Yours to keep, don’t be so sure!

Are you at risk of losing your land? Here are some tips to avert such a situation

By Kirthimala Gunasekera and Maya Nanayakkara

Many of us are complacent about the land we own. We believe that once a land is purchased, it is ours to use, occupy and enjoy or to gift and pass onto our children and generations ahead. Unfortunately, in Sri Lanka, the prevailing conditions for land holdings are wrought with so much dishonesty and malpractice that we can no longer rely on the title deed and be confident of ownership.

The following are a few of the circumstances where ownership can be compromised.

• Fraudulent transactions, where signatures of land owners are forged, to transfer lands. Forgery of title deeds, now quite common, results in dispossession of the real owners. Many of the forged deeds have official attestations by notaries.
• Deterioration of land policies. Constant changes to existing policies and laws relating to land e.g. restricting and liberalizing ownership at random, changes to stamp duty etc., introduction of new laws and repealing of laws without public debate or investigation.
• Malpractices in Government Departments - especially the Land Registries.

Deterioration in land policies: has diminished the value of land ownership. Many authorities, such as Pradeshiya Sabhas, the Road Development Authority, etc. have the right to stake a claim on any land whatsoever at any given time by a gazette notification. Their regulations are not freely available to the public.

This creates a situation where without advance notice, owners could lose their rights. Laws relating to lands are enacted and repealed without proper investigation of the consequences they have on entrepreneurship and the economy. These conditions have resulted in a vast number of rejected titles or in other words, lands that are not credit worthy. Owners cannot mortgage nor can they sell the land - they are dead capital.

The effectiveness of the new Titling Act to overcome some of the problems we face today, depends on how successfully it is implemented and whether all the above have been taken into consideration. For the next twenty years, until the Act is fully established, there can be serious threats to land ownerships due to incorrect implementation of administrative procedures, especially in Land Registries.

Here are a few simple precautions that all land owners must take to safeguard ownership:

Do not give your deeds: Title deeds of your lands or photocopies of title deeds should not be given to a prospective purchaser, broker or to anyone without the intervention of a notary or a lawyer. Deeds contain relevant particulars such as deed numbers, registration references and the signatures of parties which are used by those who forge deeds.

The stamp duty: Pay stamp duty directly to the banks when purchasing or gifting property. The public may not be aware there is provision for stamp duty on Transfer Deeds and Gift Deeds to be paid to banks.

This enables you to receive two receipts, one to be pasted on the deed in lieu of pasting stamps and the other to be retained for proof of payment of stamp duty for your land.

Stamps affixed on deeds are sometimes removed at the Land Registry and reaffixed on forged deeds.

Pasting of stamps on deeds came into operation when stamp duty was low requiring only a few stamps to be affixed on a deed. Presently stamp duty is high, thus at least twenty to thirty stamps are required to be pasted on a deed thus obscuring the deed.The deed which bears the stamp duty is directly submitted to the Land Registry by the notary and the owner does not have any proof of payment of stamp duty. Therefore it would be advisable to follow the new procedure for payment of stamp duty or retain a photocopy of the deed bearing the stamps.

Obtain a copy of the Certified Extract: A deed is given to you by your notary or lawyer after registration. In addition, obtain what is called a Certified Extract from the Land Registry. This document is proof of correct registration, evidence of title to your land in the event of subsequent forgery. This is an inexpensive document which could be obtained from the Land Registry.

Exercise of possessory rights: Any land should not be kept idling for a long period. A watcher kept for a long period is also dangerous. Litigation is presently in progress where watchers connive to prepare deeds to validate title to land declaring long prescriptive possession.

Powers of Attorney given to parties to deal with land should be limited for a purpose and a period. Cancellation of power of attorney involves a lengthy procedure.

Register your name in the Local Authority or Pradeshiya Sabha as the owner.

Purchase land only on plans that are approved by the Local Authority. They affix their seal on plans after approval.

Quarterly taxes and utility bills for electricity, water, telephone etc should be paid in the name of the owner by the owner. Tenants, holders of power of attorney or third parties should not be permitted to have receipts in their names.

Finally, never leave a land vacant without at least, a barbed-wire fence or a boundary wall around it. A few visits a month are also necessary.

The fine line between civilized society and rampant abuse of power is respect for the rule of law. Therefore public vigilance and knowledge of the law is the best remedy to prevent abuse of power.