The procedure to be?followed when applying for a declaration of ownership of property and a certificate of title is to be found in Section 4 of the Land (Title Proceedings) Act, 2011.
The application must be accompanied by an affidavit in which the claimant must list the encumbrances affecting the property, indicate what documents of title to property he has and set out the facts on which the claim of ownership of the property is based.
Additionally, the claimant must disclose the names of the people who occupy households on the property and the person who appears on the records of the Land Tax department as the owner of the property.
Section 4 requires the claimant in addition to the affidavit in support to file evidence of title. Section 5 gives guidance as to the evidence that is required.
The circumstances of the case will dictate what evidence will be required in a given case.
The evidence will from time to time include the following:
(a) all documents of title including copies and other evidence of title in the possession or custody or control of the claimant;
(b) certified copies of the recorded documents not in the possession or custody or under the control of the claimant which provide any evidence of title;
(c) an abstract of the title of the claimant signed by an attorney-at-law and deducing title for a period of 20 years or for so much of that period as is possible together with a written statement by an attorney-at-law setting forth the result of all relevant or requisite searches;
(d) a concise statement, signed by the claimant, of facts that support the title but are not established by the documents produced pursuant to paragraph
(a) or (b) as the case may be, or other documents supporting the claim;
(e) evidence by affidavit or otherwise supporting any facts referred to in paragraph (d) and, where the claimant relies on possession or enjoyment under the Limitation of Actions Act or the Limitation and Prescription Act, as the case may be, affidavits by at least two persons as to that possession or enjoyment;
(f) where an attorney-at-law has prepared a written opinion relating to the title and the opinion is in the possession or custody or under the control of the claimant, a copy of the opinion;
(g) an affidavit by some person other than the claimant who can swear positively to the facts verifying the claim and all document so than affidavits and exhibits thereto supporting the claim.”
Section 5 says the evidence of title must include “such of the following as are applicable to the in the circumstances.”
Ultimately, it will be for the court to determine whether the facts disclosed are sufficient to enable it to make a declaration.
It seems quite clear that all of the documents listed at section 5 will not be required in all cases. It is submitted that provided the facts disclosed are sufficient to satisfy the court that the claimant has a right to ownership, the claimant will not be required to provide other evidence.
For example, in some cases there will be no documents of title in the possession or custody of the claimant, nor will there be any recorded documents as evidence of title.
In such cases, the claimant may be relying on his possession and enjoyment of land over a period of time and may therefore need to have at least two people swear an affidavit as to that possession and enjoyment of the land.
A plan must be filed with the application. That plan must be not more than ten years old prior to the presentation of the claim unless leave of the court is obtained to accept an older plan.
A claimant must also file an affidavit disclosing all adverse claims which have been made or that can potentially be made with respect to the land, which are within his knowledge.
The affidavit must, among other things, also state that to the best of his knowledge information and belief full disclosure has been made to the court of all matters relevant to the declaration of ownership and the certificate of title signed by the claimant.
As you can see from the above, a claimant will, as far as possible, be expected to produce to the court all information that can establish his title along with anything that can cast doubt or be a challenge to his title. There is ,therefore, a duty on a claimant to make full and frank disclosure to the court.
Next week. I will end this brief review of the Land (Title Proceedings) Act, 2011 by considering some other provisions of the legislation.