{"id":61797,"date":"2021-04-13T02:21:03","date_gmt":"2021-04-13T02:21:03","guid":{"rendered":"https:\/\/websitedesigns.com.au\/elankanew\/?p=61797"},"modified":"2021-04-13T02:21:03","modified_gmt":"2021-04-13T02:21:03","slug":"eland-registration-in-sri-lanka-a-pathway-for-the-mother-of-all-scams","status":"publish","type":"post","link":"https:\/\/websitedesigns.com.au\/elankanew\/eland-registration-in-sri-lanka-a-pathway-for-the-mother-of-all-scams\/","title":{"rendered":"eLand Registration in Sri Lanka; A pathway for the mother of all scams?"},"content":{"rendered":"

eLand Registration in Sri Lanka; A pathway for the mother of all scams?\u00a0By Raj Gonsalkorale<\/span><\/b><\/span><\/h1>\n

 <\/p>\n

\"eLand<\/p>\n

Glory of technology is such that no one will object to introducing technology to land registries.\u00a0 But will the land owners have their rights protected? W<\/span><\/i>e only admire the glory of technology as a duck gliding on water without seeing the paddling underneath.\u00a0<\/span>Land owners need to be alerted that\u00a0their ownership rights may not be available in the land registry<\/span><\/i><\/span><\/p>\n

By Raj Gonsalkorale<\/span><\/strong><\/p>\n

eLand\u00a0registration will soon be operating the land registration system to secure ownership. However, it\u00a0can be a source of ownership insecurity, without consumer protection laws. The risk involved in the absence of\u00a0consumer protection laws\u00a0to protect owners was demonstrated in USA,\u00a0when New York News Paper prepared a forged deed to transfer the Empire State Building. \u00a0\u00a0The forged document was registered in 90 minutes, the land registry had no laws to protect owners, therefore did not recognize that 102-story Art Deco skyscraper was being sold\u00a0to a new owner when the information in the deed was\u00a0laughable: Original; \u201cKing Kong\u201d star\u00a0Fay Wray\u00a0listed as a witness to the deed and the notary\u2019s\u00a0name was a\u00a0bank robber\u2019s name Willie Sutton. \u00a0 <\/span>https:\/\/www.nydailynews.com\/news\/money\/90-minutes-daily-news-steal-empire-state-building-article-1.353477<\/span><\/a><\/span>] – Kirthimala Gunasekera, Senior Lawyer writing in LankaWeb<\/span><\/span><\/p>\n

\u00a0Ms Gunasekera goes onto say \u201cIn modernization and introduction of\u00a0technology to land registries consumer protection law takes a leading role in many countries.\u00a0 Professors of law have published many books on the subject.\u00a0 It needs mentioning here that\u00a0professional practice and land registry laws with\u00a0steadfast and\u00a0limitless laws and rules\u00a0for\u00a0identification of owners for consumer protection\u00a0has been the reason for the success\u00a0of eRegisters in\u00a0Australia, New Zealand, Singapore and UK. Where the law requires\u00a0thorough identification checks and strict requirements for witnessing documents before the execution of\u00a0transactions as given in this article. In Sri Lanka attention was not given\u00a0\u00a0 to introduce the international laws that\u00a0\u00a0 protect owners in an eRegister, even when land fraud is extremely pervasive. However, we are fast moving to introduce technology to land registries\u201d.\u00a0 \u00a0<\/span><\/p>\n

Unreliable source documents that makes the eRegister unreliable\u00a0<\/b><\/span><\/p>\n

In Sri Lanka, the problem with registering land electronically is that it is using as source documents from an unreliable register\u00a0that commenced in 1864. The registration system has opted to circumvent due diligence with a quick fix solution scanning the names of owners from\u00a0an unreliable old register which 1] is a non-compulsory register- where all the ownership rights of land owners are not registered. 2] is torn, mutilated\u00a0and in a state of disrepair as the register had not been revised since \u00a0\u00a01864, and above all, it has fraudulent\u00a0entries,\u00a0according to the Registrar General himself who stated publicly that it has 50% forged deeds.<\/span><\/p>\n

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

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

Owners who have not checked the land registry after they had purchased lands or houses need to\u00a0check their ownership status\u00a0in\u00a0land registries to be safe.<\/b><\/span><\/p>\n

In this black comedy, the Registrar General in his letter dated 6.04.2016 to the Prime Minister\u2019s office confirms that\u00a0that the registration of\u00a0deeds is not compulsory under the law governing registration as the land registry is not\u00a0the place to determine ownership. He explained in his letter that the folios of the old register\u00a0does not give\u00a0conclusive evidence of ownership and that ownership to land under the present law has to be determined by examining the deeds of owners.<\/span><\/p>\n

The World Bank examining and researching the land laws of Sri Lanka, considering that Sri Lanka does not have a permanent research group as in other nations, was aware that Sri Lanka did not have a reliable register to introduce the\u00a0eRegister.\u00a0 A Grant in the amount of SDR 3.9 million (US$ 5.0 million equivalent) was given to the government of Sri Lanka for a land titling and related services project march 22, 2007. <\/span>http:\/\/documents1.worldbank.org\/curated\/en\/293851468308634964\/pdf\/ICR0000190.pdf<\/span><\/a><\/span>.<\/span>\u00a0\u00a0<\/span><\/span><\/p>\n

Bim Saviya land registration system, legislated in 1998 at the behest of the World Bank, and without consultation with Sri Lankan lawyers, and introduced in 2007, has been a complete failure. The Government Title Commissioners Report for 2019 states that it will take over 100 years to complete the register. \u00a0\u00a0<\/span>(<\/span><\/i>https:\/\/www.parliament.lk\/uploads\/documents\/paperspresented\/performance-report-land-title-settlement-department-2019.pdf<\/span><\/i><\/a><\/span>].<\/span><\/i>\u00a0<\/span><\/span><\/p>\n

The Bim Saviya is unsuitable for Sri Lanka as the owners\u2019 right to access court if the lands are affected by forgery or fraud have been\u00a0taken away by this law. In lieu Government has agreed to compensate owners from an Assurance Fund<\/span><\/p>\n

Can lawyers help? No they are helpless\u00a0<\/b><\/span><\/p>\n

A case in point is a colleague of a lawyer who was arranging to sell her land and had been\u00a0told by the lawyer\u00a0that her ownership is not recorded in the land registry and her land is not marketable. She reached out to the officials to see whether Bim Saviya could help, and she had been told that it may be possible but it will take over one year to do so. Even lawyers have found that they are helpless, the land ownership\u00a0had been\u00a0misplaced, and the land registry had informed in writing that\u00a0folios were damaged. The effect of this is that only land deeds where folios are not damaged will be included in the eRegister. This, along with the Registrar Generals contention that s much as 50% of deeds could be fraudulent means that what would be transferred to the eRegsiter are mostly fraudulent deeds. \u00a0<\/span><\/p>\n

If the Registrar is not responsible to owners, is it worth registering land?<\/b><\/span><\/p>\n

\u00a0In Sri Lanka the Registrar is not responsible and has no authority other than to register deeds in the existing decrepit register irrespective of whether they are valid or invalid deeds.\u00a0The present law is that the Registrar is not responsible for the validity of deeds that are registered as per Section 7 of the Registration of Documents Ordinance. For that matter even if a fraudster declares he is the owner with a notarised deed called a Deed of Declaration, the Registrar will register the deed of declaration to displace the true owner, who had paid good money for the land. The Registrar cannot be sued for registering fraudulent deeds to displace owners\u00a0as in other nations. Yes, we only admire the glory of technology as a duck gliding on water without seeing the paddling underneath.\u00a0\u00a0<\/span><\/p>\n

It needs to be mentioned here that all countries where the eRegister\u00a0is a success has enacted consumer protection laws [In\u00a0Australia, New Zeeland, Singapore and UK].\u00a0 The Registrars have quasi-judicial powers to check owners\u2019 identity before removing and replacing\u00a0owners\u00a0in the eRegister, and the Registrar has the full power and authority to reject forged invalid deeds.<\/span><\/p>\n

\u00a0Prior to proceeding with this easy ladder to furthering land fraud, steps have to be taken to ascertain the true status of the existing register and a team of lawyers\u00a0must be appointed to advise the Task Force that is in charge\u00a0to bring in consumer protection law recognised internationally in order to protect land owners and buyers from fraud.\u00a0<\/span>\u00a0<\/span><\/p>\n

The Minister of Justice is urged to direct the Task Force responsible for introducing\u00a0the eRegister to immediately make a public announcement at least \u00a0to alert owners to look into their rights in the \u00a0\u00a0existing register, and make sure their rights are \u00a0included in the old register. \u00a0\u00a0<\/span><\/p>\n

A public announcement is necessary as the eRegister\u00a0<\/b><\/span><\/p>\n

1] Will exclude owners who have unregistered \u00a0\u00a0ownership deeds, gifts, life interest, lease hold interest, servitudes, Agreements to sell\u00a0etc.<\/span><\/p>\n

2] Will exclude those who have their extracts damaged \u00a0\u00a0\u00a0A public announcement is essential\u00a0for owners to immediately\u00a0make their application under the Ordinance 18 of 1945 to reconstruct the damaged mutilated folios. \u00a0\u00a0The Registrar\u00a0\u00a0 has power\u00a0\u00a0 under the \u00a0\u00a0Ordinance 18 of 1945\u00a0to prepare and reconstruct the folios to\u00a0re instate the names of owners.<\/span><\/p>\n

3] Will include fraudulent owners in lieu of the true owners. As owners believe that deeds in their possession will protect their rights and be automatically get registered in the e register.\u00a0\u00a0<\/span><\/p>\n

This is an essential pre requisite in order to ensure that the source material that is to be used in the eRegister is authentic, and the rights of land owners is protected.\u00a0\u00a0<\/span><\/p>\n

Technology must protect owners \u00a0\u00a0from land fraud and it should not advantage fraudsters.\u00a0<\/b><\/span><\/p>\n

ICTA [ Information Communication Technology Agency] and the Government Task force responsible for the eRegister need to look into this serious matter as technology should be installed to protect owners, not fraudsters. Assessment of fraud and strenuous research for legal solutions to prevent fraud had been the priority in all countries, before introducing an eRegister.\u00a0Ms Gunasekera in her article had mentioned them. Sri Lanka should\u00a0make use of their research as owners require protection not mere speed of registration which will be beneficial to fraudsters as shown in the demonstration by USA\u00a0<\/span><\/p>\n

It is time that the Minister of Justice took the leadership\u00a0<\/span><\/p>\n

    \n
  1. To preserve the Section 23 of the Electronic Transaction Act 19 of 2006 which states that the Act 19 does not apply to land transactions and a valid paper deed is essential to own land, especially when there are no laws to protect owners in a registry, a paper deed becomes essential and\u00a0<\/span><\/li>\n
  2. To repeal the divine loophole available for fraudsters in the Bim Saviya law given in Section 33, which states that the eRegister is conclusive evidence of ownership that cannot be questioned in a court of law. This takes away the fundamental right of an owner to obtain redress from court when affected by fraud, in other words give up their rights to the fraudulent owner. \u00a0<\/span><\/li>\n<\/ol>\n

    It is sound advice for the Minister of Justice, in the arena of land law and land registration, to emulate Dutch philosopher Desiderius Erasmus, who in 1500 coined the phrase \u201cprevention is better than cure\u201d, and take firm, affirmative action to prevent what could become a massive scam, and besides that, an unprecedented human rights violation.\u00a0<\/b><\/span><\/p>\n

     <\/p>\n","protected":false},"excerpt":{"rendered":"

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