The Sri Lankan e register should be governed by a law suitable to Sri Lanka and not by the foreign law called Title Registration as recommended by the MCC
Posted on August 3rd, 2020

A Senior Lawyer –E MAIL

Congratulation to  Ms Shenali Waduge, she has studied the Act 21 of 1998 and explained the legal implications of Title Registration [also called Bim Saviya].  Yes many learned   members of our society  argue that  foreign funding,   foreign laws and technology  should be accepted with gratitude. They believe that once we introduce technology and foreign laws  we will  be on par with developed nations.   Sadly this is akin to seeing a duck smoothly  gliding  along the water without seeing the paddling underneath .

These countries are  where they are,  with e registration as a result of on going legal research,  with 3 decades of legal reform by their learned professors of law.  Sri Lanka has had no such legal reform prior to entering into technology for land registries. Sri Lanka does not have a single legal book on E registration and Property law,  land registration methods and Electronic conveyancing . The subjects are not even thought of being  introduced   into the  legal education programs.  We totally depend on   foreign funding agencies and foreign  advice to change our land policy and land laws.

How long  will it take to introduce a foreign law [Title Registration   Bim Saviya ] to manage the e  register?  In 1998 on the advice of the  World Bank,   without any  notice to lawyers and the public the  Government introduced the  land  law practiced in Australia and New Zealand called Bim Saviya.  The assumption wasthat the land law practiced for over 100 years in  Sri Lanka  could be changed to  Bim Saviya  within a period of 15  years.  A process called ‘ First Registration’ commenced   to change the law of the country. For this process the  government officials without any legal knowledge were appointed to  investigate and adjudicate ownership to 20 Million blocks of land and to  enter the names of owners in a Bim Saviya register. .According to the government reports the process was  a failure, and  only 0.72 Million blocks were  completed for the past 20 years  out of 20 Million blocks of land at a heavy   unaffordable cost to the Government . [ see Performance Report of Commissioner General   2018 report]   

President Mahinda Rajapakse appointed a committee to look into the serious situation created by Bim Saviya.   President Mahinda Rajapakse appointed a committee known as the Samarasekera Committee to look into the serious situation created by Bim Saviya, specifically relating to the adjudication process  of 20 Million owners.

 Committee report  explains as follows —— The Bim Saviya law permits only one owner per block of land .   When the government embarks upon the adjudication process to  investigate  title of persons peacefully in  possession,  it is inevitable  that disputes  will arise amongst those who owned land in  co-ownership and  lived  peacefully in  possession with the application of inheritance laws and personal  laws. Major task is to select one person amongst the co-owners to be registered in the Bim Saviya register. The report points out  that the  imposition of compulsory registration in this manner will create thousands of land disputes which are now dormant.  After 20 years, the  Samarasekera report has been proved correct. The  attempt to adjudicate ownership according  to Bim Saviya had failed  and 1.9 Million disputes are  presently on record says the   Performance Report of Commissioner General.]     

Bim Saviya, a law favourable to Fraudsters .Under the Bim Saviya, once ownership of a property is registered in the e register , the title is ‘indefeasible’ or cannot be challenged. That means once your name is on the title register to a property, you are the legal owner even if you acquired the property through fraud.  The owner has no legal  remedy.  The remedy available is to obtain compensation for the loss from the Government Assurance fund. This is the basic feature of the Australian law called Torrens law / Title registration or Bim Saviya in Sri Lanka.  

E register does not prevent fraud —USA  demonstrated that the  benefit of e registration  is only  speed of registration and that an e register will not prevent fraud.   New York Daily News,  prepared  a bogus deed  to sell the popular  Empire State Building to Nelots Properties and sent to the land registry.  The land registry  upon receipt of the phony documents  registered the deed in 90 minutes . .

Can the Government Pay  compensation to land fraud victims under Bim Saviya law The applicability of Torrens law / Bim Saviya would have permitted  Nelots Properties, LLC. to retain ownership of the building and the Empire State Land Associates  owner of the building would have to be satisfied with compensation  from the Government .   Can the Sri Lanka Government  pay compensation under Bim Saviya to those affected by fraud in lieu of court procedure?  The law is given in the Bim Saviya Act 21 of 1998 in Section 60 

Language in Land registries Section 4.1 of MCC says all documents & communications are to be in English and they will manage    10 registries in 7 districts .  The  administration of land registries in the country are managed in  Sinhala and Tamil.  There are Sinhala and Tamil Notaries who work only in Sinhala and Tamil.  We have a language policy a fare percentage of the country can read and work only in Sinhala and Tamil   Can the computers record  in the local languages or is it English only ?   Can all notaries be provided with computers and internet facilities ?

MCC Recommends Bim Saviya which is unsuitable. Title registration [ Bim Saviya] has been recommended  for the Land Project .  Lands that are to be privatised with the operation of the Land Privatisation Act  to be governed by Title Registration–[MCC Annex 1 – 30, ] The  MCC Land Project to funds  10 land registries in 7 districts to invest  in Bim Saviya for the e register.  [Annex 1 –31 ] However according to Annex 1—21 t the intended beneficiaries for 20 years will be only  five million individuals.   How long can the country wait to enact  a law for the e  register , it can be over 100 years and what would be the cost ?   

E register should be  administered with the Deed registration system and not with Bim Saviya   The manner in which the e register is introduced without considering the law to manage the register  is alarming . Foreign law is considered   without informing the public or allowing lawyers to participate  in the process of change. Government must pay attention to the  statute which  introduced technology  to the country  namely Section 23 of the  Electronic Transaction Act 19 of 2006 which requires deeds .  Section 23 of the Act specifically  requires paper deeds for wills, Power of Attorney  and  land sales [Bim Saviya repeals the deeds]   Registrar  has pointed out that almost all the lands;  8.5 Million blocks will be soon on the e register governed by the deed registration system ,  why convert to Bim Saviya  a foreign law at a heavy cost.  The Registrar General says there is no problem in continuing with the deed system,  according to him  the fraud prevention laws recommended by the Central Bank and the Ministry of Justice are essential to manage the integrity of the e register .  The Government has  recently  enacted the fraud prevention laws under the Trusts (Amendment) Act No. 6 of 2018 for Trust deeds  only , the   law  has   to be extended to all land transactions to prevent fraud.  

Majority of the states in USA are  reluctance to accept Bim Saviya  [Torrens law] to administer the e register.  Their  main concern is  that the  owners do not have the fundamental right to access court when affected by land fraud and land fraud is extremely pervasive in USA. They have a similar law as the deed registration system with modern  laws to prevent fraud

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