{"id":92972,"date":"2019-09-14T23:11:45","date_gmt":"2019-09-15T05:11:45","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=92972"},"modified":"2019-09-14T23:44:05","modified_gmt":"2019-09-15T06:44:05","slug":"sri-lankas-land-rights-bim-saviya-entry-of-technology","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2019\/09\/14\/sri-lankas-land-rights-bim-saviya-entry-of-technology\/","title":{"rendered":"Sri Lanka\u2019s Land Rights: Bim Saviya & entry of Technology"},"content":{"rendered":"\n
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Continuing with the subject of land, one of the most important topics for Sri Lanka and its citizens, the Bim Saviya title registration is the present topic of discussion. How aware are the citizens of this new system, were they involved before its implementation, were they given a chance to raise questions and seek answers and how knowledgeable are the supposed legislators and lawyers enacting these foreign infused land registration systems is what we as citizens should have the right to know and have our questions answered.<\/p>\n\n\n\n

It seems that  there\nis a new established parliamentary procedure to pass statutes. No one knows how\nand when and when laws are passed by parliament. Recently the CB officials said\nit was not possible to carry out an investigation on money transfers of the\nBatticaloa campus under the amended act as it did not even define an offence.\nIsn\u2019t it a grave mistake  amending\nstatutes  in an arbitrary manner, without\nthe knowledge of the officials  in the\ncountry.  <\/p>\n\n\n\n

Another  Good example\nis Bim Saviya, where no one was aware of the   \nintroduction of Australian law[restricting access to court]  and the introduction of the Electronic Land\nInformation System [ LIS] came into operation. These statutes have already come\ninto operation mainly targeted at reaching a higher  positions in the Doing Business Index. The\nresult is that the new systems will be totally incapable of providing the much\nneeded protection to the people<\/p>\n\n\n\n

What is Bimsaviya? <\/strong><\/p>\n\n\n\n

Firstly, this is a foreign land law introduced to Sri Lanka\nby Act 21 of 1998. It is globally referred to as Title Registration. <\/p>\n\n\n\n

This foreign property law practiced in prosperous nations\nfor over 150 years has repealed the existing Common Law and the Roman Dutch law\nwhich was practiced in Sri Lanka for over 100 years. <\/p>\n\n\n\n

Every land statute in the future will have to be subject to\nthe provisions of Act 21 of 1998. <\/p>\n\n\n\n

No one seems to be bothered about the indigenous laws that\nexisted prior to colonial invasion & occupation that lasted over thousands\nof years! <\/p>\n\n\n\n

What is the objective of Bim Saviya\nor Title Registration <\/strong><\/p>\n\n\n\n

1] is to survey all land in Sri Lanka belonging to the State\n(Govt) & private owners according to a new surveying system called\nCadastral system. Estimated blocks of land to be surveyed is said to be\n8.5million.<\/p>\n\n\n\n

2] plans of 8.5 Million blocks will be registered in the\nland registry with owners name  . Each\nblock will have an identification number of 12 digits and the owner will be\nable to view ownership from the computer using the number<\/p>\n\n\n\n

All original deeds will be taken and replaced with one-page\nCertificate of Title with owners name and plan depicted on it. Originals will\nbe destroyed. <\/p>\n\n\n\n

All original deeds will be taken and replaced with one-page\nCertificate of Title with owners name and plan depicted on it. Originals will\nbe of no value but I would strongly recommend the owners to retain the original\ndeeds, extracts and the certified copies of their deeds<\/p>\n\n\n\n

Who decides ownership\nof individual blocks of land after survey is completed?<\/strong><\/p>\n\n\n\n

Under\nthe new system the ownership is to be adjudicated by a Commissioner of Title. A\nnew position that has been created. The Commissioner will re-register owners\nthat are already registered in the old deed register. Quite a lot of scope for\nmischief! Shouldn\u2019t the Courts be doing adjudications? <\/p>\n\n\n\n

Why is the Judiciary\nnot handling adjudication of rights of owners? <\/strong><\/p>\n\n\n\n

Unknown to most the judicial powers has been transferred to a\nnew office \u2013 Commissioner of Title. Why has no one objected? There were\nobjections It is unfortunate that the recommendations made by the Bar\nAssociation and the amendments to the law to prevent fraud made by the Ministry\nof Justice were  not considered by\nparliament, prior to introducing the electronic methods to the land registry, affected\nby fraud and malpractices.  Even the\nlawyers are silent! <\/p>\n\n\n\n

The importance of the Judiciary handling adjudication comes\nbecause the quality of legal documents and books kept to support the rights\n(deed registers) in land registries have deteriorated. The Registrar himself\nsays 50% of the deeds are forged. Therefore, the role of the judiciary is\npivotal for adjudication rather than a Commissioner who may not be knowing\nanything about land rights or land laws! <\/p>\n\n\n\n

What is\nthe most important feature of the Bimsaviya new law that will affect the land\nowner?<\/strong><\/p>\n\n\n\n

First and foremost is that the owner cannot go to court for any\nmatter after obtaining the Bimsaviya deed. For an example if the owners name is\nreplaced by a forged entry the \u2018law of indefeasibility\u2019 will operate. That\nmeans no one can remove the name of a owner not even court of law. So if the\nregister is having a forged owner\u2019s name the court cannot remove the name. This\nis quite serious and demands how far the Govt or lawyers addressed this aspect\nbefore implementing Bimsaviya. <\/p>\n\n\n\n

What\nremedy is available to land owners if justice is denied?<\/strong><\/p>\n\n\n\n

Under the Bimsaviya land title is guaranteed by the Government.\nThe Government according to Act 21 will protect the owners from fraud or\nforgery. This statutory state guarantee of Title is backed by a new insurance\nscheme. An Assurance Fund (TAF) has been established under Section 62 of Act 21\nof 1998 by the then Government. The Fund is supposed to provide compensation to\nowners for any loss suffered as a result of fraud or error in registration. <\/p>\n\n\n\n

We have to wonder whether\nthe architects of this Act purposely created this Fund anticipating acts of\nforgery & fraud and compensating with some for land taken from owner via\nforgery was the reason for introducing this Act. Who actually proposed this Act\nto Sri Lanka? Who drafted the Act \u2013 our lawyers or foreign lawyers?<\/em><\/p>\n\n\n\n

Can the\nGovernment Assurance Fund under Bim Saviya afford to compensate owners for loss\nof land rights in lieu of court intervention?<\/strong><\/p>\n\n\n\n

If colonial statutes were not bad enough \u2013 when new laws that\nreplace these colonial statutes which have provisions favorable to fraudsters\nhow can a Government guarantee protection? How can a Government simply say it\nhas a Fund to compensate and then walk away from the injustice to the land\nowner?<\/p>\n\n\n\n

Bimsaviya is simply a cut & paste from statutes of Australia\n& New Zealand \u2013 while these two countries have large funds in their\nAssurance Funds what does Sri Lanka have?<\/p>\n\n\n\n

The Ministry of Justice did make amendments to the existing law\nto prevent fraud in Bim Saviya but it is now over 9 years and nothing has been\ndone.<\/p>\n\n\n\n

Has this\nlaw been approved by the Attorney General\u2019s Dept who is responsible to assure\nthat statutes do not violate the constitution?<\/strong><\/p>\n\n\n\n

All statutes have to be approved by the AG before\nimplementation. <\/p>\n\n\n\n

Why was\nthe law not contested at the Bill stage?<\/strong><\/p>\n\n\n\n

The Act was introduced in a hurry much like most Bills allowing\nno public discussion. Hardly anyone knew about the revolutionary change\nintroduced to property law. It questions on what basis Parliamentarians who\nvoted in favor of the Bill did so without raising any question or objections.\nIt would be good for Parliamentarians to seek legal advice for important Bills\nin future. By not raising their doubts and simply voting for this new Land Act,\nSri Lanka\u2019s Parliament has put Sri Lankan land owners in a vulnerable\nsituation. <\/p>\n\n\n\n

Are\nthere other countries following Title Registration \u2013 Bim Saviya?<\/strong><\/p>\n\n\n\n

Not surprisingly it is World Bank that is insisting Commonwealth\nCountries to introduce this new law. Prof Tang Hang Wu, Prof of Law, Centre for\nCross-Border Commercial Law in Asia, Singapore wrote a paper on Title\nRegistration titled A aw which favors forgers: Land fraud in two\njurisdictions\u201d<\/p>\n\n\n\n

\nhttps:\/\/ink.library.smu.edu.sg\/sol_research\/2325\/\n<\/div><\/figure>\n\n\n\n

The paper was written following the shocking judgement on Title\nregistration in the highest court of Malaysia. The judges allotted the land in\nfavor of the owner who registered the name with a forged document (this is\nprecisely what can happen in Sri Lanka) <\/p>\n\n\n\n

What\nwill be the situation in Sri Lanka vis a vis its Courts?<\/strong><\/p>\n\n\n\n

A series of judgements from various jurisdictions does not favor\nthe law. The Judges are imposing very strict penalties on conveyancing\nprofessionals who attest documents without identifying owners. Judicial\nprecedence in the latest case in UK gave a drastic decision recently \u2013 the\ncourt ordered solicitors who attended the land transaction to make financial\ncontributions to the owner who lost the land due to forgery (Dreamyar vs\nMishcon de Reya) <\/p>\n\n\n\n

What\nadvice can be given to a buyer under Bim Saviya<\/strong><\/p>\n\n\n\n

Buyers must first investigate who owns the land. The owners name\nis on the computer but is the person who signs & takes the money the real\nowner?<\/p>\n\n\n\n

It is good to take precautions, prove transaction process and\nidentify all parties who participated in taking the money & documents to be\nnotarized. Keep a copy of the original submitted by your notary as the land\nregistry will retain documents only for 10 years (request a copy from your\nnotary) <\/p>\n\n\n\n

Judicial precedence in other jurisdiction have emphased that the\nowners and notaries should be able to produce documents to prove that they used\nmaximum due-diligence to deal with the true owner. Retain the copy of the ID.\nPhoto of the owner, address and phone numbers of the notary who attested the\ndocument & all identifications of brokers and third parties who took part\nin the land transactions. <\/p>\n\n\n\n

Are\ndeeds (especially lease deeds) prepared by notaries (after the lands are\ngoverned by Bim Saviya) valid? <\/strong><\/p>\n\n\n\n

No \u2013 not valid under Section 47 of Act 21<\/p>\n\n\n\n

What\nis the role of the Land Bank Act with Bim Saviya since Bim Saviya is the<\/strong> final conclusion register for lands in Sri Lanka? <\/strong><\/p>\n\n\n\n

Section 73 Act 21 of 1998 \/ Bim Saviya Act is very clear \u2013it does\nnot permit any other land register.   <\/p>\n\n\n\n

Can an owner write a Last will under Bim Saviya<\/strong><\/p>\n\n\n\n

Yes, last wills can be written.  Ownership however\ncannot be granted jointly as the Act 21 of 1998 does not permit coownership.<\/p>\n\n\n\n

What will happen if all deeds are computerised, original deeds are\ndestroyed and computers get hacked and all records eliminated<\/strong><\/p>\n\n\n\n

The Electronic register is already in place known as the Land\nInformation system [ LIS]<\/p>\n\n\n\n

In other countries the law is monitored by Professors of\nlaw. Under the Electronic Transaction Act of Sri Lanka, the Minister of\nLands has the power to continue the process. Even land documents can be signed\nwith electronic signatures one day, which the act has not permitted to\ndate.<\/p>\n\n\n\n

Other nations are very cautious in introducing fully automated\nmethods without the introduction of statutes to preserve the identification of\nowners. The damage that could be done to the property rights of a country was\ndemonstrated by USA reporters —They prepared a electronic land sale document\nfor the Empire State Building with forged signatures sent to the land registry\nThe fictitious sale of the Empire State building took place in 90 minutes.. The\n  land registry did not have the identification laws in place to\nprevent the registration. <\/p>\n\n\n\n

\nhttps:\/\/www.nydailynews.com\/news\/money\/90-minutes-daily-news-steal-empire-state-building-article-1.353477\n<\/div><\/figure>\n\n\n\n

What can Sri Lanka do going forward?<\/strong><\/p>\n\n\n\n

  1. The legal education in the university and the Law College has to\nbe changed to have counsel and academic staff to address the issue of\nunrestricted entry of technology and land statutes drafted by foreigners\n.  <\/li>
  2. If an application is made to court, courts may seriously\nconsider to revert to the deed registration system to operate the\nelectronic register, unless the transaction speed is considered more\nimportant than preventing fraud.<\/li>
  3. People\u2019s lobby groups to demand Parliamentarians be more\nresponsible and accountable for Bills\/Acts re Land in Sri Lanka<\/li><\/ol>\n\n\n\n

    These aspects of land laws are brought to you by lawyers who are\nwell versed and researched in land laws both in Sri Lanka & abroad. If not\nfor a handful of patriotic lawyers we would not be knowing even this much and\nsimply calling ourselves a democratic country is not enough if there is no\ntransparency or involvement of the Citizens in lawmaking. The Nation must thank\nthem for the silent role they play.<\/p>\n\n\n\n

    As things stand the BimSaviya together with the new\ncontroversial land Bills being presented including the Land Privatization Act\nspells dangers for Sri Lanka. <\/p>\n\n\n\n

    The public are asked to raise more questions so that we may find answers and share these amongst the rest of the citizens to become aware of what our Parliamentarians are hiding from us<\/p>\n\n\n\n

    <\/p>\n\n\n\n

    Shenali D Waduge<\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

    Continuing with the subject of land, one of the most important topics for Sri Lanka and its citizens, the Bim Saviya title registration is the present topic of discussion. How aware are the citizens of this new system, were they involved before its implementation, were they given a chance to raise questions and seek answers […]<\/p>\n","protected":false},"author":1498,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[47],"tags":[],"class_list":["post-92972","post","type-post","status-publish","format-standard","hentry","category-shenali-waduge"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/92972","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\/1498"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/comments?post=92972"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/92972\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=92972"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=92972"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=92972"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}