not likely to bring benefits if the interagency processes that cut across other land administration agencies remain inefficient and if agency officials continue to regard users of registration systems as applicants rather than customers or clients.

INTRODUCTION

Every day, vast numbers of documents are submitted to land registration systems in developed countries. Recent investigations by FAO of registration systems in Austria, the Netherlands, New Brunswick (Canada) and New South Wales (Australia) show that the number of transactions each country or state registers every month is equivalent to about 1 percent of its population. These land registration systems are closely tied to credit markets. The registration and discharge of mortgages account for between 45 and 70 percent of all registered transactions. Furthermore, these registration systems contain almost all of the parcels in their jurisdictions; the total number of registered parcels represents the equivalent of between 50 and 100 percent of the population.
The comparison with many developing countries, where land registration systems typically contain a relatively small number of parcels, is striking. Statistics are difficult to obtain, but in some registration systems the volume of registered parcels appears to represent a number equivalent to 10 percent or less of the population. Links to credit markets are tenuous, with the volume of credit-related transactions accounting for perhaps less than 10 percent of all transactions. In such cases, land registration systems serve only the elite; any benefits they might bring do not flow to the majority of the population.
Because of, or perhaps in spite of, these problems, there is continued interest in the design and implementation of land titling and registration projects around the world. Some projects aim at increasing the number of titled and registered parcels in jurisdictions, either as a goal in itself or to support sectoral initiatives such as forestry or irrigation schemes. These projects focus on providing legal recognition to existing property holders through a process of formalization or on allocation of new land rights to the landless or near landless. Other projects strive to replace existing land registration systems with more efficient ones by changing the legislative framework.
This article describes general approaches to improving land registration systems. It starts by reviewing ways in which registration systems can be classified. Such classifications, however, do not by themselves show how registration systems can be made more effective and efficient in practice. Improvements to registration systems must centre on their roles as providers of information and protection. The article then describes three areas in which reform can occur: within the registration system itself; within the relationship with other land administration agencies; and within the relationship with fee-paying users of the registration system. Reforms may be needed in all three areas in order to reduce transaction costs, thereby making registration systems more accessible to greater sectors of the population.

CLASSIFICATIONS OF REGISTRATION SYSTEMS

Much of the present debate concerns the need to convert deeds registry systems into title systems. This debate is complicated by the fact that people often have different views of what constitutes a deeds or a title system. Indeed, many registration systems around the world do not fit conveniently into a simple dichotomy. In practice, registration systems can be distinguished in terms of several factors:

• How are rights to land legally acquired? Generally, through one of two ways:

1. Transfer may take place when parties execute a contract, for example, by signing an instrument of transfer such as a deed.
2. It may take place when an instrument of transfer is registered.

• How can the holding of rights be demonstrated? Again, there are two main options for this:

1. Proof may be a currently registered transfer instrument backed up by a historical "chain" or sequence of registered instruments describing previous transfers of rights.
2. It may be a certificate of title (or sometimes a registered transfer instrument) backed up by an entry in a land register. Although the land register is considered to prove who holds rights to land in title systems, many such systems require proprietors to show their certificates of title before they can enter into a registered transaction. When a mortgage is registered, title systems often require that the proprietor surrender the certificate of title to the registry until the mortgage is discharged.

• To what extent are registered rights protected? Protection of rights represents the extent to which a jurisdiction stands behind its public registry. In general, registration systems give priority to people with registered rights over those with unregistered rights, although there are invariably cases where unregistered rights (so-called overriding rights) prevail over registered rights. Registration systems also tend to protect those who purchase property rights in good faith and do not protect those who acquire the rights fraudulently. Jurisdictions have adopted various solutions to the problem of a good-faith purchaser registering property rights acquired from a fraudulent party. In such cases, there are two good-faith purchasers; the original proprietor who was defrauded and the new purchaser who innocently acquired the rights. Which good-faith purchaser should be protected? Several options exist:

1. The second good-faith purchaser who registers the transaction may prevail over other claims. Some systems assume that the registered proprietor acted in good faith and the onus is on the challenger to prove otherwise. This may be difficult to do if the purchaser followed due process.
2. The original proprietor may prevail over other claims, and regain the land.
3. Ownership may revert to either claimant depending on circumstances. For example, a good-faith purchaser who unwittingly used a forged document when registering the transaction may lose the claim to the original purchaser. On the other hand, the original defrauded proprietor may lose the right to reclaim the land if too many years pass before an objection is raised.

• To what extent is compensation paid if rights are lost as a result of registration? Whatever rules are adopted, there will be winners and losers when deciding which competing good-faith purchaser gets preference. The winner gets the land back, but what does the loser get? A wide range of options exist:

1. The state may provide no indemnity against loss. Instead, an innocent person who suffers loss as a result of registration is expected to recover damages against those who caused the loss, in the case of fraud, or against property practitioners, if the loss was caused through their negligence. The state may provide some assistance through the court system by ordering that damages be paid.
2. State liability for damages may be restricted to cases of state officials' failure to exercise reasonable care in carrying out their duties. For example, no compensation might be paid in the case of fraud that could not be reasonably detected by registry officials.
3. State liability may be extended to provide compensation regardless of the reason for the loss. The state may then attempt to recover damages from the parties who caused the loss, for example in the case of fraud or negligence.
4. Private indemnity funds may be established by professional associations (e.g. lawyers, surveyors) to cover losses arising from the negligence of their members.
5. Private indemnity funds may exist in the form of title insurance that protects against registration losses (resulting from fraud, professional negligence, etc.) as well as "non-registration" losses such as lack of legal right of access to the parcel.

Differences between registration systems are often expressed in terms of a simplified dichotomy based on the four dimensions described above. At one extreme, there are systems where rights are acquired through registration, ownership is proved through a register and certificate of title, registered rights are guaranteed against other claimants, and compensation for losses arising from registration is provided through a state indemnity fund. Such systems are often referred to as titles systems. At the other extreme, there are systems where rights are acquired when parties execute a contract, ownership is proved through a chain of title, registered rights do not necessarily prevail over other claims, and no state compensation exists for cases of loss resulting from registration. Systems of this type are commonly called deeds systems.
The conceptual model of a simple dichotomy represented by these two extreme types of registration systems is not reflected in practice. Many registration systems fall between these two extremes and cannot be assigned easily to either category. This is particularly true of systems in countries that do not follow English land law. Consequently, rather than just looking at simple classifications of registration systems, closer attention should be paid to their roles.

ROLES OF REGISTRATION SYSTEMS

Registration systems serve two major roles: as information providers and as protection providers.
As an information provider, a registration system should reduce asymmetry of information among the parties in a transaction. In doing so, it introduces a level of trust that allows strangers to conduct business with one other (for example, proprietors with prospective purchasers and lenders). Moreover, a registry can help facilitate good governance by providing an information base for government duties and services. For example, agencies can only design and enforce plans to protect valuable resources if they know who has authority over those resources. Many jurisdictions have divided registration information into two categories: registry records and survey records (sometimes referred to as cadastral records).
Registry records provide answers to the following two questions:

• What types of rights are involved? Property rights, together with duties and powers, comprise a dense network of intersecting interests. In the recent wave of democratization, much attention has focused on the registration of what are commonly considered ownership rights, although the term "ownership" is not generally defined in law. A variety of other secondary rights, such as mortgages, leases and use rights, may also be registered. In addition to these voluntary or consensual registrations, involuntary or compulsory registrations can result from court orders.
• Who holds rights to a parcel of land? Several types of holders may exist. For example, a right to land may be held by a single person, a married couple, a family, a group, an incorporated non-profit association, a commercial association or a government agency. Since more than one type of right can exist, a single parcel may be associated with a number of different holders of rights. People holding rights should be identified without ambiguity. When it is common for several people to share the same names, some jurisdictions use additional identifiers, such as date of birth or personal identity number.

Cadastral survey records provide answers to two additional questions:

• Where is the parcel in which the rights are held? Location can be defined in several ways, for example by specifying the local administrative district, the neighbouring parcels, the cadastral map sheet reference and/or the survey coordinates.
• How are the boundaries defined? Boundaries can be demarcated by features that run the length of the boundary (e.g. watercourses, walls, hedges) or features that indicate boundary corners. In either case, boundaries should be described in enough detail to allow them to be reconstructed if the original features are lost.

Registry records and survey records are often conceived as two quite separate information systems, each captive to its respective profession (lawyers or surveyors) and administered by different agencies. In contrast, some jurisdictions have assigned the responsibility for administering registry and survey records to a single agency. Regardless of the administrative solution, a registration system should allow users to interrelate information on "who" and "what rights" with "what parcel".
As a provider of protection, a registration system should offer some protection to those with registered rights against the claims of others. A registration system is thus more than just a land information system. As noted above, the degree of protection can vary considerably according to the extent to which registered rights are guaranteed and the extent to which compensation is paid in the case of loss resulting from registration.
The information role of a registration system cannot be separated from its protection role. Organizations (private insurance companies, property professionals or government agencies) are unlikely to provide coverage against loss if the chance of loss occurring is high, since such actions are not sustainable in the long term. Such organizations attempt to minimize the risk of loss by screening out problem cases. They examine the quality of the information about ownership and parcels and accept responsibility only for cases in which they believe losses are unlikely to occur. This means that the better the information, the easier it is to offer protection in cases of loss. Indemnity funds are traditionally capitalized by charging participants fees or premiums. As a result, these funds (whether state or private) have tended to experience either an embarrassment of riches (few claims paid relative to the charges levied) or an embarrassment of poverty (claims against funds exceed their value).

QUALITY OF INFORMATION

Increasing the quality of information (i.e. making it less ambiguous) allows the level of protection offered by a registration system to be increased. Two issues should be considered in this regard: the extent to which information is screened or examined before it is allowed to enter the system and the extent to which information is managed so that it can be screened quickly and at low cost.

Screening of information

To what extent can registry/cadastral officials screen the information that enters the system? If information entering the system is good, then the system is more likely to be regarded with confidence. Fraudulent, frivolous, incorrect and incomplete applications should be rejected. Screening may take several forms. In many jurisdictions, some screening takes place before applications are even submitted to registries. For example, lawyers may certify the identification of parties and review the proprietor's claim to the property rights, and surveyors may certify the locations and descriptions of the parcels.
Initial screening mechanisms at registries usually address questions of procedure. For example, applications for registration may be examined to check that all the necessary forms have been submitted and the appropriate fees and duties have been paid. Additional screening procedures should address questions of substance, such as how correct is the information on the submitted documentation? Registration should take place only after applications have passed such systematic examinations.
The need to screen information is not limited to transfers, mortgages, leases and the like. In some countries, great political pressure has been exerted on titling agencies to hand out large numbers of titles just before elections. In some such cases, haste and the subversion of accepted practices for political ends have resulted in the issuing of flawed titles; for example agencies are granted more than one title to the same land, and titles contained errors in the identification of owners or land parcels. Such titles, which were not screened by a registry examination process, inspired little confidence in the public.
There is, however, a danger that, when information is examined very precisely, it becomes exceedingly time-consuming, expensive and difficult to register transactions. If high transaction costs discourage heirs and other subsequent owners from seeking formal recognition of transfers, over time the registration system will become outdated and, as a result, the quality of the information will decrease.

Organization of information

Information should be managed in a way that makes it easy for registry/cadastral officials to screen it quickly and at low cost.
The simplest technique for reducing ambiguity is to assign a unique identifier to each parcel. Information on the rights pertaining to each parcel can then be listed against its parcel identifier. Parcel indexing is often associated with title systems, but a number of these systems do not use true parcel-based indexing and, instead, file documents according to title certificate numbers. Parcel indexing is not usually associated with deeds systems, but there is nothing to exclude its use in such systems. Systematic parcel indexing is, in essence, no more than an inventory of the parcels in a jurisdiction. Creating an inventory may be problematic in a registry where records are chaotic, but it simplifies the identification of who holds rights to a parcel. Even in the case of a deeds system, where the register of indexed parcels serves only as evidence and is not conclusive, such systematic organization of records can make it much easier for registry officials to screen applications for registration. For example, when a new application for registration is received, a registry official can quickly determine whether the person listed as the seller on the transfer instrument has registered ownership rights in that parcel. Competing claims for ownership are immediately obvious.
Ambiguity is also reduced when forms and terminology are standardized and simplified. Standardized forms reduce the chance of errors by requiring certain information to be explicitly stated. For example, the layout of a transfer form can make it a simple task to determine whether the property rights are held by one person or by a married couple.
In practical terms, there is no difference between title systems and deeds systems when they comprehensively screen applications for registration through procedural and substantive examinations and manage their information in a manner that makes it easy for officials to screen applications quickly and at low cost (e.g. in a parcel-based system). Both types of systems require a similar quality of information to function well. As title and deeds systems introduce administrative and technical reforms to improve the quality of their information, they start to resemble one another at the operational level, despite any differences in the legal principles that underpin them.

REFORMS IN REGISTRATION SYSTEMS

Innovative trends in registration systems have addressed three areas: reforms to registration systems themselves; improved integration of registration systems with other land administration agencies; and an increasing orientation towards customers.

Registration reforms

Reforms to registration systems have addressed such areas as the conversion to parcel-based systems and the integration of registry records with cadastral survey records (e.g. through the development of property maps showing the relationship of parcels to each other, the use of unique parcel identifiers and the creation of parcel-based recording). Another important initiative has been the development of simplified standard forms for transfers, leases, etc. In addition to simplifying the language and identification of holders of rights, forms refer to the parcel on the property map by its unique identifier rather than by using a long legal description. Other legislative reforms have reduced the number of overriding interests (i.e. rights that do not have to be registered to affect property) and have simplified rules of evidence (i.e. prescription of what evidence can be used to prove a right). Alternative dispute resolution mechanisms (such as administrative tribunals) have been instituted to speed up the settlement of boundary disputes.
Operational processes have been improved by simplifying the procedures for receiving and examining documents. Computerization has played a large role in improving the management of land records and parcel maps. Increasingly, registries are using computers to provide on-line access to property records (e.g. holders of interests and legal descriptions) and references to off-line digital storage for more detailed documentary information.

Integration with other land administration agencies

Registration is not an isolated activity but an integral part of processes that cut across land administration agencies. Improving the performance of a registry or cadastral survey office may make no difference to customers if the overall interagency process remains inefficient. As with a chain of weak links, improving just one link will not make the chain more useful.
Interagency processes may involve a number of agencies, including those responsible for registry, cadastral survey, planning, valuation and revenue, as well as for allocating agricultural and residential land. Governments usually ignore interagency processes because the agencies involved fall under different ministries; coordination requires complicated land administration policies rather than simple ministerial directives. However, members of the public are often well aware of the problems associated with interagency processes as they are forced to travel from one office to another in an attempt to push their papers through the system. Most delays arise at the interfaces between agencies - months can pass while one agency waits for another to respond to a question.
Re-engineering of interagency processes has focused on streamlining the steps in the processes and defining more clearly the roles and responsibilities of individual agencies as well as of interagency committees. For example, interagency groups have been formed specifically to address problem cases. Instead of taking months to resolve problem cases by sending individual documents back and forth between agencies, problems are resolved at weekly meetings of agency representatives.
In some cases, re-engineering has been prompted by the introduction of computers in agencies. Land administration agencies responsible for registration, surveying and mapping, planning, and valuation and taxation use similar data. Rather than duplicate data conversion activities, individual agencies are given primary, or custodial, responsibility for selected data. Other technological advances, such as Global Positioning Systems (GPS) and Geographic Information Systems (GIS), have helped to reduce the cost of providing digital property maps. Sharing digital data has required agencies to develop common data standards (e.g. of data classification, representation, accuracy, structure and transfers) as well as broader policies regarding access and pricing.
Placing agencies in the same location has proved effective for several reasons. Colocation benefits customers since it provides them with "one-stop-shopping", or the opportunity of dealing with all land agencies at one centre. Colocating agencies also tends to improve their coordination - the frequent interaction of personnel makes problem solving easier. It has also allowed agencies to implement the "front office-back office" concept whereby shared staff in the front office receive documents and fees for all agencies and pass documents to each agency's back office for processing. Moreover, colocating agencies provides greater options for re-engineering interagency processes. While the benefits of colocation might appear obvious, it usually does not occur unless a policy has promoted it.

Customer orientation

Registration systems are not ends in themselves. Up-to-date information contained in registration systems is often used to support a wide array of other government functions such as land use planning and land taxation. That information, however, is only kept up-to-date by the individual actions of those who register their transactions. This fact, together with an emphasis on cost-recovery, is placing new emphasis on the users of systems as clients and customers rather than as applicants. Such a business-oriented perspective is encouraging land administrators to get a better understanding of the needs of customers and to assess the degree of satisfaction for services delivered.
Credit-oriented transactions represent the largest single type of registry transaction in many developed countries. Customer-oriented efforts include streamlining mortgage processes and providing on-line access to banks. However, as many studies have shown, giving title - and even registered title - has often had little impact on access to credit in developing countries. This is because creditors typically base their risk assessment on the answers to the following questions:

• Are the borrower's assets sufficient to pay the up-front cost of the loan?
• Is the borrower's income sufficient to repay the interest and principal amount of the loan?
• Does the borrower's credit history reflect a willingness to repay the loan?
• Is the market value of the collateral high enough to cover losses in case the borrower defaults?
• How good is the borrower's claim to the collateral?

A registration system will provide an answer to only one of these questions, and improving the efficiency of a registration system may not significantly reduce the total risk to lenders if the other questions cannot be easily answered. For example, reporting systems on personal credit history are not common in developing countries, so lenders may have to spend time and resources screening each applicant. In addition, people working in the informal sector do not have the regular documented incomes typically required by banks, although many consumer credit companies have been able to develop techniques to screen informally earned income. Nonetheless, registration systems that are efficient can reduce costs to lenders. When no collateral is provided, lenders usually require the borrower to have a cosigner to guarantee the payment; the creditworthiness of both the borrower and the cosigner must be screened. If collateral is provided in the form of registered property, only the borrower has to be investigated. The challenge is to do this in a way that reduces the lender's overall costs of screening.

CONCLUSIONS

It has long been held that land registration systems should be simple, accurate, quick and cheap. In practice, these attributes are not absolute but relative; what is cost-effective in one jurisdiction may not be cost-effective in others. For example, some advocates of the Torrens system argue that the deeds systems of the United States are inefficient. It is true that the United States systems could be made more efficient and that the resulting cost savings could be passed on to those who register transactions. However, it is equally true that these inefficiencies do not significantly restrict transactions in land and credit markets in the United States.
In rich countries, the relative cost of inefficient registration systems is slight. A user of a registration system may have to pay an additional cost which is incurred because registration is not as efficient as it could be, but this cost is small in comparison with property values and loan amounts. In contrast, the same monetary costs incurred because of inefficient registration systems in poor countries might represent a substantial percentage of the value of the land or loan. Many loans in such countries are for small amounts and for short periods since the borrower's income is as much a factor as any collateral offered. If the registration system is inefficient, the costs of registering a mortgage will be high compared with the value of the loan, and delays in registration may result in the loan being repaid before the mortgage is registered.
Because the costs of inefficiency can be relatively higher in poor countries than in rich ones, it would not be appropriate for poor countries merely to replicate the registration systems found in rich countries. Instead, registration systems in poor countries may have to operate more efficiently than their counterparts in richer countries. Fortunately, the costs borne by users of registry systems can be reduced through the introduction of parcel-based systems, re-engineered processes and the appropriate use of computer technology. In order to introduce effective reforms, many agency officials need to acqurire a better understanding of interagency processes and the needs of their customers than they currently have.