How is ownership of real estate proved?
Real Estate (2nd edition)
2.1 Title to real property is evidenced by registration at the Cayman Islands Land Registry. Certain real property is beyond the scope of the registered land system, such as public roads and coastal waters. Some canals and inland water are however located on registered land parcels.
2.2 The land register for a parcel of land indicates:
(a) whether title is absolute or provisional;
(b) whether title is freehold or leasehold;
(c) whether the land is private or crown land;
(d) the area of the land (approximate size only, unless a fixed boundary survey has been registered);
(e) the name and address of the owner(s);
(f) details of any matters of which the title has the benefit (e.g. appurtenances such as easements, positive covenants etc.); and
(g) details of any matters to which title is subject (e.g. easements, leases, restrictive covenants, financial charges etc.).
2.3 In broad terms, the land register is definitive and supported by a state-backed indemnity, although it can be subject to rectification to deal with matters such as error and fraud. There are other limits to this principle of indefeasibility of title, such as overriding interests and overriding statutes. In addition, indefeasibility of title does not protect a proprietor who has acquired real property absent valuable consideration or from any in personam liabilities.
Ownership is usually proved by a thirty-year uninterrupted, peaceful, unequivocal and publicly known possession of a real estate property.
All agreements relating to the transfer of the ownership of a real estate property or the registration of liens and encumbrances on a real estate property (such as, for example a mortgage or an easement) must be registered at the land registry (service de la publicité foncière) in order to be binding on third parties.
In order to be registered these agreements must be in a notarial form and executed before a notary.
It is usually up to the seller to appoint a notary for a sale of a real estate property. The purchaser is, however, entitled to appoint its own notary and in such a case, the statutory scale fee is shared out between the two notaries. The notary's fee for the sale of a real estate asset is circa 0.8% of the sale price.
Each deed will set out, inter alia, the ‘thirty-year root of title’ by reference to the registered title deeds relating to the property over the past thirty years.
Obtaining from the service de la publicité foncière a land registry search indicating all the registered deeds relating to a real estate property takes several days. It is not possible to consult on-line the land registry file (fichier immobilier).
The ownership of real estate is generally proved by an excerpt from the land register (Grundbuch) which should be up to date and taken from a reliable source or be certified.
The land register is kept at the local court (Amtsgericht) in whose premises the real estate is located. It can be accessed physically or online but is not a public source of information. It may only be accessed if a justified interest can be demonstrated; while the property owner always has a justified interest, the mere wish of a third party to get to know the owner of a property is not sufficient.
The land register is divided into the index (Bestandsverzeichnis) and three sections (Abteilung). The index lists cadastral references to a plot of a land or condominium. The ownership of the real estate is established in section I, in case of co-ownership, also the shares of the co-owners are entered here. Section II of the land register lists the existing encumbrances of the real estate which are subject to registration, for example, easements, rights of pre-emption, priority notices and heritable building rights. In section III mortgages and land charges are registered.
A change of ownership in real estate needs to be registered in section I of the register to be valid. However, in a few cases changes of the ownership, such as succession due to inheritance, can be valid without registration or a wrong register entry could have been made by the registrar. It is therefore possible that there is a difference between the formal land registry entry and the legal ownership. Nevertheless, despite the land register not being a 100% proof of title, a person acting bona fidae can rely on the register entries in section I (with limited exceptions).
Hong Kong operates a deeds registration system for recording transactions in land and property, rather than a title registration system. Ownership of real estate can be registered on a publicly accessible register maintained by the Land Registry. However, registration is not a definitive proof of ownership. Registration in Hong Kong confers only priority on the rights in registered documents. As the records kept are public information, notice is deemed to be given to any party acquiring an interest in the real estate. Registrable documents include deeds, conveyances and other instruments in writing and judgments. Registrable but unregistered documents will be void against any future bona fide purchaser for value or any other deed which is thereafter registered.
Currently, unless otherwise agreed by the vendor and purchaser, proof of title is shown by a vendor showing to a purchaser the Government Lease relating to that land and,
(a) where the grant of Government Lease was less than 15 years from the date of the instant disposition, then all title deeds (e.g. assignment, mortgage, charge) and all documents referred to in such title deeds within this period, or
(b) where the grant of Government Lease was more than 15 years from the date of the instant disposition, then only all such title deeds and all documents referred to in such title deeds within this 15 year period.
Upon completion, all the originals of these documents which are required for proving good title and relate exclusively to the property and certified copies of all other title deeds in the possession of the vendor shall upon the purchaser's request be delivered to the purchaser. In addition, the vendor's solicitor has a duty to answer requisitions raised by the purchaser satisfactorily.
All real properties located in Hungary are registered in the centrally organized land registry system, which is supervised by the Ministry of Agriculture. The land registry system is composed of district land registry offices, which separately maintain local land registers for each village, town, and for the Budapest districts.
The land registry is responsible for registering, maintaining and updating the physical and legal data of all Hungarian real properties, including their basic physical characteristics, their cadastral maps, the rights and obligations as well as the relevant legal facts relating to the properties. All real properties are given a so-called “topographical lot number", by which they are registered in the land registry system.
Important principles of the land registry include that it is open to the public (i.e. “public access”) and that it authentically proves the accuracy of the registered information / rights / facts (i.e. “public credibility”), and as a result, it protects the rights of a good faith party, obtaining rights over a real property based on the information registered in the land registry. Based on the principle of “public access”, the main data kept by the land registry on the so called “property sheets” for all real properties, is accessible for anyone on a paper-based or digital format. Hungarian-language property sheets and maps can be obtained electronically via the land registry’s internet page, however, a subscription agreement must be in place for the use of such electronic database services. The property sheets comprises of three sections as follows: (i) basic physical data of the real property, such as address, area, function, classification of use; (ii) data on (past and present) owners, including the date and legal title of acquiring ownership and (iii) data of (past and present) encumbrances registered onto the real property. In addition, the cadastral map of the real properties can also be requested in a paper or digital form.
Under the principle of public credibility, all rights and facts registered in the land registry shall be deemed to validly exist, unless proven to the contrary (i.e. the registration is definitive proof, but it is possible to overrule the rights registered in the land registry). In case of acquisition of ownership outside the land registry (e.g. by way of succession, marital common property, building on extraneous land, etc.) the ownership title of those who acquired ownership on a “quid pro quo” basis and in good faith are protected against the ownership claims of those who acquired ownership outside the land registry. If an underlying transaction (e.g. sale and purchase agreement) is deemed invalid by the court, the ownership title based on the invalid registration is deleted from the land registry and the original ownership title is reinstated.
Spanish law establishes a title recording system which is intended to provide certainty and publicity as to the ownership of real estate assets. Transfers of real estate assets must be executed in a notarial deed (called "escritura pública") before a Notary Public and recorded at the relevant Land Registry in order for transfers to be enforceable with respect to third parties. Land Registries provide legal notice of ownership, encumbrances and other matters relating to immovable property. Generally any acquisition or conveyance of or encumbrance over real estate assets not registered at the relevant Land Registry has no effect against bona fide third parties. The principle behind this system is to set up an a priori control of the legality of actions by private parties in order to ensure certainty of good title in real estate transactions and reduce the possibility of fraud.
As a general rule, the person who registers title first has a better right to the property than anyone registering title thereafter.
Any transaction for transfer of interest in immovable property is required to be in writing and registered in the office of the “Sub-Registrar of Assurances”. An unregistered document of transfer of interest in immovable property is not admissible in evidence in civil proceedings.
Most land holdings have been surveyed by government authorities and allotted a revenue survey number and issued a “Record of Right” (in case of agricultural lands in Maharashtra) or “Property Register Card” (in case of non-agricultural lands in Maharashtra) and similar documents in other parts of India. These revenue documents record the name of the original owner (at the time of first survey of the land by the government) and subsequent transfers as may have been notified to the authorities. The revenue documents provide prima facie evidence of ownership and devolution of title.
Documents registered in respect of the property in the office of the Sub-Registrar of Assurances and documents issued by the revenue authorities are necessary steps for establishing the ownership of real estate.
However, barring exceptions, an agreement for the transfer of immovable property or an interest therein (which does not itself operate to transfer any interest in land) is not required to be in writing or registered and a suit for specific performance of an oral agreement for sale of immovable property is maintainable.
Also, devolution of title on the demise of the owner and whether the names of all heirs of the deceased have been recorded in the revenue records, should be considered.
The Property Registration Authority (the “PRA”) is the State body responsible for the registration of property transactions in Ireland and the system of registration of title (ownership) to land in Ireland.
The main functions of the PRA are to manage and control the Land Registry and the Registry of Deeds and to promote and extend the registration of ownership of land.
The Land Registry was established in 1892. When ownership is registered in the Land Registry, the deeds are filed with the Land Registry and all relevant particulars concerning the property and its ownership are entered on folios which form the registers maintained in the Land Registry. In conjunction with folios, the Land Registry also maintains maps (referred to as filed plans). Both folios and maps are maintained in electronic form. Owners of registered real estate generally prove their title via the Land Registry folio, which is prima facie evidence of title. The legal owner of the registered property is recorded in part 2 (the ownership section) of the folio. However, mapping is not definitive as the Land Registry operate a non-conclusive boundary system.
The Registry of Deeds was established in 1707 to provide a system of voluntary registration for deeds affecting land and to give priority to registered deeds over unregistered but registrable deeds. There is no statutory requirement to register a document in the Registry of Deeds, but failure to do so may result in a loss of priority. The effect of registration is generally to govern priorities between documents dealing with the same piece of land. The primary function of the Registry of Deeds is to provide a system of recording the existence of deeds affecting unregistered property. When a deed is lodged in the Registry of Deeds it must be accompanied by the relevant application form (in a prescribed form) which is a summary of the essential information of the relevant deed. The registration of a deed in the Registry of Deeds alone is not proof of ownership. The underlying title must also be fully investigated to determine ownership.
Any unregistered property (Registry of Deeds) purchased in the State after 1 June 2011 is subject to compulsory first registration in the Land Registry. Registration is also compulsory where land is bought under the Land Purchase Acts or where land is acquired after 1 January 1967 by a statutory authority.
In Russia, the ownership title to real estate is proved by its state registration in the public register (Unified State Register of Real Estate) operated by the Federal Service for State Registration, Cadastre and Cartography (known as Rosreestr).
The information from Rosreestr is largely publicly accessible and can be obtained promptly and for a low fee. An extract from the register can be obtained in an electronic form (at the official website of Rosreestr, available at: https://rosreestr.ru/site/en/) or in hardcopy based on the address or cadastral number of the respective property (but not based on the owner’s name/identity).
However, it is possible to challenge the validity of entries in the public register by reference to various documents, such as a real estate sales contract. Further, property rights created before 1998 are valid without registration and in this case any evidence (contracts and administrative acts) can be used to prove ownership. Therefore, the entries in the public register are not sufficiently reliable, and extensive due diligence checks based on various documents (including prior real estate sale contracts) are generally required during real estate due diligence to verify the seller’s title.
The proof of ownership of any real estate is solely given by the registration contained at the competent land registry. Land registries provide, upon request, official excerpts of the land register for any specific plot of land. Apart from the name of the owner(s) and the type of ownership, such excerpts will notably contain the registration number of the plot, its location and size, as well as any easement, encumbrance and/or lien, such as any mortgage, registered on such plot. Plans of the land plot, and in most cases of any building contained on such plot, are also available at the land registry.
As mentioned above, there are three different land registration systems in UK, the English and Welsh system, the Scottish system and the Northern Irish system. Our answers to the questions in this Guide are limited to land situated in England and Wales.
Land in England and Wales is a mix of registered land (which is registered on a publicly available government register) and unregistered land. The vast majority of land is now registered. Most of the unregistered land is owned by historic estates or governmental bodies. Unregistered land must be registered at the Land Registry if is sold. It is therefore uncommon to come across unregistered land in commercial transactions. For this reason we have limited our answers to the questions in this Guide to registered land.
Proof of ownership to registered land is by reference to the register. The register is an electronic register, which lists, in particular, the registered owner/s, all registered encumbrances (e.g. mortgages and leases) and rights and includes a plan showing the extent of the registered land. Each registered interest (see Q4 below) is given a unique title number. An official copy of the register for each title number can be obtained online for a small administrative fee. In broad terms, the register is definitive although in some circumstances it can be subject to "rectification" to deal with matters such as errors and fraud.
Compensation is potentially payable by the Land Registry in the cases where there are errors in the register.
There is no uniform land registration system across the entire U.S. to verify ownership of real property. Instead, recording systems have been adopted on a state-by-state basis, and each county (or "parishes" or "boroughs" in Louisiana and Alaska, respectively) within each state has its own recorder's office for evidencing ownership and other interests in real property. While there are similarities among the rules of each such recording system and recorder's office, such rules vary by county and it is therefore important to ensure that any instruments that are intended to be recorded comply with the rules of the applicable recorder's office.
In order to confirm ownership of real property in the U.S., it is therefore necessary to perform a title search of the real estate records in the county where the applicable property is located. Electronic availability of such records varies by county and, if available, such records are typically only available from a certain date, and therefore, a search of the physical records of the applicable recorder's office is almost always necessary. It is important to note, however, that with few exceptions, a search of a county's real estate records does not guarantee that the owner appearing of record in such search is actually the owner of the property.
As such, prospective purchasers or lenders in U.S. real estate transactions routinely engage a title insurance company to perform a title search on their behalf and, at the time of closing, purchase insurance from a title insurance company to cover the ownership of the property and the state of title thereof. Once engaged, the title insurance company will examine the real estate and other records and produce a title report which discloses, among other things, the record owner, as well as any interests to which such record owner's title is subject, such as leaseholds, security interests, easements, restrictive covenants, and other liens and encumbrances.
It is important to note, however, that a title report by itself is not an insurance policy and therefore cannot be relied on in a legal sense; it merely provides an indication as to what the title insurance company believes is the state of title. As such, prospective purchasers and lenders in U.S. real estate transactions almost always purchase title insurance (the cost of which is paid for once, at the time of the closing and, in the case of a loan, is paid for by the borrower), which insures that title to the property is in the name of the insured, and provides coverage against, among other things, any defects, liens or encumbrances on title, other than those noted in the policy. The principal benefit of purchasing a title insurance policy is to cover claims that arise after closing and which threaten or impair the insured's interest in the real property and, in such instance, the title insurance company will pay or dispose of the claim in accordance with the terms of the policy. A title insurance policy also covers against the risk of forged documents and, in most jurisdictions, matters that arise between the date of closing and the date that the applicable instrument is recorded in the real estate records. The premium for title insurance is based on the insured amount (along with the cost of additional coverage, as applicable), is negotiable in some states and is fixed by statute in other states.
Title to real estate is evidenced by a public deed granted before a notary public and recorded with the corresponding Public Registry of Property (“Public Registry”). Each Public Registry is managed by the local government authority, usually the city or municipality where the real estate is located.
The notary public granting the public deed, which constitutes evidence of title to the real property, delivers the deed to the Public Registry for registration. The public deed is then granted a record number, which serves as evidence of ownership to third parties.
In all States, except Quintana Roo, recording the public deed with the Public Registry has a declarative effect, this is, it evidences to third parties consulting the Public Registry who owns the property. Only in the State of Quintana Roo, however, recording of title is mandatory to perfect conveyance of property, which means that title transfers occur only upon the public deed being properly recorded.
Exceptionally, title to real estate can also be evidenced by judicial resolutions (i.e. adverse possession) or agrarian certificates regarding certain “ejido” land transactions.
In Peru, the transfer of real property occurs with the sole obligation of the owner to convey the asset (Section 949 of the Civil Code), unless otherwise provided for or agreed. The law does not impose any minimum formal requirements on the sale of real estate and, therefore, ownership can be proven by any means.
Although filing with the Registrar is voluntary (it does not entail the creation of rights), it provides parties utmost protection on the basis of the presumption of knowledge since it ensures the enforceability of the right against all third parties, not only against the grantor.
In this connection, ownership rights over properties filed with Public Registries, are usually proven through their registration in the appropriate electronic entry.
The title to real estate is evidenced by registration in the land register. In Turkey, each real estate is registered before the land registry where the real estate is located. The land registry allocates a separate page for each real estate which includes information regarding the surface areas, block, section numbers of the parcel, legal owners, any encumbrances, annotations, price and undertakings etc. The land register is managed by the General Directorate of Land Registry and Cadastre set up under the Ministry of Environment and Urbanization.
Regulations related to the real estate fully respects the land registry records as evidence of property ownership and the rights of bona fide third parties are protected under the Civil Code in case they acquire the ownership (or any other rights in rem) by relying on the records in the land registry. The government will be liable for losses of these third parties due to incorrect registrations in the land registry.
By means of appointment of a notary public in order to carry out the appropriate Real Estate Register’s investigations and to provide an updated twenty-year notarial report (relazione notarile ventennale) attesting and fully clarifying the ownership title to the asset, according to the “continuity of filings” rule, i.e. an uninterrupted chain of ownership whereby all the previous acquisition deeds proved to have been filed properly.
The land registry office keeps a register of all freehold title of immovable property. Each owner of a freehold right in immovable property is issued with a title deed. This serves as definite proof of ownership of the freehold right in the immovable property.
There is a land registry department for each town. All the departments are interconnected and are using the same computerized system. Furthermore, files in relation to various processes that have taken place or are taking place, in relation to all the freehold immovable properties are held in the land registry departments.
New registrations (titles) are being created very often. For example, a plot may be divided into smaller plots in which case new separate titles are issued for the smaller plots and the first original title ceases to exist. Another example is when a block of apartments and shops is built in a plot. At the end of the process, new separate title deeds will be issued for each apartment and shop and the original title deed of the plot will cease to exist.
The purchaser of a property that does not yet have a separate title deed (for example while the process of issuing separate title deeds for the apartments and shops is still pending), ensures that the right to become the freehold owner of the property is protected by filing the contract at the land registry for “specific performance” purposes. With this filing of the contract at the land registry, an encumbrance in created which burdens the title deed of the original title until the separate title deed for the property is issued. A reference number is given and again the land registry keeps a record of these “specific performance” registrations.
The contracts of purchase can be assigned to third parties. The assignee is entitled to file the assignment at the land registry for specific performance purposes and the encumbrance created with the original contract benefits the assignee. The land registry keeps records of such filed assignments.
Furthermore, the land registry keeps record of leasehold interests in immovable property and of trusts connected with immovable property.
In practice, the parties rely on the registration of real property. This is because, in principle, any transfer or creation of ownership or any other real rights must not be asserted against third parties unless they are registered in accordance with the Real Estate Registration Act. In addition, once an application for registration of a transaction is submitted, the certificate of registered matters of the property cannot be issued until the application process has been completed. Accordingly, third parties are able to know that there would be new rights regarding the property which are not stated in the latest certificate. It is therefore a general practice to review the registration of a target property before proceeding with a transaction.
On the closing date, the application for registration should be submitted after confirming that the registration does not show any unexpected rights to the target property that are inconsistent with the transaction. However, there is a minor risk that a court might determine that another third party who is not indicated in the registration is the true legal owner or holds a propriety interest. Given that the risk is low due to the stringent requirements of such a determination, legal due diligence on the real rights, including careful examination of the certificate of registered matters of the property, is generally deemed to be sufficient to mitigate the risk of contested title; therefore, no title insurance system has developed in Japan.