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The Land Registry: A Guaranteed Title Yet Subject to Overriding Interests

by Dr Mary Rose Micallef – Junior Associate

By virtue of Legal Notice 15 of 1982 the Land Registry was conceived. Prior to the introduction of the Land Registry searches were predominantly conducted in the Public Registry, (“L-Insinwa“), which was at the time a one-stop-shop database that followed a personal system registration (nominatim). Today the Public Registry receives the registration of Notarial Acts, whilst the Land Registry (cadastre) receives mainly registration of Titles to the property. Furthermore, unlike the personal system registration followed by the Public Registry, the Land Registry’s registration follows a real system (res) thereby based on a geographic-map based system.

Therefore, the Land Registry is now the Registry that deals exclusively with matters of land registration having its business conducted by the appointed Land Registrar. It comprises of two types of registrations namely, the compulsory registration and the voluntary registration. The former is required when the land in question falls within a land registration area, whilst the latter enables an owner of a land falling outside the registration areas to voluntary register his title. Effectively, any rights or burdens connected to a land falling within a compulsory registration area or an area that has been voluntary registered, shall only be operative against third parties upon its respective registration.

By virtue of the Land Registration Act (Chapter 296) the Registrar is conferred quasi-judicial powers that enable him to determine who is the just owner of the land. To this effect, he may administer oaths, examine upon oath persons appearing before him, summon persons and require the production of documents amongst other relative powers. Therefore, the Land Registrar’s role is central to the functioning of the Land Registry. The Court of Appeal in its judgment of Galea vs. Farrugia et decided on the 15th June 2011, that “[j]oħroġ ċar għalhekk, illi sa mill-mument illi ssir l-applikazzjoni għar-registrazzjoni tal-art, ir-Reġistratur jista’ jkun involut kontinwament sabiex jesprimi ruħu dwar diversi aspetti ta’ fatt u ta’ liġi li jolqtu l-istess titolu” therefore agreeing with the Registrar’s submissions.

Moreover, on the lapse of ten years from the first registration, the title in question is converted into a guaranteed title. This shall occur so long as no application for the interruption of prescription or no caution rebutting such title has been registered during the ten-year period. The effects of such guaranteed title are enshrined in article 22 of the said Act which relatively holds that the “… registration of any person as a proprietor of land with a guaranteed title shall confer on the person so register an indefeasible title thereto …”. This certification system was mainly intended to simplify root of title searches by creating a single document that would contain a history of the registered Notarial Acts relative to the area in question.

On the same note, the Civil Court First Hall in the judgment of Demicoli vs. Calleja decided on 14th January, 2016 whilst making reference to a preceding judgment Grima vs. Frendo (decided by the Court of Appeal on 8th May, 2003), held that: “…l-leġislatur ried joħloq sistema li permezz tagħha jkunu jistgħu jinħargu Ċertifikati ta` Titlu li jagħtu lill-possessur tagħhom titlu asssolut `erga omnes` u biex b`hekk tkun tinħoloq sitwazzjoni ta` ċertezza għal dak li jirrigwarda titli fuq proprjeta` immobiljari …”.

Additionally, from a litigious perspective, if a guaranteed title of a registered land is disputed, the court is bound to apply the provisions of the Act, not the default civil norms that are normally applicable to land title disputes. In same judgment the court commented the following: “[i]r-reġistrazzjoni ta` kull persuna bħala sid ta` art b`titolu garantit jagħti lil persuna hekk reġistrata titolu irrevokabbli għaliha, jiġifieri, titolu li ma jistax jiġi megħlub ħlief kif provdut f`dan l-Att … “Meta jinħareġ iċ-ċertifikat tat-titolu, dak it-titolu mhux aktar sindakabbli mill-Qrati ħlief fiċ-ċirkostanzi specifikament kontemplati bil-Kap.296.”

However, even after the successful conversion into a guaranteed title, such title remains subject to the notorious overriding interests. These are exhaustively defined in the Act, the significant ones being, easements, tithes or other burdens, leases, any rights acquired by virtue of prescription, legal usufruct, and rights of heirs of a predeceased spouse over property held in the community of acquests. To this effect in case of a discovery of an overriding interest the guaranteed title would be corrected and adjusted accordingly. Evidently the discovery of any of these overriding interests would render a guaranteed title to be questionable and this, notwithstanding that these overriding interests may emanate from aged Notarial Acts, which Acts would not necessarily be annexed to the said registrations since they would predate the conception of the Land Registry.

Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact Dr Mary Rose Micallef on maryrose@abalegal.eu.