Chapter 1

1. Introduction
1.1 Land Registration Systems

Land Registration is “the process of recording legally recognized interests in land. 1”

These interests include but not limited to; ownership, access, inheritance, occupation and
use. Interests also include; Rights, Restrictions and Responsibilities. The key data that are
usually considered as major components of a good land registration system are; title
number, the land reference number, location and ownership. A good land registration
should therefore contain and safeguard these components, and regularly updated the same
with a high degree of accuracy and reliability. 2 In addition, it has been observed by
various researchers that a good land registration system should have benefits to the
society at large.

Wallace and Williams [2006] have further observed that land registration provides the
framework information about people’s interest in land. The framework underpins the
legal construction of property rights, the social meaning of land ownership and the
economic opportunities essential in a vibrant, multi-sectoral land market. The integrity of
the relationship between the recording of ownership and the abstract socio/legal
arrangements protected by the recording, form the foundation for leveraging simple land
markets into complex commodity trading, which in turn accelerates wealth of a nation.

The legal status of a land register is closely hinted to the manner in which a transaction is
confirmed and documented. According to Zevenbergen [2006], the main problem in land
registration is the best means of transferring the rights, because it is not possible to
transfer the immovable goods such as trees, land and buildings. A question therefore
arises on the manner of transfer transaction is confirmed and documented. With the

1
Zevenbergen Jacob. (2002) Systems of Land Registration – Aspects and Effects, 27
2
Ibid. 44

1
development of societies, different transaction evidence has evolved and these can be
presented as indicated below.

1.1.1 Case 1 Symbolic Transfer

If the need to transfer rights has developed in a paperless and closely knit society,
transactions are based on oral agreements, which are completed by symbolic acts
replacing the handing over that usually complete the transfer of a moveable good. This is
normally done by handing over a small symbol, which has been taken from the
immovable good e.g. twig, soil etc. In such circumstances, the community is usually
called upon to witness the transaction or verbally confirming the contract. This method
works well as long as the community remains closely knit, and transfers are infrequent.
The system becomes problematic when a community gets larger (or mixed) and when
memories grow dim. This method is common in Africa under the customary tenure. It
was also practiced among the Jews as presented in the Book of Ruth when Boaz inherited
Ruth (the Moabite) and land with witnesses.

1.1.2 Case 2 Introduction of writing

In societies in which writing becomes more usually start to use paper to “witness” the
transfer of land. When writing is still done only by a small section of the society, the
illiterate parties might go in front of a judge, and declare the transfer of land from one
person to another. The courts keep records of their activities, and so the transfer is
witnessed in writing and at a later date, one can retrace that this transfer took place. In
other societies specialized “writers” (called notaries in much of continental Europe and
Latin America) would make a document witnessing the transfer.

1.1.3 Case 3 Private Conveyances

The documents witnessing transfer are called deeds. Traditionally, these deeds were left
in the hands of the “new owner” and were handed over to the next “new” owner over and
over again. After several transfers, a whole stack of transfers were handed over to the
next new owner and after a while, legal professionals have to check all these documents

2
before the next transfer can be made. This system is called private conveyancing and has
several risks.

The idea behind the private conveyancing with deeds is that the seller proves his or her
right by being in possession of the previous documents that were drawn up on previous
transfers. The system generally assumes that the first owner was generally accepted as
such at some point through a grant from the government or nobility. A buyer in this case
will be satisfied when the seller can show him or her correct documents transferring the
rights from owner to owner since the first owner.

In reality, the transactions are traceable for a set period related to the legal prescription
e.g. 30 to 40 years. The risks involved with the deeds systems are many. For example:
(1) An ignorant and malicious person may get hold of the documents.
(2) The documents might be destroyed and it becomes very difficult to prove
ownership and the rights to the land become weak and difficult to transfer.
(3) Someone may steal the documents from an owner. That owner can no longer
transfer the land in an orderly manner even worse, if the thief falsifies the
documents, suggesting a transfer to himself / herself, they can sell the land
fraudulently to an innocent third party.
(4) If the owner duplicates the deed documents by preparing a falsified second
set, it would be possible to sell the same piece of land to two people.
(5) Another problem is when an owner wants to subdivide the land, since there is
only one set of documents.
(6) Under the deeds registration, there is no map attached (in most cases) and it is
difficult to identify the land to which the deeds are attached.
(7) The system also does not work well with a multi layered cadastre in which
several people hold different rights over the same price of land.

1.1.4 Case 3 Continued Registrations of Deeds

Instead of leaving the deeds documents in the hands of an ignorant or malicious person,
their storage could be entrusted with an independent party who would limit the chances

3
of loss or damage. Such registers of documents have been set up in many different
countries and at different places e.g. with lawyers or Notaries, a court, a Tax Authority, a
local Authority or an office especially established to store such documents. Registration
of deeds does not provide government guarantee to the registered rights

When this is limited to an elementary register, it constitutes the simplest form of

registration of deeds. This system has the following problems:
(i) It was not compulsory many cases to register the deed, although usually a
Registered deed would get precedence over non-registered deed or a deed
registered late, which affect the same land.
(ii) These were usually no uniform system for identification of properties as
there were no maps attached. The description of the land was left to the
parties of the deeds.
(iii) The original register was arranged according to the deposition dates,
which made it difficult to search the register to establish if the seller had a
good title.

Enhancements
In order to improve on the above problems, several methods have been developed. For
example the problem of non-registration of a deed could be solved by making all the
deeds registration compulsory. These rules have however not been sufficiently effective,
because of the limited power to implement and control the law. The second problem of
identification of land was tackled by introducing an unambiguous identification of the
subject unit of land (prior to registration) often on a map with a unique number.

To solve the third problem, indexing to the main register was introduced. The first
indexes were person based i.e. guarantor/ guarantee indexes which still form the basis of
many deeds registration in the USA counties. The simplest method is keeping a list of all
documents mentioning the names of both parties i.e. the guarantor and the guarantee
index. However, available literature indicate that it is not easy (even with the indexing) to
trace back the right documents. Since the rights, owner, and usage may change under the

4
deeds registration system, but the land remains unaffected, the land parcel is an ideal
method for recording information.

A better way of tracing back the documents is a system in which a parcel-based index is
kept. A list (or cards) of the identified pieces of land (properties) is kept, and the name of
the owner is kept connected to each of the parcels. This name is up-dated after every
transfer, with a reference to the document concerned. This can be demonstrated by a
simple diagram below. Basically, this constitutes a simplified form of most title
registration systems (e.g. in Germany and Kenya) as well as parcel-based deeds
registration system (e.g. old Scotland). In some of the countries, parts of the contents of
the deeds are copied onto the register, instead of only referring to the place where the
deed can be found (e.g. Spain)

Means of transaction Evidence

Oral agreement Witnesses

1.

Private Deed No.

2. Conveyance Registration

Deeds Registration
Registration No. Guarantee
3.

Title Registration
4. Registration Proof of Title

Fig. 1.0 Types of transaction evidence

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1.1 5 Deeds and Title Registration Systems
Enemark [2005] observed that currently, there are only two forms of land registration
internationally. These are the deeds registration and title registration. The Deeds system
is basically a register of land owners and focuses on “who owns what” while the title
registration system is a register of properties presenting ‘what is owned by whom.” The
system operating in a country depends on whether a country is based on Roman Law
(Deeds System) or Germanic or English Common Law system (Title System), and the
history of colonization.

Deeds registration is rooted in the Roman culture and is, therefore, common in Latin
cultures in Europe (e.g. France, Spain, Italy, and the Benelux), in Latin America, and in
parts of Asia and Africa which were influence by the Romanic Law. The system is also
used in most parts of the USA and French Canada [Zweigert and Kotz, 1998]. The Deeds
System of registration is found in different forms, where the role of the cadastral
identification as well as the role of the surveyors varies significantly [Enemark, 2005].

Under Deeds Registration a copy of the transfer document is deposited in a deeds

registry. An entry in the registry then provides evidence of the vendor’s right to sell. In
parts of the USA, private registers are operated by insurance companies that underwrite
any losses that may arise through defects in the title. This is known as title insurance and
under this system; the purchaser pays a premium to obtain the necessary guarantee. If
fraud takes place and a purchaser of land finds that the title is invalid, the insurance
company pays the compensation. The system does not however support general land
management.

In countries where there is a national Deeds Registration System, the Registry is under
the control of the state. A copy of all transactions that affect the ownership and
procession of the land must be registered at the Registry offices and one copy of all
documents is retained. Each document will normally have been checked by a notary or an
authorized lawyer and its validity ascertained. As a result, by searching the register for
the most recent documents of transfer (or recent transactions) any would be purchaser

6
would feel confident that the vendor has the right to sell. Inspection of the register would
show how the vendor obtained the property and the conditions under which it was
acquired. This search in the register however does not provide any proof that the previous
transactions on the property were legitimate. It therefore becomes necessary that previous
transactions on the property should be inspected. This involves a long series of
inspections which may span many years until the purchaser is confident that there is a
clear chain of title.

An ideal system would reflect perfectly the legal position of the title on the ground
through a well georeferenced cadastral survey (the mirror principle), draw a curtain
over all previous dealings so that only the present entries on the register need to be
confirmed (the curtain principle), and guarantee the accuracy of what is shown on the
register (the insurance principle), It is difficult for a deeds registration system to
conform with all these principles. On its own, the system gives no guarantee of title; it
merely provides access to the history of transfers, some of which in practice may be
missing depending on the history of the system. Sometimes disasters occur like during
the World Wars when many records were destroyed.

Another major objection to Deeds Registration System is that it leads to the storage of
vast quantities of ancient documents, creating what has been referred to as a “Mausoleum
of parchment.” Not only is this costly, but the retrieval data can be difficult and
cumbersome, depending on the volumes of documents stored. With computers however,
it is now possible to store and retrieve rapidly a large amounts of data, although
conversion of old documents into digital form is potentially expensive, the costs are
however much less than what was incurred in the past. By applying modern technology,
such as scanning and microfilming of documents, and by adoping appropriate
administrative infrastructure, deeds registration can now offer an efficient and reliable
land registration system.

In some deeds registration systems, the management of the records is extremely efficient
and as a result, there is great confidence in the system (e.g., in the Netherlands). While

7
such registries do not guarantee title, they provide the most important evidence of
ownership that can be assumed to be correct unless proved otherwise in the courts. In
many countries around the world, the deeds registration systems are are not in this
category and documents are in poor physical state, difficult to retrieve, and even more
difficult to link with into a chain of titles tracing the pattern of ownership over the years.

Title Registration System

The alternative to the registration of documents is the Registration of Titles to land. In
this system, each land parcel is defined on a map and the rights associated therein are
recorded in the register. In addition, the name of the owner is recorded. When the whole
of the land is subject to transfer, only the name of the owner needs to be changed. When
parts of the land are transferred, the plans must be amended and new documents issued.
Although a copy of the certificate of title, for each land parcel, is held by the landowner
or by the mortgagee/chargee, in the case of land that has been used as a collateral, the
definitive record is the one held by the title registry.Under such a system, the ownership
of land can be guaranteed. Anyone

Title registration has its origin in the German culture and is found in the Central
European countries (Germany, Austria and Switzerland). Different versions of the
German system are found in the Eastern European and Nordic countries. The versions
relate to the use of the property concept and the organizations of the cadastral processes.
A special version of the title is found in the Britain where the concept of general d new
boundaries is used to identify land parcels on large scale topographical maps. The
Germanic Title Registration System has its roots in the 18 th Century Theresian cadastre in
the Austro-Hungarian Empire. Named after the Empress Maria-Theresa, the cadastre
became the basis for the modern day German ‘Grundbuch’ system upon which the Title
System is developed [Steudler, 2004].

Title registration is found in a third variant: the Torrens system. The system was
developed and introduced first time in Southern Australia in 1858 by Sir Roberts Torrens

8
of Northern Ireland. Later the system was introduced in other Australian states such as:
Queensland (1861), New South Wales, Tasmania and Victoria (1874). The system was
subsequently introduced into many other British colonies in the late 19 th and early 20th
Century. The main feature of the Torrens system is that the land parcel in question is
identified on a map attached to the certificate of title. The certificate of title on the other
hand, gives the details of ownership as well as description of the land, with appropriate
references to the easements, encumbrances, and conditions to be fulfilled by the title.

In Africa, Latin America and Asia, there are often mixed and incomplete registration
systems. In Africa particularly, traditional land rights are still prevalent and are
recognized under the customary land tenure system. Other traditional land rights are the
indigenous land rights related to the indigenous people in America, Canada, Australia,
Africa and New Zealand. These rights cannot be recorded according to the Western
judicial systems due to the cultural and intrinsic nature of the rights. Currently, a lot of
research is underway to develop spatial models for mapping and recording indigenous
land rights in different parts of the world [Brazonor et al., 1999].

In Kenya, land registration system comprises of two main methods: the deeds registration
and title registration. The deeds registration system was the earliest form of registration
introduced by the British Colonial government towards the end of the 19 th Century. The
system is governed by the Registration of Documents Act (RDA), Cap 285 of 1901, the
Land Titles Act, Cap 282 of 1908, and the Government Lands Act, Cap 280 of 1915.
Title registration is governed by the Registration of Titles Act (RTA), Cap 281 of 1919,
and the Registered Lands Act (RLA) Cap 300 of 1963. More recently, in 1987, the
Sectional Prosperities Act No21 was enacted to provide ways and means of registering
sectional properties including flats.

Today, many countries in the West have moved from the Deeds registration system to
Title registration system through the adoption of the Torrens system and fixed boundary
system. These countries include Sweden, Denmark, Netherlands, Germany, Canada,

9
USA, Australia and New Zealand among others. In majority of the countries, land
registries have been modified to include coded building information and utilities.

In Sweden, for instance, the automation system has proceeded to the level where land
information have been integrated into a Land Data Bank System (LDBS), which collects
and transforms selected cadastral and land registry information into automatic data
processing tool. The Land Data Bank System is a centralized system to which offices
from around the whole country are connected, both for up-dating and information
retrieval. At the moment, all the 21 District offices and all the municipalities in Sweden
are connected to this system. The main users of the LDBS are those involved in real
estate transactions such as banks, real estate agents, property companies, and insurance
companies [Steudler, 2004: 122].

What is emerging is that while developed countries have generally adopted the Title
Registration System, in Africa, the majority of the countries are still operating in the
customary land ownership and Deeds Registration System. No country in Africa today
can claim a complete overhaul of the registration system into Title system. A few
countries have embarked on the process of modernizing their land registration systems in
line with the internationally recognized benchmarks. South Africa, for example, has
established a fully digitised Title registration system, even though its coverage is skewed
towards the areas formerly occupied by the European community.

Rwanda is in the process of developing the Land Centre [Ruramgwa, 2004] which will
contain a national reference collection and a catalogue of land information. Botswana has
embarked on digitization of land records and development of a National Spatial
Infrastructure with the aim of eventually launching a digitised Title Registry [Morebodi,
2001]. Zambia recently completed digitization of land records within the city of Lusaka
with the help of Swedish International Development Agency (SIDA). The other countries
that are in the process of converting into Title Registration system are: Namibia, Lesotho,
Ghana, Nigeria and Uganda.

10
Kenya, like many African countries, still lacks a centralized Real Property Register, a fact
that has contributed to several problems in the administration of land in the country. The
existing Registration system contains cadastral information in the offices of the Director
of Survey while the land information is in the office of the Commissioner of Lands.
Additionally, the registration system is based on several multiple legislations which cause
confusion to the ordinary land owners in Kenya. The registration system is largely
oriented towards internal tax collection rather than addressing modern economic
challenges of globalization, technological changes, sustainable development and
environmental conservation

Source: Jaap Zevenbergen, Delft University, the Netherlands

Deeds Registration Title Registration

Person
Parcel

Right Right

Parcel Person

Under the Deeds System

The person represented an individual or a group of people who are the rightful claimants
and gives the answer to the question “who owns what”. The parcel represents a certain
part of land that is seen as a property and gives answer to the question “where” and “how
much”. The right or title represents a certain legal relation question of (ownership,

11
leasehold or other form of Tenure) e.g. Public Tenure, Private Tenure
(leasehold/Freehold), informal Tenure, etc. The three main components of land
registration system are the adjudication (or determination) of land rights, the transfer and
mutation (subdivision or consolidation).

Jasper M. Paasch, Gaϋle Sweden

There are three main types of rights that can be considered.

Person Person Person

Subject

Right Right /Obligation Ownership Right

Object Land Area Land Area Land Area

1 2 3

Case No.1
In life, there rarely exists any direct connection between subject (person) and object
(land). The connector is usually through some form of right. In Fig. 1 above, is
extremely rare except in cases concerning the sea where there are no rates to govern
appropriation, stocks of fish can be depleted faster than they can be replenished.
Also in common grazing grounds where there are no rules governing the use of the land,
the grazing grounds can be over exploited therefore the case 1 of open access is not
recommended.

Case No.2

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To create a balance between rights of use and quantity of resource to be extracted, rules
(laws) should be imposed on the use of the resource depending on the institutional
arrangements and the political conditions of the country. This case is usually connected
with land of low value or areas under customary rights where there are only obligation
governing the access to land but not right of ownership.

Case No.3
It is dominant in the legal systems where land is private through ownership rights (also
limited access) but governed by written laws. This third relationship is what we normally
call real property, parcel, and freehold.

Historical Development of Land Registration Systems

Initially, there were two basic reasons for records regarding land: the need for the private
vendee of land to get publicity for him acquisition of land and the need for the state to
know all land units liable for taxation or other services, dues and fees.

In the early human civilization, there was always a need for publicity of transfer of land.
Land cannot literally be handed over in a secret manner. It had to be officially known
and proclaimed that there were no known hindrances to the transfer of ownership rights
in the land. Even in the Bible, we read of Prophet Jeremiah’s involvement in the
purchase of land

Jeremiah 32:9
I bought the field from my cousin Hanamel of Anathoth and paid him the price;
seventeen silver shekels. I drew up the deed and sealed it, called in witnesses and
weighted out the money on scales. I then took the sealed deed of purchase and its open
copy in accordance with the requirements of the law and handed over the deed of
purchase to Baruch. Jeremiah gave the sealed and unsealed deeds of purchase to Baruch
to keep in a clay jar so that the documents may last long time. Baruch was his faithful

13
secretary. Jeremiah’s prophetic Ministry started in 626 B.C. and ended sometimes in
586B.C.

See also Genesis 23: 1 – 20, where Abraham also bought land at Machpelah in Canaan
from Ephron, to bury his wife Sarah. Abraham paid out 400 shekels of silver, which was
rather exorbitant. In the book of Deuteronomy 27: 17; the issue of land is mentioned in
terms of the respect on boundaries. The Lord God clearly stated that cursed be the man
who moves his neighbor’s boundary stone. Similar proceedings are found in Assyrian
Babylonian and Egyptian sources. There had to be publicity; the transfer of land had to
take place in the presence of witnesses in order to gain validity.

There are early evidence of land documentation for taxation and other contributions to
the state. For example, in early Mesopotamia (4000BC), Egypt (3000BC), China
(700AD), and Southern India (1000AD) land was already a major source of state income
from taxation [Ting, 2004]. A similar situation obtained in Western Europe as early as the
7th Century AD, where land was already divided into three distinct categories: (1) areas
which adopted Roman customs and traditions, (2) areas occupied by the Franks, Frisians,
Saxons and Scandinavians, and (3) areas in Northern Germany where landlords had vast
estates made of peasant villages.

The management of such land and resources, while being central to most societies, was
varied in approaches and systems. In England and Wales for example, the Saxon Kings
already had feudal powers on land while in the Germanic kingdoms, private property was
customary. Gradually, land in Germany came under powerful landlords and by the time
of Emperor Charlemagne3 (800-814AD), all land in Europe was clearly headed towards
feudalism [Zweigert and Kotz, 1998].

3
Emperor Charlemagne became King of all of Western Europe by 800AD. He ruled, France, Switzerland,
Belgium and the Netherlands; half of present day Germany, Italy and parts of Austria and Spain. By
establishing a central Government over Western Europe, Charlemagne paved the way for modern
development in Europe.

14
The Norman4 conquest of England in 1066 AD entrenched the feudal system in Europe
while the Magna Carta5 (1215 AD) was the first revolutionary step towards the
establishment of private land ownership [Powelson, 1988]. The Industrial revolution of
the 17th and 18th centuries accelerated the development of the individual land tenure
system and introduced significant land management changes. These included the
enclosure movement of the 1700s across Europe and the United Kingdom, which
consolidated the tiny, inefficient parcels of feudal land into larger, more productive plots
[Ting, 2004].

Around 5000 B.C. in the Babylonian society, land ownership was already being recorded
on clay tablets complete with the signature of a surveyor. In Egypt as early as 300 B.C.,
there is a mention of land records kept in the royal registry. The records were based on
survey of land by the rope stretchers. In strongly centralized countries like Egypt, it was
vitally important for the rulers to keep track of land holdings and claims on the land.

Romans also surveyed the territories they conquered and levied taxes. Infact Emperor
Diocletian’s ordered extensive surveys of the Roman Empire during the 3 rd century A.D.
In China around 700 A.D. a taxation system existed based on crop yields and supported
by land survey records. In India, around 1000 A.D, Raja the Great, who founded the
Chula Empire, ordered a revenue survey.

In England, King William the conqueror (The Norman Invasion) prepared a land record
of all the land in England – the doomsday Book. It showed named of land owners,
acreage, tenure, and land use, land cover (e.g. meadow, forest, and pasture) number of
tenants and quantity and type of livestock. The records were not supported by maps.

4
William, Duke of Normandy invaded England in 1066AD and was crowned King William 1st. He is
famous for compiling the Doomsday book in England; which contained information on land such as;
ownership, acreage, land use, number of tenants and quantity and type of livestock.
5
The Magna Carter is Latin for the Great Charter. It refers to the English Charter launched in 1212AD and
required the King to proclaim certain rights pertaining to Nobles and Barons. Notable among these was the
writ of habeus corpus. It was the most significant early influence on the extensive historical processes
which led to the rule of constitutional law in Europe and later, the USA.

15
In Sweden, King Gustav I ordered in 1540, a survey of all taxable farms. The records
included names of villages and farms, their owners and their tax strength. The records
were revised and up dated from time to time and land survey was later attached to these
records.

In continental Europe, several attempts were made to enhance the quality of taxation by
adding map information. Examples are tax mapping in parts of Italy. The Theresian
cadastre was established in the Austro – Hungarian Empire in 1784. Named after the
Empress Maria – Theresian, the cadastre was established over all the territories of the
Monarchy and was to bring about the basis for unique valid guidelines for land taxation.
The Theresian cadastre is the basis of land registration systems of the eight Danube
countries in modern day central Europe; it later evolved in the German land registration
system, the Ground bch system.

In the late 18th century, the real breakthrough came up with Napoleons code civil in 1807.
Napoleon insisted that cadastral records were to be precisely surveyed. The records were
to contain parcel numbers, areas, and use and land values for each owner based on
accurate survey. The surveys were to proceed systematically parish by parish. Because
of French dominant position in Europe at the time, the French cadastre was adopted in
almost all continental European countries. By the 19 th century, most of the countries in
continental Europe had established a systematic cadastral system. The Anglo–Saxon
world did not develop the French cadastre model.

Accuracy of formal land ownership information is not verifiable by standard scientific

methods. In a Torrens registration system, for example, the administrative act of
recording an owner is combined with the announcement of its legal meaning and the
cognitive response of the public. The land might be visible and observable, but the
socio / legal reality is not and the need for these socio/legal realities to be supported by
accurate, complete and high integrity registers is overpowering. Quality and reliability
involve different protections, checks verifications and support systems. No country can
run a successful, formal economy if its land registers contain “dirty” data.

16
17
Principles of Title Registration System
Was designed to overcome the defects of deeds registration for executing property
transactions. In the title registration system, the register describes the current property
ownership and the outstanding changes and liens. Registration is normally compulsory
and the state plays an active role in examining and warranting transactions.

Under Title Registration, particularly, the Torrens system, there are basic principles of
registration which include:

a) The Mirror Principle

The register reflects accurately and completely the interests in the land are
hence there is no need to check elsewhere for proof of title.

b) Curtain Principle
The register is the sole source of title information. In effect, a curtain is
drawn blocking out all former and unregistered transactions. There is
therefore no need to go beyond the current records to review historical
documentation (as a necessary in a deeds registration system).

c) Insurance principle
The state (Government) is responsible for the reliability of the register and
for providing compensation in the case of errors or omissions; thus
providing a degree of financial security for the owners.

d) The consent Principle

Implies that the real entitled person who is booked as such in the register
give his consent of a change of the inscription in the land registration.

e) The Principle of publicity

18
 Implies that the registers are open for public inspection, and that also the
published facts can be up held as being more or less current by third
parties in good faith, so that they can be protected by law.

f) The principle of specialty

Implies that in land registration, and consequently in the documents
submitted for registration, the concerned system (man) and object (i.e. real
property) must be unambiguously identified.

Features of a good Title Registration System

The most important seven features expected in a Title Registration System are:
1) Security if the quietness of the system. The owner of the land, the man who
buys or leases from him, the man who lends him money in the security of the
land, the neighboring landowner who has a right to pass over the land or run a
drain through it, each and all must be secure. Their rights, once registered,
must be beyond challenge (subject inevitably to certain exceptions, as we
presently mention).

2) Simplicity is essential not merely for the effectiveness operation of the

system, but for its initial acceptance. Landowners, no less than anyone else,
suspect what they do not understand. It is, for example, futile to expect a
‘tenancy in fee simple’ to be a welcome substitute for a right of absolute
ownership enjoyed under indigenous customary law. Te customary law will
probably be well understood locally but a ‘tenancy in fee simple’ is an
expression which is incomprehensible without knowledge of English land law,
and when it is used it tends to import a number of problems. The law must be
capable of translation into the language, which the people speak. Simple
forms must be used and the procedure must be plain and straightforward.

3) Accuracy and (4) Expedition are obvious operational necessities in any

system it is to be effective. We need say no more about accuracy, for plainly

19
 an inaccurate register would be worse than useless, but expedition, or rather
its converse, delay, is not always recognized as being as important as it is.
Only too often the complaint that registration takes too long is justified, and
brings the system into disrepute.

5) Cheapness is relative and can be assessed only comparatively in terms of the

business alternatives. It is undeniable, however, that there can be no cheaper
way of proving title than by an effective system of registration of title,
because no other system dispenses with the necessity for retrospective
examination. But the cost of the introduction of registration of title is a
different matter altogether and is often the crucial factor in determining
whether the system shall be adopted. It must be recognized that initial
compilation, in areas where unregistered rights in land are already established,
is bound to require substantial expenditure, and we can only point out that it
will cost no less (and in the aggregate may cost much more) if compilation is
postponed or spread over an unreasonably long period.

6) Suitability to circumstance is equally dependent on what is currently in

Existence now and what is likely to happen in the future. But whatever the
circumstances, the decisive factor is what is feasible, and this will obviously
depend o the availability of money, manpower and expertise.

(8) Completeness of the record can be constructed in two ways. First, the
record must be complete in respect of all land because, until it is complete,
unregistered parcels will continue to be intermixed with registered parcels,
with different laws applying to each, and therefore important benefits which
should accrue from registration of title will not be obtained. Secondly, the
record of each individual parcel must itself be complete, which is really to say
no more than that it must reflect the actual up-to-date situation.

20
Chapter 2
2. A Review of Land Registrations Internationally
2.1 Western Europe

For historical reasons, there are basic similarities among all the cadastral systems of
the western European countries. These systems are generally based on the principle
of the French cadastre as defined by Napoleon Bonaparte in 1804 in the code civil. A
basic principle in the code civil was that the cadastre should consist of two parts: a
verbal description and a map showing the locations and boundaries of all land units.
In drafting the code civil, Napoleon appointed a commission of only four people.
These were, Trochet, the President of the court of cessation, and Bigot De
Preameneu, Portalis a high administrative official and Maleville, judge of the court of
cessation.

The maps were to be estimated systematically, area by area, by a uniform cadastral

survey; which produced also the field notes on which the maps would be based. The
unique cadastral number of each land unit (the parcel umber) served as a link between
the map and the description. These cadastre were arranged according to the number
of the owner, parcel number, area, land use, quality and value.

This system of land survey and registration was adopted in the Netherlands,
Germany, Australia, and Switzerland. Because of the unique definitions in the
cadastral records, and maps; it has been possible to introduce systems of title
registration with a high degree of security and reliability in all the countries
mentioned.

In France, the mother country of the cadastre, the unification of the cadastre and the
land register has not progressed as in the countries above. It is still maintained as a
fiscal cadastre and depends on the deeds registration rather than Title Registration

21
System. The French system was extended to the former French colonies in west and
Northern Africa. These include, Senegal, Cote d’ Ivory, Togo, Mauritian, Chad etc.

Apart from showing the land parcels, majority of the cadastre in Western Europe are
now incorporating buildings as part of the cadastral maps. This particularly so in the
Federal Republic of Germany where an attempt has been made to establish a register
of buildings as an additional, integrated part of the cadastre.

The introduction of code civil (which advocated for precise cadastral surveys) has
success of cultures in these countries, their wealth and stability is directly related to
their land management capacity. They build coherent land distribution systems which
proved to be adaptable, formed the basis for efficient land taxation, formal land
registration and transaction tracking, and the development of an effective land
market. These processes of surveying, registering, taxing and marketing land are now
the standard components of land administration in the developing countries.

2.2 Northern Europe

Of the Scandinavian countries, Denmark has the system most similar to the Western
ones. Denmark has a comprehensive cadastral map, covering the whole country and
corrected to a national geodetic reference system. All the cadastral records including
maps are maintained by a control government office in Copenhagen called Matrikel –
Kontroret. The cadastre is closely integrated with the land registration system, which
is based on the title registration type. The same close integration is also found in
Sweden and Finland, which both have systems of Title registration based on cadastral
units. In these countries, the cadastre has developed gradually from simple taxation
records loosely limited to maps, to a comprehensive system with a high degree of
reliability.

In Sweden, for example, the urban cadastres were linked with large scale maps early
in 1528 when King Ginstar I initiated cadastral surveys in Sweden. Later, a photo-

22
map in the scale of 1:10, 000, showing all land units in rural areas with their
boundaries was established as a registry index map. In Sweden, the urban and rural
systems have been combined into a common register, while different types for rural
and urban regions still exist in Finland. Apart from these slight differences, the
Finnish and Swedish cadastres are similarly structured.

In Sweden, the cadastre has been further integrated with the land register through
automation. One single agency, the central Board for Real Estate Data (CFD),
collects and transforms selected cadastral and land registration offices are still
responsible for data collection. The offices have online links with the CFD, and are
empowered to change the records in case of subdivision, transfer of ownership,
change, mortgage etc. The CDF is responsible for issuing all certificates as well as
for al communication with other authorities using real estate data. The duplication of
efforts is therefore avoided.

Norway has not previously had a proper cadastral system, and relied on old tax
records only partially supported by maps. The country has however decided to
establish an automated cadastral system, the GABA system, providing data on land
units, addresses and buildings. Its main purpose is to provide information, but not to
serve as a legal basis for taxation or land registration.

2.3 Southern Europe

Spain, Italy and Portugal were influenced by the French Napoleonic, (except Sciatry
and Sardinian in Italy) cadastre (the code civil), and adopted basically similar
systems. However, they were only partially developed, and the Spanish system
especially, does not provide comprehensive, national coverage. The link between
cadastre and land registration is weak. The two records are maintained by different
authorities, and the description of the land in the land register does not always refer to
the cadastral units. The link between the cadastre ad the register is therefore, not

23
primarily the parcel designation, but rather the name of the owners (Deed
Registration System), and is an obstacle to further integration.

Italy has recently established a modern buildings register as part of the cadastre.
Greece does not have a comprehensive, homogenous, national cadastre but the
government is in the process of establishing one.

2.4 Eastern Europe

In some parts of Eastern Europe, especially Poland, conventional pre-war cadastre

still exists. Efforts have recently been made in on establishing economically and
ecologically oriented land information systems. There is also a strong effort towards
the development of mutli-purpose cadastre and to establish information database for
sustainable development and environmental protection.

2.5 General Trends

Today’s European cadastral / land registration system are strongly influenced by the
land information concept. The main trend can be summed up as consisting of:
multiple use, automation, geocodes and digitization. In most of these countries, land
parcel is the uniquely defined land unit upon which all aspects of data integration are
built. Particularly all European countries are today counting on the problem of
automating all relevant land records; mainly the cadastre and the land registry. The
main reason is not only to achieve data integration but to make each record function
efficiently. So far, no country in Europe has achieved the complete automation of its
cadastral/land registration system. Sweden is probably the country that has come
furthest in consulting an automated on-line and integrated system of cadastral, land
registry, land taxation and population records.

In Norway, the cadastral system is currently being revised. A new cadastral law is
under preparation and as a result of the law; the Danish and Norwegian systems will

24
become closer just like the system in Sweden and Finland. The common trend in the
Nordic countries however is development towards a multi-purpose cadastre and use
of computerized cadastral information through interactive GIS systems and the
internet. The Danish cadastral system is already available on the internet. The textual
information is usually presented on the left side of the computer screen while the
digitized cadastral map complete with parcel numbers, is presented on the main
screen.

Another clear trend in Europe is the conversion of land-related information into

spatial systems. The information must be precisely located in order to be of great use.
One method of achieving this is through geocoding. If the land unit is assigned
georeferenced coordinates, all land related information can be spatially defined. The
system used in Sweden for example, introduces the coordinates of the central point of
the land unit as well as the coordinates of the principal building (graphically
determined) into the cadastral records.

In most European countries today, the cadastral maps are being digitized. This is
motivated mainly by the great opportunities it creates for using the same database for
producing maps in different scales and with different combinations of separate layers.
Digitization also provides the opportunity for integrating cadastral data with data on
utilities such as water; sewage, electricity and telecommunication are becoming
increasingly complex. Demands for efficient maintenance and management are
increasing and there is always a danger that utilities may be damaged during
excavations.

2.6 Land Registration in England and Wales

One of the earliest land records were compiled in England by King William I in
1086AD as the Doomsday survey. The Doomsday Book, a record of information
collected for the levying of taxes, was remarkable for its time, but did not have a map.
The Doomsday survey was unique and was never renewed or maintained. There has

25
therefore never been a cadastral (in the European sense) in England. Under the
English legal system, only the King can own land, and a private person can only be a
tenant. The tenancy rights in England, as recognized in the law of 1925, reduced to
two levels only (a) free simple or freehold rights and (b) a term of years (leasehold).

These features of English land law have influenced the attitudes, and practices
regarding, land ownership and leaseholds in many former Dominions and colonies.
The best example is Kenya where we have land ownership rights of freehold
(Kileleshwa, Lavington, Kilimani and Karen), 999 years agricultural leaseholds in the
former white highlands (including part of Chemelil, Muhoroni, Kericho, Brook Bond
etc), and 99 years leases in the urban areas. There are also 9,999 years leases in
Mombasa Nyali estate which have been allocated by Kenya Government.

From the above, it has been found that government land registration was not common
in England. Rights in land were commonly transferred by private conveyancing. The
chain of deeds, which gave a person a “good root of title to land”, had to be submitted
before any conveyancing could be completed. Therefore English people did not
contemplate buying or selling land without the act of a lawyer. It was not in 1862
when titles registration was introduced in England through the Land Registry Act of
1862, and was later followed by the Land Transfer Act of 1875.

The main difference between the two Acts is that the 1862 Act required registration
based on precise definition on the general boundary concept. However, both the 1862
and 1875 Acts failed to take off in England. In 40 years, fewer than 1000 titles had
been registered. The main reason for the failure being that, registration was voluntary
with costs paid by the owner and in many cases the land owner may not be aware of
the benefits of registration. The government showed no interests in encouraging
registration, and the solicitors were not keen to support registration as they derived
the bulk of their work from the private conveyancing, in the transfer of land rights.

26
A new land Transfers Act of 1897 introduced the possibility of selective compulsory
registration. Under this legislation, the registration of Title could be made compulsory
on sales in the designated areas at the request of the County Council. By 1902, this
requirement had been applied in the county of London, but registration remained
purely voluntary in the rest of England and Wales.

By 1925, packages of new land laws were enacted. One of these, the Land
Registration Act, made registration of Title compulsory within designated areas and
the whole of England was eventually covered. Registration of land is still sporadic in
several places since properties are registered only when land is sold or subject to a
long lease.
Sporadic registration of land is undesirable on three main grounds:-
(i) It takes a long time to complete the register (the problem of land
consolidation in Meru, Kenya)
(ii) Registration costs per parcel are high. It is generally much cheaper to
survey and delimit the properties within an area all at once than to do it
in a piecemeal manner (compare with systematic land adjudication in
Kenya).
(iii) Only systematic registration can provide an overview of all the
existing parcels and titles within an area. Such an overview is
essential for purposes of urban and regional planning, planning of
engineering infrastructure, land administration and taxation (e.g. the
case of Kenya).

In England however, great reliable has been placed on the ordinance maps and the
general boundary system. The ordinance survey established (between 1853 and
1893) a topographic map of the whole of England at scales of 1:2500 (for rural
areas) and 1:1250 (for urban areas). The maps show hedges, ditches, roads and
any physical feature demarcating the boundary of land. The maps are
continuously revised and from the basis of the general property boundary in
England.

27
Except for newly developed properties, it is often possible to identify a sold
property directly on the map. Accordingly, the Land Registration Rules of 1925
states that the ordinance maps shall be the basis of all registered descriptions in
land. Because of the general boundary rules, the ordinance map satisfies the need
for the identification of properties in most cases. Descriptions contained in private
deeds are sometimes inaccurate or ambiguous and ground surveys have to be
conducted to ascertain authenticity.

2.6.1 Modernization of Land Registration in England and Wales

The majority of land law reforms of 1925, including the Land Registration Act of
the same year, provided the statutory basis of the present day system. The law
gave the Chief Land Registrar the powers to grant secure and guaranteed
marketable titles and built public confidence in the registration system. A
fundamental review of the 1925 legislation was undertaken in the late 20 th century
leading to the enactment of the Land Registration Act 2002, which facilitated
further development of land transfer in the computer age.
The main objectives of the Land Registry in England and Wales are:-
a) To maintain and develop a stable and effective land registration system
throughout England and Wales as the cornerstone for the creation and free
movement of interests in land.
b) To guarantee title (on behalf of the Crown) to register estates and interests
in land for the whole of England and Wales.
c) To provide ready access to and guaranteed land information which enables
confident dealings in property and security of title to achieve progressively
improving performance targets set by the Lord Chancellor (the Minister
for Justice); so that high quality services can be delivered promptly and at
a lower cost to users.
London was fully registered between 1899 – 1901 and now the whole of England
and Wales are subject to compulsory registration. Once land has been registered

28
 several transactions and dealings can be effected. These include mortgages,
discharge, the creation of new rights of way, covenants, leases etc.

The register therefore constitutes a complete record of subsisting legal interests,

rights and boundaries. All land in England and Wales are subject to the Land
Registration Act. In England and Wales, therefore, the legal state in land, or an
interest in land, is not established until an application is properly submitted to the
Land Registry.

In 1986, the main land registers project was launched and all the land registries in
England and Wales were computerized. All the 19 million + computerized
registers can be accessed on – line by any user who has a credit account. The
direct on-line access and telephone security systems have transformed access to
land information.

2.7 Land Registration in the United States of America

In the USA, the legal land registration system is based mainly on private conveyancing
and the registration of deeds. Land units in the USA were surveyed based on the Plane
Rectangular System. This system was approved by congress in 1785 and divided the
country into quadrants of one rule by one mile.

The Plane Rectangular System was controlled by base-lines and Prime Meridian. There
are 31 pairs of these standard lines in the USA and three in Alaska. Surveyed boundaries
were marked and monumented on the ground. A cadastre was however never established
in the USA and the system was not based on geodetic control or on official plane-
coordinate system.

The principal motivation for creating a public registry of deeds was to encourage the
transfer of titles in parcels of land from the public domain to private individuals and to
offer a measure of security in such titles. However, the record system never developed

29
into a full Land Registry. During the early days of settlement in the USA, Local
Governments appointed a Recording Clerk or Registration of Deeds and an official
surveyor. As the records grew in volume and complexity, the problem of getting access
to all needed information pertaining to specific parcels became difficult.

Serious attempts have been made to introduce the Torrens statutes, but this has succeeded
only in a few cases. About fifteen states have enacted the Torrens statutes, but because
Title Registration is voluntary and the cost of searching into the deeds is tedious,
registration is unusual. Instead, title Insurance is common in the USA. Private companies,
each operating within a single state, keep land record of their own.

These records are compiled and kept up to date by expert staff that makes daily
obstructions of pertinent details from the official records. Title Insurance companies
have this duplicated and are maintaining public land records (including survey records) of
entire communities in their own private Title Banks. The company can then insure a
Title if the records indicate that it is sound. The business for these companies has
increased tremendously since 1980.

The biggest drawback of title insurance surveys is their proprietary as well as their insular
nature. Private Land Surveyor conduct land surveys under very strict standards. Based
on record research of relevant public boundaries and computations of field notes, a large
scale map (1:200) boundary plan is prepared. The registered Land Surveyor certifies to
the title insurer, owner, lessee and / or lender that the property boundaries as depicted on
his plan are correct to his professional ability.

The greatest draw back to this certification is the lack of coordination between the
various parcels. Each parcel is surveyed on its own and are not necessarily connected to
the abuttal’s which may not have been survey dither. There is usually no comprehensive
large scale cadastral map available to which the title insurance survey can be related for a
permanent fit. The title insurance plan becomes the property of the private title insurance

30
company, which stores it in its own data bank for its own future use. The abutting
owners of such a survey are seldom aware of its existence.

2.7.1 Modernization of the cadastre in the USA

The need to develop parcel based land information (from this large value of land data) is
currently going on in the USA. Some states have already implemented integrated
cadastre for their countries.

Examples are Wyandotte County, Kansas, which has developed a parcel, based land
records system. Principal components of the system are parcel maps on a scale of
1:1200, a comprehensive main frame database of the characteristics of 66, 000 land
parcels and a topologically encoded file of digitized parcel boundaries. In Lane County,
Oregon, all the coordinates and data in the system are based on a simple set of base maps
and coordinate control. The parcel file includes all ownership and land us types in the
country.

Data attributes include tax map and parcel number, land use, number of residential living
units, coordinates of the parcel parameter and the coordinates of the parcel centriod. The
address, and the geocoded summary file contains al parcel file records such as:- Zoning,
school attendance areas, census tracts, city limits, comprehensive plan designation,
annexation, soil types, tax valuation an appraisal information. The National Research
Council Panel on the multipurpose cadastre has studied the need procedures and
standards for such a database. The main issues considered in establishing the USA
multipurpose cadastre are:-
i) Establishing of a unique parcel numbering system.
ii) Development of a tract index.
iii) Geodetic control and densification of Monumentation.
iv) Base mapping procedures.
v) Cadastral layer data structure
vi) Spatially registered layers of other land data.

31
2.7.2 Law in the USA

Unlike England, the United States of America has a written constitution which gives the
country a federal structure and contains a list of basic rights which may not be infringed
by the legislature, the judiciary, or the executive. Settlement of Northern America began
in the first half of the seventeenth century. Small colonies were set up first in Virginia
and the East Coast. America became independent in 1776 from England (Britain). The
Federal constitution was enacted at the famous Philadelphia Constitutional Convention in
1787 and came into force in 1789 for its first 13 states.

Land Registration Systems in Australia, New Zealand and Canada

Sir Roberts Torrens6 introduced the Torrens systems of registration in Australia in 1858.
In the years 1858 – 1874 each of the colonies in Australia and New Zealand adopted this
new system of land registration. Robert Torrens appears to have been influenced by the
German ship registration system used in Hamburg. Title to land under this system was
not based on private deeds of transfer as in England but on the land Titles themselves that
were registered in an official register of titles.

It was much cheaper and simpler than the deed system that was operating in England at
the time. Cadastral maps and plans were carried out and deposited by licensed land
surveyors and become an integral part of the registration system. The Torrens system
spread from South Australia (1858) to Queensland (1861), New South Wales, Tasmania,
Victoria (1862), and Western Australia (Perth), 1874.

The Australian Torrens Act (and the New Zealand Land Registry Act of 1860)
established a precise and pivotal role for cadastral maps in the land registration process.
The Torrens system was subsequently introduced into many other British colonies in the
late 19th and early 20th century. These included Kenya, Ghana, Zimbabwe, Zambia, South

6
Sir Robert Torrens was a graduate of Trinity College in Dublin

32
Africa, Nigeria, Liberia and Sierra Leone; just to mention a few. The system was also
introduced in Thailand, Brazil and Hawaii.

A main feature of the Torrens systems is that the land in question is identified on a map
(the deed plan) attached to the certificate of title and the certificate of titles gives details
of ownership as well as a description of the land, with appropriate reference to the
easements, embraces, and other conditions.

Under the Torrens system, all the transfers must be applied for, examined and registered
at the land registry. This mandatory requirement is an important feature of the Torrens
system for the Government can thus guarantee the new ownership. The Torrens system in
Australia does not cover land granted before the system was legally established. For such
old land grants, registration is voluntary.

Therefore two systems still exist in Australia side-by-side, the Deeds system and the Title
Registration system based on the Torrens principle. The majority of transfers follow the
Torrens system, but others take place without registration in the form of private
conveyances, where lawyers from both sides draw up the documents needed and effect
the transfer. There is a lot of efforts however to bring all the registration under the
Torrens systems.

In 1924, New Zealand enacted a law which, within 20 years, brought all the out standing
titles unto the register. Similar legislation was later adopted by several Australia states as
indicated above. By requiring systematic registration, which includes the necessary title
searches (particularly in the old deed system) Australia is in the process of achieving a
complete system of land registration.

At the moment, Australia and New Zealand have completed the digitization of all the
industrial records and established Land Information System. The tenures systems was
also been introduced into Malaysia, Singapore and Brunei. India has the system operating
in West Bengal, Andhra Pradesh, and Tamil Nandu areas.

33
Cadastral Reforms in New Zealand

Cadastral system changes in New Zealand in mid 1980s were characterized by the

following aspects:

 The introduction of computer mapping technology to create a digital cadastral

database for both the recording and management of cadastral data, and for land
administration and medium and large-scale GIS applications.
 The introduction of full cost recovery for provision and maintenance of the
cadastral survey system for access to data, and regulatory purposes.
 The Department of Survey and Lands (DOSLI) was changed with maximizing
revenues and accordingly initiated some value-added services in addition to its
core regulatory functions
 The extensive use of existing cadastral records and new survey activities to effect
the massive identification and transfer of Government land assets to State Owned
Enterprise (SOEs) or other forms of privatization, and for the settlement of Maori
Land claims (the indigenous land rights). This process is continuing as more
Government assets are prepared for sale and land claims are negotiated.
 A major restructuring of longstanding departments of state into more single
function focused departments, and SOEs, resulting (among others) in the
Department of Survey and Land Information (DOSLI), established in 1986.

Between 1996 and 1999, the New Zealand Government initiated major reforms to
automate the cadastral system. These included: (i) Cadastral Surveyor Accreditation, (ii)
Occupational Registry Framework, (iii) Outsourcing of Geodetic Surveys and Survey
Maintenance, and (iv) Survey and Title Automation.

34
Cadastral Survey Accreditation and Audit

In New Zealand, cadastral and related survey activities are regulated by the provision of a
National survey system and standards, by plan audit and approval, and by the registration
of surveyors to carry out surveys. The basic objective is to ensure the efficiency and
integrity of the survey system, sound sub divisional procedures, security of tenure and of
land boundaries, and reliable cadastral mapping or databases.

The Cadastral Surveyor Accreditation and Audit System is process designed provide the
Government with the assurance s to the quality of the data submitted into the system, by
focusing on Quality Audit rather than on mass manual checking of selected details. The
Automatic system (Landonline) automates many of the manual checkings as part of the
process of input data validation to ensure the database retains its integrity and reliability,
particularly for future applications. Accreditation thus becomes a key component of the
automated system currently operating in New Zealand. Accreditation also contributes
towards occupational regulation by providing a process for regular monitoring of a
Surveyors competence and performance.

Occupational Regulatory Framework

It is part of the Government policy to reduce costs by reducing unnecessary entry barriers
to occupations. The New Zealand Government has set out a framework for assessing the
need for any statutory or other regulatory protection of an occupation, and a process for
establishing any such protection. The key point of the framework is that the extent and
nature of any regulation of an occupation depends on the nature or extent of risk or harm
that incompetent, reckless or dishonest practices poses to the public. So within this
framework, there are options for: (i) regulation by the market only, (ii) self regulation,
(iii) varying levels of Government regulation e.g. licensing registration or name
protection.

35
Geodetic Strategy and New Datum

The geodetic system provides a country with the basis for managing all geographical or
spatial activity, whether local, national or global. Recognizing that there were a number
of significant drivers for change impacting on the geodetic system, Land Information
New Zealand (LINZ) initiated a strategic review to ensure that it could continue to meet
emerging needs efficiently for the foreseeable future. Results of this review have been
the development of a Geodetic Strategic Business Plan (LINZ 1998) for the next ten ears
and the introduction of a geocentric datum, New Zealand Geodetic Datum 2000 (NZGD
2000). Major drivers for the new datum were the need for an accurate and more
consistent control framework to convert and automate existing cadastral records, and to
provide a framework facilitating the use of new survey technologies, in particular GPS.

Survey and Title Automation, or Landonline

This major initiative of LINZ will have far reaching and very significant impacts and
benefits to the survey system. It is designed to bring the partially digital and paper based
processes of the current and predecessor departments fully into the electronic age. It
builds on a number of earlier initiatives, such as DCDB, Survey System Strategy, LIS
and Land Title Link. Its major features of relevance to the survey profession are:
 Integration of the survey and title processes and information, as key components
of land development, settlement and resources use activity.
 Establishment of Survey – accurate Digital Cadastral (SDC) areas, where
boundary dimensions will be held and made available digitally, and where
boundary positions will be accurately co-ordinate in terms of the new geodetic
datum and framework of geodetic control marks.
 Ability to remotely access plan images, SDC coordinates, attribute parcel and
geodetic data.
 Ability to remotely pre-validate new survey data against the official SDC values
and current topology.

36
The key component of the automated system is the land parcel, with links to the spatial
and observational data, and to the various tenures, attributes and rights associated with
the parcel. The survey system already supports and integrates a variety of tenures and
records, such as:
- Fee simple title and other interests registered under the Land Transfer System
including strata title.
- Public or other Crown land holdings including reserves, public purposes, roads
and leases of Crown Land.
- Individually Land multiply owned land held the Maori Land Court.
- Other interests such as:
Cultural sites
Protected area covenants
Utility easements
Mining and marine Licenses
Hazardous and contaminated site restrictions
- Crown Land allocations.

Allocation has been designed to take these various interests and forms of ownership
into account, so as to have the capacity to manage the growing complexity and
variety of land interest, rights and restrictions, and potentially to integrate these into a
single tenure system. In addition, the existing parcel based DCDB is used by all local
government and most major utility companies as a basis for recording their
administrative responsibilities, assets and utilities. An important part of the
automation design is to appreciate how it fits in with all the other processes and
functions involved in land administration, development and settlement, so that it is
better able to respond to these needs.

A particular application is the use of the cadastral parcel, in conjunction with

statistical area units (mesh blocks) and street address, to support national census
taking and to enable the redistribution and definition of constituency boundaries for
national and local government electoral processes. This linkage of spatial address or

37
location data and socio-economic census data has a growing number of applications
in public administration and commercial activity.

In summary Landonline provides a continuous parcel-based cadastral database of the

country, containing survey observations fully integrated with the geodetic framework
in SDC areas. It is also linked to Land Transfer and other tenure information and to
street addresses. This is of considerable benefit to a wide range of users, e.g. GIS,
utility and land administrators, who have a need for a digitally available up – to – date
and accurate spatial database, with links to street address, parcel appellation and title.
The ability for this database to the used to support a wide range of other large
scale mapping, GIS or remote sensing applications is considerable, and likely to
expend enormously, creating significant opportunities for commercial added
value initiatives.

Cadastre 2014
Cadastre 2014 (UN-FIG, 1998) developed from extensive international study into
cadastral reforms, provides an excellent framework for the analysis of recent reforms
in New Zealand, recognizing however that these are the result of singular cultural,
social and economic drivers, not necessarily applicable to other nations.

Statement 1
Cadastre 2014 will show the complete legal situation of land, including public
rights and restrictions
Traditionally the cadastre in New Zealand has confined itself to recording ownership
or status of land, including reserved or public use areas. The cadastral sub divisional
survey process does however require a full knowledge and analysis of all of the
public and private rights and restrictions on land as well physical constraints, features
and services. In general public rights or restrictions (apart from access or service
easements, height restrictions or covenants) have not been recorded on titles to land,
but instead generally by local authorities in their own record systems. Most of these
systems make varying use of LINZ cadastral maps or databases to record these rights.

38
These also record some public restrictions, such as flood prone areas, hazardous and
contaminated sites and public access over titles.

The Resource Management Act and Building Act require Local Authorities to
provide, respectively, a Land Information (LIM), or Property Information
Memorandum (PIM), to any enquirers (for a fee). These memorandums are in effect
a report or a dossier of all information the administering authority may have about the
land or property being enquired of. There is however no assurance that they are
always complete or accurate in all respects.

There seems to be little doubt that, as a result of growing environmental concerns an

also commercial efficiencies there- will be a requirement to record a variety of public
restrictions, or rights to public resources over privately owned land. It is not certain
that central government would do this, but at a technical level it is certainly possible
to make use of basic data from Landonline, to ensure a spatially integrated reference
system as a basis for mapping and integrating such information. This is possibly the
next major development for the cadastral system in New Zealand. Robertson (1996)
has noted the role of the cadastre as an environmental management tool.

Statement 2
The separation between “maps” and “registers” will be abolished
The situation described in Cadastre 2014, separately administered survey and little
systems, has applied in New Zealand since 1876, when the current survey (Planner
1975) and Torrens systems were introduced. While these systems were in different
government agencies, there was close operational alignment between survey and title
processing. There are also separate titles or recording systems for Maori and Crown
Land (although based on a common survey system).

With the bringing together of survey and title into the organization (LINZ) in 1996,
we had, and took, the opportunity to further integrate or align the existing manual or
partly automated processes for survey and land title systems inherited from the

39
respective predecessor agencies. Public land tenure administration is still spread
among various government and local government agencies, and Maori land is
administered by the Maori Land Court.

Landonline is designed to achieve a fuller integration of both processes and data

flows. It will also require a more integrated organizational structure and a combine
skill base for administering the system and for carrying out the various survey and
registration tasks. As systems and routine actions are progressively automated, total
staff numbers will reduce, with a consequential focus on enhancing and broadening
technical and analytical skills of the remaining staff to handle complex, conflicting or
innovative transactions. There will also be a need to provide advice to government
and the public, and to manage the information.

Statements 3
The Cadastral Mapping will be dead. Long live Modeling
The main points to make here are that, traditional cadastral mapping; the form of the
map virtually defines the database. There is a concentration on those data attributes
that can be readily depicted on a map. The design characteristics of the cadastral map
will be largely static and must attempt to satisfy as many applications as possible.
The difficulty with this is that there are many important attributes of a cadastre which
are not legal state of the cadastre with time; the steady accumulation of survey
observation which occurs at the same time as general attrition of survey marks. Also,
cadastral data is increasingly being put to a wider range of purposes and one design
for the mapping view cannot meet all requirements.

The advantage of cadastral data modeling is that the cadastral map becomes a view of
the database – not the database itself. It is one of many ways of accessing the data – a
powerful tool but not the only data access mechanism. The structured database can
support many types of view including textual reports, hierarchical structures and a
support many types of view including textual reports, hierarchical structures and a
variety of spatial views, each of which can be tailored, hierarchical to a particular

40
application or just to user preference. Those numerical and textual processes which
are not map-based can c0-exist with the cadastral mapping view and can be based on
the same authoritative data.

The survey part of Landonline will be populated with DCDB data but will, from that
point on, evolve into a fully structured cadastral survey and title database. External
users with access to the modeled data will be able to add their own structured data to
the cadastral data.

In New Zealand digital conversion of cadastral maps or records sheets (DCDB) was
commenced in 1985, and completed in 1996, with the effect that from that point paper
cadastral maps were no longer use, and all recording and maintenance was done
digitally. Whilst it was a fully modeled database it was designed on the basis of
providing a map or spatial view, with the ability to provide paper outputs from the
database by simple enquiry. The DCDB is a fully structured and topographically
complete database. However, it lacks full numerical accuracy or consistency of
coordinate values, and thus it currently has only limited applications to large scale
uses. The DCDB is in effect an intermediate step framework towards a fully modeled
cadastral database.

The spatial database to be built for landonline will comprise a conversion of the
existing DCDB, together with selected numeric capture (mainly in urban and
intensive rural areas) to create a Survey accurate Digital Cadastre *SDC). The
underlying premises is that, while individual survey measurements tend to be of good
accuracy, some of that accuracy can be lost through inconsistencies in the way
surveys are connected, or in the governing control framework.

A significant feature of Landonline is that the geodetic and cadastral components are
managed within one spatial system, although there will be distinct receipt, validation
and update processes. Cadastral surveys in SDC areas will be required to connect to
the geodetic control, and in this way will be able to contribute directly to the

41
maintenance of the control framework. This process will also maintain accurate and
consistent coordination of land parcels, as a basis for large scale urban mapping GIS
applications. The new datum and associated survey control network (referred to
above) will generally be at densities of 300 – 500m in urban areas to control the
capture of dimensions of plans into the new spatial database and adjustment of that
data.

The existing DCDB is already used to spatially manage and define street addressing,
statistical, electrical and administrative areas, and the new database will continue this
function. The achievement of numerical accuracy and reliable geodetic coordinates
in SDC (urban – intensive rural) is of considerable interest to service and utility
agencies, who at times have found the spatial inconsistencies of the DCDB at larger
scales, to be frustrating. There is considerable and growing interest among the GIS
user community in the new data model, particularly with its improved links between
parcels and attributes.

Statement 4
Paper and Pencil – Cadastre will have gone
The key issue here is the future role of the plan. Surveyors build structured databases
in their survey software. LINZ is building a structured survey database also. During
a transitional period, the method of transferring data from the surveyor tot eh
cadastral database will continue to be the traditional method – the survey plan. LINZ
will enter the data into the database for subsequent processing and updating.
However, as digital lodgment is implemented, the role of the survey plan as a data
transfer format becomes redundant. All we need is a digital format to effect database
to database communications (surveyor’s software to the automated system). The
survey plan may continue in its other role of providing a view of the survey to the
surveyor’s client, local authorities, etc. However, this role of providing a view of the
structured data is much more efficient and flexible if it is separated from the changes
from being a “paper and pencil” input to the cadastral system to being a digitally
generated output of the database.

42
Recently revised Survey Regulations (1998) have anticipated this development by
defining a Cadastral Survey Dataset (CSD) which can be administratively specified to
be either digital or paper. Current paper plan presentation requirements are specified
in a separate schedule to the Regulations. Fully digital lodgment and validation also
raises issues of electronic signatures and security, which are being addressed in a
number of other sectors as well.

One aspect, referred to in Cadastre 2014, was the need for sophisticated software and
associated development skills to handle spatial data and objects. This has certainly
been a constraint in the development of landonline, in that the contractor had
difficulty in obtaining suitable sufficient people with skills in spatial design and
software. LINZ had to augment these from its own resources, which in turn had been
built up over a number of years of training and other in-house digital development of
survey systems. Although LINZ has some significant skills in this area, much of this
was committed to providing technical and business advice and testing, and it is fair to
say that we have struggled to provide resources while still running the business.

Statement 5
Cadastre 2014 will be highly privatized. Public and Private sector are working
closely together
Cadastral surveying in New Zealand has been characterized by a well established and
versatile private sector which has traditionally carried out all surveys of private land
and most government land on contract. The private surveyor is involved in all
aspects of land subdivision, form initial economic and legal assessment, to site
surveys, design, planning consents, roaming and services and final survey for issue of
titles to the land, thus making a major contribution to land management and
administration. Registration of surveyors to carry out cadastral survey is in effect a
delegation of statutory functions and is a form of privatization of a government
function. This has been further reinforced by the introduction of the process of
accreditation of surveyors referred to above.

43
The government, through the Office of the Surveyor – General in LINZ, provides the
regulatory supervision and administrative control of cadastral survey, by setting
standards and policies, approving and auditing inputs, and maintaining the records. It
also specifies the programmes for geodetic control network maintenance, statutory
processes and database maintenance. While government regulation and maintenance
of systems has often been perceived as a cost, it provides significant benefits to
surveyors and their clients, in that it ensures common and consistent standards, the
ability to share and reuse survey information, and the ability to retrieve survey marks
and information.

An important feature of the system, arising from the statutory framework, is the
partnership and shared responsibility of the private and public sector for the integrity
and efficiency of the survey system, and consequent security of land boundaries and
reliability of land information. Further development of Landonline should enable
surveyors to compare their surveys with the database and automated business rules
and to effective pre-validate much of their own work. If all tests are passed then the
survey could be automatically approved. The only interventions would be where
complexity or inconsistency required manual expert assessment, and regular audits.

Statements 6
Cadastre 2014 will be self recovering.
The importance of the spatial data system (of which the cadastre is a key component)
to the New Zealand economy and its significance as a strategic government asset was
reaffirmed by Ansell & Collins (1995) in their review of DOSLI).

The survey system is regarded as a strategic government asset and up until about
1985 / 86 was largely funded by the Crown, with a small level of recovery from
statutory fees. From 1985 / 86 progressive cost recovery was introduced for plan
lodgment and approval and for access to survey data. This was further extended in
1989 with the introduction of a levy on land transfers to fund the maintenance of the

44
survey system network and records. The rationale for this was that existing parcels
could be transferred without the need for resurvey or title insurance because of the
standards of survey and maintenance of the survey framework and records, and the
level of public confidence in the system. Government accordingly agreed that land
purchasers were the major beneficiary of the survey system and should therefore
contribute to it. Other users, e.g. of DCDB or geodetic data, paid by way of data fees.

The cadastral system, both survey and title, is now fully cost recovered, mainly
through statutory fees levied on transactions and data fees, and in fact has returned in
recent years a surplus of about $5-8m per year. The landonline development is also
being funded by current users, by way of additional fees. These will cease in 2003.
Existing fees will also be reviewed as automation is completed and transaction and
maintenance costs reduced.

Summary and Conclusions

The New Zealand cadastre has already achieved, or is in the process of achieving
most of the objectives identified in Cadastre 2014. The major ones where further
opportunities lie are in the complete or integrated recording of both private and public
rights and restrictions, and in the development of a fully survey accurate spatial
database forming a basis for the spatial integration management and use of land based
data – a truly multipurpose cadastre.

These achievements build on the early adoption and continuing maintenance of sound
national survey systems and administration in a developing country. More recent
advances have been in response to the major economic reforms and restructuring in
New Zealand from the mid 1980s to now and to technological advances. Future
drivers are likely to be the rapidly growing demand for the better quality and more
readily accessible (on-line) spatial information, much of it for land management or
environmental needs, but also to support a more participatory and informed
community, and to reduce business risk and uncertainty.

45
 A key objective of cadastral reform must be to ensure that it provides a system
that allows a nation to effectively and efficiently manage its land resources in a
way that meets the economic and social aspirations of that nation. So cadastral
reforms must understand and analyze those needs, the capabilities of
technologies available to us, and anticipate future demands.

It is our belief that recent and current reforms in New Zealand are aligned to cadastre
2014 in that they will provide the nation with low cost, speedy and accessible means
of carrying out land transactions, and a comprehensive fully digital information
system readily and cheaply available to the public, asset managers, business and
policy makers. But in all of these things history and society will have to be the
ultimate judge of our success. This report was compiled by Tony Bevin, the New
Zealand Surveyor General and the paper was presented at the FIG Commission VII at
Bay of Islands, 9th to 15th October, 1999.

Land Registration System in Canada

The Torrens system has also had a great influence in land registration in western India,
British Columbia, Alberta, Manitoba, Saskatchewan and the North Western Territories all
have Title Registration system based on the Torrens approach. In British Columbia and
Manitoba, the old system of deeds registration still exists alongside the title registration
system. In the Eastern provinces of Canada, deeds registration system predominate in the
maritime provinces of eastern Canada, a long term project to create a parcel based land
information system was given to establish and maintain a second-order geodetic continue
system; the next stage was to produce and maintain base maps and large-scale property
maps (Cadastral plans) to serve resource management urban development and parcel
identification needs. The third stage consists of the conversion of the existing deeds
system to a computerized guaranteed title registration system.

The Land Registration and Information service (LR15) programme was a comprehensive
attempt to resolve a set of problems related to land information management in the
maritime area. Under the programme, Cadastral maps and computer files have been

46
created for more than 750,000 parcels. In addition, many government agencies and
private organizations have established their own computer-based data files. A centralized
land Data Back which was proposed has not been effected. Efforts have shifted towards
development of distributed Land Information Networks, in which each organization will
maintain responsibilities for its own data.

47
Chapter 3
3. Land Registration System in Kenya
3.1 Introduction
Land registration system in Kenya is conducted in two main systems: the deeds
registration and title registration systems. The deeds registration system was the earliest
form of registration introduced by the Colonial government towards the end of the 19 th
Century. The system is governed by Part XII of the Crown Lands Ordinance of 1902
(repealed in 1910 by the Land Titles Act Ordinance and in 1915 by the Government
Lands Act), the Registration of Documents Act (RDA), Cap 285 of 1901, the Land
Titles Act, Cap 282 of 1908, and the Government Lands Act, Cap 280 of 1915. Title
registration is governed by the Registration of Titles Act (RTA), Cap 281 of 1919, and
the Registered Lands Act (RLA) Cap 300 of 1963. More recently, in 1987, the Sectional
Prosperities Act No21 was enacted to provide ways and means of registering sectional
properties including flats.

3.1.1 Registration under the Registration of Documents Act (RDA)

The RDA was the first registration Act in Kenya. It was a simple deeds registration
system introduced in 1901 to register land transactions of the Crown Lands Ordinance
and earlier land allocations7 at the Coast. It compulsorily required that registration of
transactions had to be effected within two months of execution. A copy of the registered
documents was retained in the registry and an index of names registered was kept. The
registration processes under the Act were not supported by any survey plans hence it was
difficult to locate the registered property. Under the RDA, the proprietor had to trace the
root of the title to the satisfaction of any intending purchaser [Maini, 1967].

Initially, registries for the RDA transactions were opened up at Mombassa, Nairobi,
Malindi, and Naivasha. The Malindi and Naivasha registries were closed in 1915 and
their records were amalgamated with Mombasa and Nairobi registries respectively. Two
7
Available literature [Caukwell, 1977] indicates that prior to the declaration of the Protectorate status over
Kenya; several land transactions had taken place between the IBEACo and the Sultan of Zanzibar through
the Indian Transfer of Property Act (ITPA) of 1882.

48
records were established under the RDA system; the “A” register which was compulsory
and the “B” register which was voluntary. The compulsory register recorded all the
transactions in land and immovable property while the voluntary register was used as a
public record of any deeds or other instruments which might be accidentally lost. The
Principal Register of Documents administers this Act

.3.1.2 Registration under the Land Titles Act (LTA)

Under the 1887 concessions, the 1894 and 1897 land regulations, and the 1895 land
treaties, it was generally agreed that all existing land rights of the Sultan of Zanzibar
within the ten mile coastal strip, were to be recognised and respected by the new colonial
administration [Caukell, 1977]. The Crown Lands Ordinance did not include these lands
as Crown Land. The Land Titles Act was therefore enacted to facilitate adjudication of
land claims within the ten nautical mile coastal strip. Through this process of
adjudication, it was possible to find out land which was legally occupied and the
unoccupied land that could be alienated as Crown land.

The Act provided for the establishment of a land Registration Court presided by a
Recorder of Titles. A surveyor was attached to the court to define the boundaries of the
adjudicated land claims. A certificate of title was issued to successful claims while the
parcels which were not adequately claimed were declared Crown Land. The Recorder of
Titles kept a register book in which duplicate copies of the certificates of title were
bound. An amendment of the Land Titles Act in 1910 set up a Deeds Registry which was
indexed by parcels, defined on survey plans, examined and authenticated by the Director
of Surveys.

Some of the special features indicate that the Register kept under LTA was not
indefeasible as the root of title still had to be traced to the original certificate during
transactions. The Act also did not provide for any indemnity to the proprietors. The
Recorder of Titles was the authority on the extent and size of the plots. The surveyor
marked and defined the boundaries of the plots under the general guidance of the

49
Recorder of Titles. Applications of this Act are confined to the Coast Province of Kenya
and only one Register is maintained at the Coastal Land Registry in Mombasa. The Act is
administered by the Principal Registrar of Titles.

3.1.3 Registration under the Government Lands Act (GLA)

By 1915, it had become clear to the Colonial government that the Crown Lands
Ordinance, with its six pages of simple provisions, was inadequate to maintain a firm
control on land matters as the protectorate developed [Caukwell, 1977]. The Government
Lands Act repealed the Crown Lands Ordinance of 1902 and authorised the
Commissioner of Lands to issue 99 year lease for urban plots and 999 year leases for the
agricultural land. Under the Act, registration of grants and transactions was compulsory
and unregistered documents or deeds had no validity in Law.

The registries at Malindi and Naivasha, set up under RDA, were closed and the registers
in these stations were transferred to Mombasa and Nairobi. The Act was basically a deeds
registration system supported by authenticated survey plans and approved deed plans.
Under the Act, three registers were opened: one in Mombasa and two in Nairobi. One of
the registers in Nairobi was for land within Nairobi and its environs while the other
register was for land in the European settlements in the White Highlands.

Under the Government Lands Act, the Deeds were noted in folios of the register, with
one folio being devoted to each parcel of land. Majority of the titles prepared under the
GLA were indentures where both the seller and the buyer signed the documents of
conveyancing. Once there was a need for transfer of the property, the old indenture was
discarded and a new one prepared afresh. Most of the titles in land formerly owned by the
IBEACo in Nairobi are still registered under this system. The Act is administered by the
Principal Registrar of Government Lands.

50
3.1.4 Registration under the Registration of Titles Act (RTA)

With the promulgation of the GLA in 1915, the white Settlers started to insist on title
registration rather than deeds registration [Okoth-Ogendo, 1991:44]. Thus the
introduction of the RTA was seen as a culmination of the title registration since1896. The
RTA was therefore enacted principally to provide for a title registration system as
opposed to the deeds registration which was practiced under the RDA and the GLA. It
was modelled upon the Torrens system of Australia and partly on the English Common
Law as spelt out in the Land Registry Act of 1862 [Larsson, 2000]. According to the
Lawrance Mission report [GoK, 1966: 65], the Act was not well drafted and by 1927,
three separate committees had recommended for its repeal and replacement but the
proposal disappeared due to the desire to have a uniform registration system for the three
East African countries.

The Act took over all the previously registered deeds under the GLA, or those subject to
the certificates of mortgages, or any other interests issued by the Recorder of titles under
the LTA and the RDA. It also applied to all leaseholds that had been converted from the
terms of 99 years since 1902 (or even those of 999 years) to freeholds, and to any titles
converted on a voluntary basis from the GLA or LTA to RTA Titles [Ojienda and
Rachier, 2000]. According to Okoth-Ogendo [1991:44] with the enactment of the RTA,
the disinheritance of the African communities in Kenya, within the framework of colonial
Law was complete.

Upon first alienation of land, a grant is issued by the Government. The original grant and
the copy are endorsed with the index number of the title. When a transfer is registered,
the transaction is endorsed on the title itself so that all the transactions under the RTA do
not create a new title. All other transactions such as charge, mortgage, etc are also
endorsed on the original grant. Under RTA, the Government provided guarantee of title
and indemnity against fraud, error of omission and commission, and negligence for the
first time. Two registries are maintained under the Act: one in Mombasa and one in
Nairobi.

51
All entries in respect of transactions are registered in their order of presentation. There
are no separate columns for property, proprietorship or encumbrance sections as found in
the Registered Lands Act system. Copies of all registered documents in relation to a
parcel of land are kept in deed files, a copy of which is available for each parcel of land.
Registration of land under the Statute requires a deed plan authenticated by the Director
of Surveys. When land is subdivided under this Act, new titles (certificates of title) are
prepared for each parcel in the subdivision and the original title is cancelled and kept in
the registry. This Act is administered by the Principal Registrar of Titles.

3.1.5 Registration under Registered Lands Act (RLA)

The Registered Lands Act was enacted to provide a complete code of land registration
system in the country. It was the objective of the Government that this statute would
eventually replace all the other Acts dealing with land registration in Kenya. At the time
of enactment, the Act superseded the registration provisions of the Native Lands
Registration Ordinance of 1959 and the Land Registration (Special Areas) Ordinance of
1960. The Act applies in areas where land have been surveyed under the general
boundaries (as in adjudicated areas), areas where land have been fixed under section 22
of the Act; or areas which are being converted from the RTA registration system and
areas under the Sectional Properties Act.

The RLA provides for the establishment of District Land Registry Offices which
maintain a registry map, parcels file, a representation book, and a separate register for the
powers of attorney. In Kenya, the system has been decentralized to most of the
administrative districts in tandem with the requirements of the general boundary surveys
and the policy of providing cheap and accessible registration to a majority of Kenyans.
As opposed to RTA and GLA registration system where deed plans are the basis of
registration, under the RLA system, great reliance is placed on the Registry Index Maps
(RIMs).

52
The RLA system of registration is far much cheaper than that of RTA because: (i) it is
operated at the District level, (ii) the system uses RIMs which contain several parcels of
land instead of sets of deed plans drawn for each plot under the RTA, and (iii) the
registration documents are prepared by the District Registry staff rather than Lawyers.
The registration under RLA results in freeholds for rural areas and leaseholds for the
urban areas.

53