The Land (Title Proceedings) Act, 2011 which came into force on March 10 is a very important piece of legislation.
The main focus is the reform of the procedure used to obtain a good and marketable title by those who assert ownership of land but do not have the documentary evidence to show their title to land.
A significant change to the law brought about by the act is the enlargement of the categories of people who can have their deeds restored under the Land (Title Deeds Restoration) Act Cap. 228C.
In addition to people whose deeds have been destroyed by disaster that act now applies to deeds that have been “lost or stolen.”
The word “lost” has been defined to mean “in relation to title deeds, lost by the fee simple owner of the relevant property whether by misplacement by the owner himself or through misplacement, concealment or unreasonable withholding by another”.
The effect of this amendment is that where deeds are lost by the owner or by an attorney-at-law or by a lending institution the procedure outlined in the Land (Title Deeds Restoration) Act may be invoked.
Prior to the Land (Title Proceedings) Act, 2011, a person who did not have title deeds could have their title regularised by a legal fiction referred to variously as a “foreclosure suit” or a “title suit” or “passing the title through the court”.
What would normally happen was that a mortgage would be created in favour of the claimant’s attorney-at-law or his clerk or some other employee as security for a loan. The claimant would then be said to have defaulted on the loan and a writ would be filed claiming among other things, an order for sale of the property by the High Court.
The court would then order the sale of the property and the claimant would purchase the property and the Registrar would execute a conveyance in favour of the purchaser.
As part of the fiction, the purchaser’s attorney-at-law would write a cheque in favour of the Registrar of the Supreme Court for the purchaser/claimant’s attorney-at-law.
This entire process was a legal fiction designed to confer title on people whom it was felt were entitled to property but had no title deeds to establish their title. It was felt that the procedure, on occasion, resulted in people obtaining title to land that that they did not truly “own”.
The Land (Title Proceedings) Act, 2011 was passed to initiate a more transparent method of conferring title and to eliminate the fictitious elements of the process.
Section 3 of the Act sets out the situation which permits an application to be made.
It permits a person who is: (a) in possession of documents of title that do not establish a good and marketable title, or (b) is not in possession of documents of title but claims ownership of the estate or interest by virtue of inheritance, devise, purchase, adverse possession, presumption or otherwise to apply to the High Court for a declaration in respect of ownership of the property and a certificate of title in respect of the same.
Section 3 of the Act also makes it clear that it does not apply to a person whose title deeds were destroyed within the meaning of the Land (Title Deeds Restoration) Act.
In next week’s article, I will look at the new procedure as outlined in the Land (Title Proceedings) Act, 2011.