{"id":113490,"date":"2021-04-13T16:07:40","date_gmt":"2021-04-13T23:07:40","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=113490"},"modified":"2021-04-13T16:07:40","modified_gmt":"2021-04-13T23:07:40","slug":"eland-registration-in-sri-lanka-a-pathway-for-the-mother-of-all-scams","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2021\/04\/13\/eland-registration-in-sri-lanka-a-pathway-for-the-mother-of-all-scams\/","title":{"rendered":"eLand Registration in Sri Lanka; A pathway for the mother of all scams?"},"content":{"rendered":"

By Raj Gonsalkorale<\/em><\/span><\/h2>\n\n\n

Glory of\ntechnology is such that no one will object to introducing technology to land\nregistries.  But will the land owners have their rights protected? W<\/em>e only admire the glory of\ntechnology as a duck gliding on water without seeing the paddling underneath. Land\nowners need to be alerted that their ownership rights may not be available\nin the land registry<\/em><\/p>\n\n\n\n

eLand registration will\nsoon be operating the land registration system to secure ownership. However,\nit can be a source of ownership insecurity, without consumer protection\nlaws. The risk involved in the absence of consumer protection laws to\nprotect owners was demonstrated in USA, when New York News Paper prepared\na forged deed to transfer the Empire State Building.   The forged\ndocument was registered in 90 minutes, the land registry had no laws to protect\nowners, therefore did not recognize that 102-story Art Deco skyscraper was being\nsold to a new owner when the information in the deed was laughable:\nOriginal; King Kong\u201d star Fay Wray listed as a witness to the deed\nand the notary\u2019s name was a bank robber\u2019s name Willie Sutton.   https:\/\/www.nydailynews.com\/news\/money\/90-minutes-daily-news-steal-empire-state-building-article-1.353477<\/a>] – Kirthimala Gunasekera,\nSenior Lawyer writing in LankaWeb<\/p>\n\n\n\n

 Ms\nGunasekera goes onto say In modernization and introduction of technology\nto land registries consumer protection law takes a leading role in many\ncountries.  Professors of law have published many books on the\nsubject.  It needs mentioning here that professional practice and\nland registry laws with steadfast and limitless laws and\nrules for identification of owners for consumer protection has\nbeen the reason for the success of eRegisters in Australia, New\nZealand, Singapore and UK. Where the law requires thorough identification\nchecks and strict requirements for witnessing documents before the execution\nof transactions as given in this article. In Sri Lanka attention was not\ngiven   to introduce the international laws that   protect\nowners in an eRegister, even when land fraud is extremely pervasive. However,\nwe are fast moving to introduce technology to land registries\u201d.   <\/p>\n\n\n\n

Unreliable source documents\nthat makes the eRegister unreliable <\/strong><\/p>\n\n\n\n

In Sri Lanka, the problem\nwith registering land electronically is that it is using as source documents\nfrom an unreliable register that commenced in 1864. The registration\nsystem has opted to circumvent due diligence with a quick fix solution scanning\nthe names of owners from an unreliable old register which 1] is a\nnon-compulsory register- where all the ownership rights of land owners are not\nregistered. 2] is torn, mutilated and in a state of disrepair as the\nregister had not been revised since   1864, and above all, it has\nfraudulent entries, according to the Registrar General himself who\nstated publicly that it has 50% forged deeds.<\/p>\n\n\n\n

It defies logic as to why\nthe authenticity of what is in a decrepit register is not being addressed\nbefore transferring a staggering 50% fraudulent ownerships to a new electronic\nregister. The intended process is like converting black money into white and it\ninsults the intelligence of Sri Lankans. It does raise doubts whether there is\nany intelligence left if such a pathway is being created for a mass scale scam.<\/p>\n\n\n\n

Not surprising considering\nthe country has already boasted of several mega fiascos, with the Bond scam,\nthe Sugar fiasco which resulted in a loss of revenue amounting to Rs 15 Billion\nto the country, and the latest drama, the Coconut oil fiasco. In true Yes\nMinister\/Prime Minister style, commissions of enquiry are looking into some of\nthese fiascos, many suspect with well-founded scepticism, that nothing will\ncome out of these enquiries. Perhaps, there might be yet another enquiry to\nlook into this potential scam, but very likely after many would have benefited\nwith ill-gotten gains from fraudulent land transactions. Horses in stables are\nnot foolish enough to stay inside if the doors are kept wide open!<\/p>\n\n\n\n

Owners who have not checked\nthe land registry after they had purchased lands or houses need to check\ntheir ownership status in land registries to be safe.<\/strong><\/p>\n\n\n\n

In this black comedy, the\nRegistrar General in his letter dated 6.04.2016 to the Prime Minister\u2019s office\nconfirms that that the registration of deeds is not compulsory under\nthe law governing registration as the land registry is not the place to\ndetermine ownership. He explained in his letter that the folios of the old\nregister does not give conclusive evidence of ownership and that\nownership to land under the present law has to be determined by examining the\ndeeds of owners.<\/p>\n\n\n\n

The World Bank examining and\nresearching the land laws of Sri Lanka, considering that Sri Lanka does not\nhave a permanent research group as in other nations, was aware that Sri Lanka\ndid not have a reliable register to introduce the eRegister.  A Grant\nin the amount of SDR 3.9 million (US$ 5.0 million equivalent) was given to the\ngovernment of Sri Lanka for a land titling and related services project march\n22, 2007. http:\/\/documents1.worldbank.org\/curated\/en\/293851468308634964\/pdf\/ICR0000190.pdf<\/a>.  <\/p>\n\n\n\n

Bim Saviya land registration\nsystem, legislated in 1998 at the behest of the World Bank, and without\nconsultation with Sri Lankan lawyers, and introduced in 2007, has been a\ncomplete failure. The Government Title Commissioners Report for 2019 states\nthat it will take over 100 years to complete the register.   (<\/em>https:\/\/www.parliament.lk\/uploads\/documents\/paperspresented\/performance-report-land-title-settlement-department-2019.pdf<\/em><\/a>].<\/em> <\/p>\n\n\n\n

The Bim Saviya is unsuitable\nfor Sri Lanka as the owners\u2019 right to access court if the lands are affected by\nforgery or fraud have been taken away by this law. In lieu Government has\nagreed to compensate owners from an Assurance Fund<\/p>\n\n\n\n

Can lawyers help? No they\nare helpless <\/strong><\/p>\n\n\n\n

A case in point is a\ncolleague of a lawyer who was arranging to sell her land and had been told\nby the lawyer that her ownership is not recorded in the land registry and\nher land is not marketable. She reached out to the officials to see whether Bim\nSaviya could help, and she had been told that it may be possible but it will\ntake over one year to do so. Even lawyers have found that they are helpless,\nthe land ownership had been misplaced, and the land registry had\ninformed in writing that folios were damaged. The effect of this is that\nonly land deeds where folios are not damaged will be included in the eRegister.\nThis, along with the Registrar Generals contention that s much as 50% of deeds\ncould be fraudulent means that what would be transferred to the eRegsiter are\nmostly fraudulent deeds.  <\/p>\n\n\n\n

If the\nRegistrar is not responsible to owners, is it worth registering land?<\/strong><\/p>\n\n\n\n

 In Sri\nLanka the Registrar is not responsible and has no authority other than to\nregister deeds in the existing decrepit register irrespective of whether they\nare valid or invalid deeds. The present law is that the Registrar is not\nresponsible for the validity of deeds that are registered as per Section 7 of\nthe Registration of Documents Ordinance. For that matter even if a fraudster\ndeclares he is the owner with a notarised deed called a Deed of Declaration,\nthe Registrar will register the deed of declaration to displace the true owner,\nwho had paid good money for the land. The Registrar cannot be sued for\nregistering fraudulent deeds to displace owners as in other nations. Yes,\nwe only admire the glory of technology as a duck gliding on water without\nseeing the paddling underneath.  <\/p>\n\n\n\n

It needs to be\nmentioned here that all countries where the eRegister is a success has\nenacted consumer protection laws [In Australia, New Zeeland, Singapore and\nUK].  The Registrars have quasi-judicial powers to check owners\u2019 identity\nbefore removing and replacing owners in the eRegister, and the\nRegistrar has the full power and authority to reject forged invalid deeds.<\/p>\n\n\n\n

 Prior to\nproceeding with this easy ladder to furthering land fraud, steps have to be\ntaken to ascertain the true status of the existing register and a team of\nlawyers must be appointed to advise the Task Force that is in\ncharge to bring in consumer protection law recognised internationally in\norder to protect land owners and buyers from fraud. <\/p>\n\n\n\n

The Minister of\nJustice is urged to direct the Task Force responsible for introducing the eRegister\nto immediately make a public announcement at least  to alert owners to\nlook into their rights in the   existing register, and make sure\ntheir rights are  included in the old register.   <\/p>\n\n\n\n

A public\nannouncement is necessary as the eRegister <\/strong><\/p>\n\n\n\n

1] Will exclude\nowners who have unregistered   ownership deeds, gifts, life interest,\nlease hold interest, servitudes, Agreements to sell etc.<\/p>\n\n\n\n

2] Will exclude\nthose who have their extracts damaged    A public announcement\nis essential for owners to immediately make their application under\nthe Ordinance 18 of 1945 to reconstruct the damaged mutilated folios.\n  The Registrar   has power   under the\n  Ordinance 18 of 1945 to prepare and reconstruct the folios\nto re instate the names of owners.<\/p>\n\n\n\n

3] Will include\nfraudulent owners in lieu of the true owners. As owners believe that deeds in\ntheir possession will protect their rights and be automatically get registered\nin the e register.   <\/p>\n\n\n\n

This is an\nessential pre requisite in order to ensure that the source material that is to\nbe used in the eRegister is authentic, and the rights of land owners is\nprotected.  <\/p>\n\n\n\n

Technology\nmust protect owners   from land fraud and it should not advantage\nfraudsters. <\/strong><\/p>\n\n\n\n

ICTA [\nInformation Communication Technology Agency] and the Government Task force\nresponsible for the eRegister need to look into this serious matter as\ntechnology should be installed to protect owners, not fraudsters. Assessment of\nfraud and strenuous research for legal solutions to prevent fraud had been the\npriority in all countries, before introducing an eRegister. Ms Gunasekera\nin her article had mentioned them. Sri Lanka should make use of their\nresearch as owners require protection not mere speed of registration which will\nbe beneficial to fraudsters as shown in the demonstration by USA <\/p>\n\n\n\n

It is time that\nthe Minister of Justice took the leadership <\/p>\n\n\n\n

  1. To preserve the Section 23\nof the Electronic Transaction Act 19 of 2006 which states that the Act 19 does\nnot apply to land transactions and a valid paper deed is essential to own land,\nespecially when there are no laws to protect owners in a registry, a paper deed\nbecomes essential and <\/li>
  2. To repeal the divine\nloophole available for fraudsters in the Bim Saviya law given in Section 33, which\nstates that the eRegister is conclusive evidence of ownership that cannot be\nquestioned in a court of law. This takes away the fundamental right of an owner\nto obtain redress from court when affected by fraud, in other words give up their\nrights to the fraudulent owner.  <\/li><\/ol>\n\n\n\n

    It is sound\nadvice for the Minister of Justice, in the arena of land law and land\nregistration, to emulate Dutch philosopher Desiderius Erasmus, who in 1500\ncoined the phrase prevention is better than cure\u201d, and take firm, affirmative\naction to prevent what could become a massive scam, and besides that, an\nunprecedented human rights violation. <\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

    By Raj Gonsalkorale Glory of technology is such that no one will object to introducing technology to land registries.  But will the land owners have their rights protected? We only admire the glory of technology as a duck gliding on water without seeing the paddling underneath. Land owners need to be alerted that their ownership rights may […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":true,"template":"","format":"standard","meta":{"footnotes":""},"categories":[172],"tags":[],"class_list":["post-113490","post","type-post","status-publish","format-standard","hentry","category-raj-gonsalkorale"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/113490","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/comments?post=113490"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/113490\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=113490"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=113490"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=113490"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}