The complexities of Roman-Dutch law as it applies to land
Consumer Concerns
Eileen Cox
Stabroek News
November 16, 2003
A concerned consumer asked me to warn persons who purchased land that the sale was subject to Roman-Dutch law and that they should obtain transport for the land and not rely on receipts that they obtained from the vendors. He advised that I should consult Dr Fenton Ramsahoye author of The Development of Land Law in British Guiana for an opinion. I took his advice. Dr Ramsahoye kindly consented, so here it is.
It should be noted, however, that what Dr Ramsahoye has written about the land law does not apply to all areas of the country. There are now two systems in operation, and some areas, such as the new housing schemes, come under the Land Registry Act, which provides for the issuing of titles. Next week we will tell you what that act says, and to which parts of the country it applies.
Roman-Dutch law and
practice concerning land
In 1917 when the Roman-Dutch law was abolished by the Civil Law Ordinance in Guyana there were reservations in respect of land law which has continued to be governed by Roman-Dutch principles. Roman-Dutch law is not exclusively applied because there has been a mixture of principles drawn from English law on the authority of the Civil Law Ordinance itself.
One thing is clear and it is that the lawmakers did not want to introduce into Guyana the English law relating to land, so they expressly excluded it but they did introduce certain English common law principles and English equity, which apply to both immovable and movable property. The result is that the Guyana law is a hybrid of Roman-Dutch and English law and in consequence is extremely complex.
However, most of the transactions done are simple and relatively unsophisticated, i.e. purchase and sale, mortgaging and leasing, and the legal profession is fairly familiar with the principles and practice which apply in these cases. Conveyancing is done in court after prior advertisement. This system of publication is unknown in the western world where transactions are completed by paperwork without publicity.
Sale and purchase
English law is held not to apply to make the vendor a trustee for the purchaser when an agreement of sale is signed. The law took a wrong turn here because there is nothing to prevent the English rule applying, but the judges in Guyana did not see it that way.
If, however, a vendor tries to sell or mortgage land, opposition can be entered to the passing of transport followed by an action to declare the opposition legal.
In a straightforward case, a specific performance action under the English law of contract and English equity can be brought by a party to the agreement. The conveyancing system depends upon advertisement, and anyone with an interest in the land or a creditor of the vendor, may oppose when the advertisement is published. What types of interest will suffice to support an opposition is a matter of much complexity. Where an unlawful opposition is entered I do not think that the Guyana law gives damages to the victim who may have suffered serious loss thereby.
Mortgages
The law of mortgages is Roman-Dutch. The mortgage is itself a judgment. It contains what is called a voluntary and willing condemnation which is included in the mortgage deed. This clause in the mortgage deed operates as a judgment for the sum repayable to redeem the mortgage. Mortgages have to be advertised and an existing creditor or someone with an interest in the land being mortgaged may oppose it. He can maintain opposition until his claim is satisfied.
Leases
Long leases over 21 years have to be advertised like transports and mortgages and can be opposed. Leasehold rights are governed not by Roman-Dutch law but by the English law relating to leases because of the provisions of the Civil Law Ordinance itself, but the manner of creating and passing long leases is still Roman-Dutch. They are passed before the court after advertisement in the same manner as transports and mortgages.
Rights
There are many rights over land which are still governed by Roman-Dutch law, e.g. rights of way, drainage and other rights. The Civil Law Ordinance provides for these in respect of which Roman-Dutch law is retained.
Vulnerability
An owner may be liable for rates. There is a system of parate execution which can be enforced against the property at any time, to secure recovery of the rates by a judicial sale. An owner may be a simple judgment debtor. The creditor can seek an order for execution and judicial sale to enforce the judgment. Courts may make orders concerning property as between husband and wife in divorce proceedings, and the right of the owner by transport could be affected by such an order, thereby disabling him from dealing with the property in a manner inconsistent with the court order. There may be other ways in which the owner is vulnerable including, vulnerability to claims by prescription made by persons occupying the land.
Most transactions concerning land are sales and mortgages. People who pay deposits have no rights over the property itself. They must wait until the transport is passed. The deposit is, however, material in contract law which is English law and which governs the rights of the parties under the sale agreement. While a vendor remains owner, he is subject to liabilities which the law imposes and he may not escape these by making an agreement of sale to defeat his obligations. If a contract is not carried out, a purchaser, who is not at fault, can sue for the return of his deposit and damages. If the holder of the title becomes bankrupt meanwhile, he may get an empty judgment. The English practice of putting the deposit in the hands of a stakeholder is not applied in Guyana. The Guyana practice of handing over the deposit to the seller is a risky practice in those cases where the deposit taker fails to perform.
The entire system of law and practice is complex but, with an undeveloped economy, the transactions tend to be simple in respect of land in full ownership. Even so, the transactions involve money and it will always be prudent to have the services of practitioners who are knowledgeable and experienced in the field. To understand the intricacies of Roman-Dutch law one needs to have some knowledge of Latin and Roman law. The opportunity was available to barristers trained in England. It is probably true to say that locally trained lawyers are denied this kind of training.
As promised last week, I now publish some of the provisions of the Land Registry Act, Chapter 5:02, which applies to some areas of Guyana.
This Act is to provide for the registration of land and for matters therewith, and is cited as the Land Registry Act.
To begin the process of having land registered under the Land Registry Act, the Commissioner of Lands and Surveys makes an application to the Registrar of Lands to register the parcels of land in the name of the state. A Certificate of Title is issued to the owner of each parcel.
The difference in procedure for titles under the Deeds Registry and under the Land Registry is given as follows:
Deeds Registry
Publication in Gazette, Transport Deeds typed in Registry, opposition by creditor allowed, execution by parties beforecourt or Registrar
Land Registry
Parties appear at the Registry, instant signature, almost instant registration. No publication in Gazette - no opposition but creditor or interested party may register judgment charge, or caveat beforehand.
Section 1 (2) of the Act states:
The minister shall appoint the day or days on which this Act or any parts or provisions thereof shall come into force in Guyana or any portion thereof and may restrict or extend the application of any parts or provisions of this Act to any portion of Guyana in such manner as he thinks fit.
Other provisions follow:
3(1) Except as otherwise provided in this Act, no other Act and no regulations, rules, laws, practice or procedure relating to land shall apply to registered land so far as they are inconsistent with this Act, and in particular but without prejudice to the generality of the foregoing, the law and practice relating to conventional mortgages or hypothecs of immovable property and to easements, profits a prendre or real servitudes and to oppositions shall not apply to registered land, but unless a contrary intention appears nothing contained in this Act shall be construed as permitting any dealing or other act which is forbidden under the express provisions of any other Act or as overriding any provision of any other Act requiring the consent or approval of any authority or person to any dealing or other act.
(2) Except as otherwise provided in this Act the Deeds Registry shall not apply to registered land and, unless the context otherwise requires, reference in any Act or other law to the Deeds Registry Act or to the Deeds Registry or to the Registrar of Deeds in relation to any land or in relation to any dealing or instrument affecting any land shall, if the land is registered land, be deemed to be a reference to this Act or to the land registry or to the Registrar of Lands as the case may be.
4. (1) The objects of this Act are to simplify the title to land and facilitate dealing therewith and to secure indefeasibility of title to all registered proprietors, except in certain cases specified in this Act.
(2) this Act shall be construed in such manner as shall best give effect to the objects hereinbefore declared.
6. (1) For the purposes of this Act the Minister may by order
(a) divide Guyana or any portion thereof into land registration district.
(b) constitute in any part of Guyana a land registration district or districts;
(c) distinguish the districts by the name or number he thinks proper; and
(d) vary the limits of any district.
(2) Every such order shall be published in the Gazette, and shall take effect on the publication thereof or at any other time mentioned therein.
7. (1) There shall be a Registrar of Lands and a Deputy Registrar of Lands, who shall be the persons for the time being holding the offices of Registrar of Deeds and Deputy Registrar of Deeds respectively.
(2) There shall be such number of assistant registrars and other officers as may be necessary for the purposes of this Act.
8. (1) There shall be established and maintained in each district a land registry, and land registry in Georgetown shall be the Principal Land Registry;
(2) The Registrar shall maintain in each land registry a register for the registration of the title to land in the district in respect of which such land registry has been established and for the recording of dealings under this Act.
(3) Every land registry shall have a seal for the sealing of documents.
11. There shall be such number of Commissioners of Title as may be necessary for the purpose of this Act.
15. (1) A Commissioner shall have jurisdiction in all claims made under this Act relating to land situated in the district or districts for which a Land Court is established with powers to determine any question that may need determination in connection with such claims.
(2) A Commissioner shall have all the powers of a judge of the Court in respect of procedure in a Land Court, including the summoning of and administering of oaths to witnesses, assessors, land valuers, appraisers and other persons whose advice, assistance or evidence shall seem to him to be necessary, the production of instruments and records and the due and proper administration of justice and order in the said court.
More on land law
Again, those who purchase land under the Deeds Registry Act are warned that receipts for payment do not give ownership. Transport for the land must be passed before ownership can be claimed.
In front of me are some Brief Notes on Lectures Given for Sworn Clerks and Notaries Public Examination, 1998. The notes were prepared by Mr Leon O Rockliffe.
Mr Rockliffe refers to the Roman-Dutch Law, a system of law operating in British Guiana until January 1, 1917. From that date onwards it was preserved for land - transports, mortgages, etc, only - by the Civil Law Act (Cap 6:01). English Common Law applies to all other matters.
Some consumers are puzzled that land is sometimes referred to as state land and sometimes described as government land. Mr Rockcliffe sets out the types of land tenure thus:
Crown Land i.e. land owned by the British sovereign (King or Queen of England) until independence, May 26, 1966. It was governed by the Crown Lands Ordinance. It became known as State Land after independence.
State Land, land which was once Crown Land but which passed to the State (Guyana) upon independence. This land is governed by the State Lands Act (Cap 62.01). Absolute and provisional grants, licences, leases are issued for agricultural, cattle grazing, industrial and wood-cutting purposes by the President of Guyana. It is administered by the Com-missioner of Lands and Surveys.
Government Land: This is owned by transport by the government or state and administered under the Deeds Registry Act like any privately-held land. It is merely a descriptive term which has no special legal significance.
Colony Land: This is land held by transport in the name of 'The Colony of British Guiana' or 'The inhabitants of the Colony of British Guiana' before May 26, 1966. It would now be known as Government Land, since Guyana ceased to be a colony on gaining independence.
Private Land: This is land held by transport by any private individual, group or corporate body.
Government Land and Private Land are administered under the Deeds Registry Act.
Last week we looked at the law as it applies to land held not under the Deeds Registry Act, but under the Land Registry Act (Cap 5:02). (Remember there are two systems of land ownership co-existing in Guyana.)
A comparison of land transactions under the two acts is given below: