Digitalisation with laws that have no protection for owners – beware of pitfalls

All owners must preserve their paper deeds as there are no solutions for fraud forgery or cyber crime 

By Radhika Maheshwaran

Reference the article by Citizen Perera on the IMF attempting to destroy the country’s deeds and archival records while relying solely on a digital register; yes, as the article informs, the IMF wants our land registries digitalised as given in Number 15 IMF Priority Recommendations. 

Are we keeping up with the Joneses? The digital register is prepared by directly copying names of owners from an unreliable register, governed by a law enacted in 1927, where 1] forged deeds are registered 2] the Registrar has no power to reject invalid forged deeds 3] the Registrar has no power even to rectify mistakes. For example, if the name was entered as Wijewardena when the owners name was Wijesooriya it took over three months to rectify the mistake. Ord 23 of 1927 has a very old system for correction of errors which require affidavits, as in 1927, with an appeal to the Registrar General. 

The Registrar General, by letter dated 6 April 2016, [Ref RG/TRB/03/278], explained to the Prime Minister this serious lacuna, when he informed him that the registry under the Ord 23 of 1927 is not a register to determine owners. 

Time for owners to be vigilant

It is therefore a time for all owners, to search the register, as you would not know unless you do a search whether your ownership is copied correctly to the digital register. 

When the World Bank pointed out the above defects of Ord 23 of 1927 a new law named Bim Saviya under Act 21 of 1998 was enacted to operate the digital register

Unfortunately those who drafted the legislation did not address any of the above issues; mainly to introduce laws to make the register compulsory, comprehensive and fraud-free by empowering the Registrar to reject invalid forged deeds. 

The Act 21 introduced a 2nd register called by the name, Bim Saviya. This has created a series of issues as the Act 21, changed Sri Lanka’s property law to that of Australia, where all owners of Sri Lanka cannot be registered [vide report of Committee appointed by the Ministry of Justice in 2023 which declares that all owners cannot be included]. 

Who drafted the Act, is a mystery. It is like playing Russian roulette for owners who must escape fraud, from both registers.

The digital register if governed by Act 21 of 1998; the owners’ rights will be diminished as follows:

1. Under Section 33 of the Act, owners who are affected by fraud or forgery cannot go to court to regain their rights. The remedy for an owner is to obtain compensation from an Assurance Fund which the Government has introduced under Section 66. [The Assurance funds of land registries in Australia have million dollars, collected over a century, to facilitate this law] 

The Government must learn from other nations that insurance schemes for fraud on a digital register had failed. Example, UK requires solicitors to compensate owners with their personal insurance, as the Government cannot sustain compensation in the light of high property values. A recent case on this law can be seen in Dreamvar (UK) Ltd. v Mishcon de Reya and Mary Monson Solicitors Ltd. [1] and P&P Property Ltd. v Owen White & Catlin LLP [2]. -https://www.kingsleynapley.co.uk/insights/blogs/real-estate-law-blog/property-fraud-after-dreamvar-v-mishcon-de-reya. 

In Malaysia when owners came to court to obtain their rights from fraudsters, the judgments were to allocate the land to fraudsters who are registered in the Digital register and ask the owner to obtain compensation from Insurance Fund of the Land Registry [This can be seen in the apex court judgment of Boonsom Boonyanit vs Andora Properties which allowed the forger to retain the ownership and for the owner to get compensation]. . 

[Before digitalising remove the law that is restricting judicial authority to investigate fraud]

2] Another issue in Act 21 of 1998 is owners have no right for a pedigree chart. To prove ownership, Section 53 of Act 21 of 1998 requires the destruction of the history of owners. 

Destroying the archived 20 million deeds in 48 land registries, will commence soon. The Digital register will have only the present owner. In no country has such an appalling law been introduced as land records form a part of the history of a country. Secure archive solutions are found in all countries. In UK, USA, and Australia, ownership archiving has commenced. Before digitalising, the Government should prepare to preserve and archive all the valuable information of 20 million deeds registered from 1863, one of the oldest registers in the world, to protect owners from cyber-crime which will have no remedy.

The World Bank’s view on the Bim Saviya Act 21 introduced to manage the Digital register. [Please see World Bank report No ICR0000190: Implementation completion and results Report of 22 March 2007]. World Bank says 1] Sri Lanka however was far from ready for a full scale land titling program. The Bank team concluded that the weaknesses in the legal and institutional fronts would need to be resolved before consideration is given to a full land administration project. 2] The deed register presently maintained under the Registration of Documents Ordinance of 1927 is the only data provider relating to the owner’s name for the Bim Saviya and the Digital Register. Despite this obvious lacuna, the old registers remain neglected without any revision; it is an incomprehensive register where the registrar is not responsible to check on the validity of the deeds, forged or invalid. It registers all the deeds that are submitted, irrespective of their validity as provided by Section 7 of the Ordinance. 

A disturbing fact pointed out in the World Bank statement about Act 21 is that nearly all its rural titling programmes in other jurisdictions have achieved poor results. (“A Matter of Title” – http://www.prres.net/Papers/Mills_A_Case_for_Torren’s_system_For_Title_Registration.pdf.

Act 21 of 1998 the World Bank’s ICR report states that Sri Lanka’s titling project introducing the Australian law is a failure. http://documents1.worldbank.org/curated/en/996161474635250504/pdf/000020051-20140617135844.pdf

Legal views published re law governing the digital register – Act 21 of 1998

1.] Opinion of Government committees-erudite lawyers

There were two committees appointed one by the President and another by the Ministry of Justice. Both committees have concluded that the Act 21 of 1998 cannot introduce a compulsory comprehensive register.

2] Lawyers warning not to enact the Australian law Act 21 of 1998 

https://www.sundaytimes.lk/980412/plus9.html. 

A letter to the Ministry of Lands re Act 21 of 1998 and its unsuitability was published by lawyers Mahinda Ellepola, Elmo Perera, Nihal Pieris. Very unfortunately the act was rushed through when the member of the BASL together with Government officials were consulting with the Department of Land Administration, Western Australia (DOLA)

3] View of the Government officials who for over 20 years had failed after a colossal amount had been spent on the project under Act 21 of 1998 to introduce the law to digitalise land ownership. The Performance Report of 2018 by the Government official administering the Australian law states that it will take over 100 years to complete. https://www.parliament.lk/uploads/documents/paperspresented/performance-report-land-title-settlement-department-2018.pdf

IMF document requires digitalisation. Is it under Act 21 of 1998? Are we following the MCC which the government had requested for more funds to follow Act 21? [MCC Agreement states – ‘The Government shall register the absolute land grants in the title registration system – that is Act 21 of 1998].

Cabinet had given a good solution to enact a law for the digital register 

The Cabinet Memorandum bearing No. 20/2100/322/007 of 11.01.21 advises to research to amend the Registration laws researching and referring to other jurisdictions. Specifically mentioned in the Cabinet Memorandum is the South African model which is excellent with documents deeds and quasi judicial power for the Registrar to reject forged deeds. The legal committees had also pointed out the deed system as a plausible solution for compulsory registration not the Australian law [Act 21 of 1998].

Owners be safe with the digital register

As said in the article by Citizen Perera, all owners must preserve their paper deeds as there are no solutions for fraud forgery or cyber crime.

We have arrived at a whack-a-mole situation where the lands will remain unregistered according to the law with additional problems for the judiciary owners and lawyers with an extremely pervasive system of land fraud.