In the recent budget debate both the prime minister and the leader of the Opposition attached priority to reforming the land titling system to address the plight of the vast number of persons who own land but have no registered titles.

According to figures provided by the prime minister, almost 338,000 or 40 per cent of all parcels of land in Jamaica are without registered titles. A crude estimate of the value of these properties would be in excess of $200 billion. It is what was classically coined by Peruvian economist, Hernando de Soto Polar as “dead capital” since it cannot readily be used as equity or collateral in the formal financial system. It is not entirely dead since, especially in rural Jamaica, it is what thousands of people use to provide shelter and eke out a living, but its value as a tradable asset is severely diminished by the lack of a registered title.

The number of unregistered parcels is likely to be considerably higher than the figures quoted since many parcels, especially “family land”, have been informally subdivided. The number jumps exponentially if squatter settlements, that are to be regularised and which have thousands of separate families and dwellings, are thrown into the equation.

Archaic laws

Land registration is governed by several laws, most of them over 100 years old. It is an archaic system requiring tedious and expensive processes. Over the many years, attempts have been made to find ways to go through the system more expeditiously or to get around the system altogether.

In 1955, then Chief Minister Norman Manley introduced the Facilities for Titles Act, which was specifically designed to assist small farmers who were unable to obtain loans from their local People’s Cooperative banks because they had no land titles. It allowed specified lending agencies to accept unregistered land as enforceable security, provided that the borrower submitted affidavits from himself and at least two other responsible persons (eg justices of the peace, police officers, ministers of religion, teachers) attesting to his ownership of the land, along with proof of payment of land tax.

The lending agency was required to have a notice conspicuously displayed on the land to allow persons wishing to do so to object to the claim of ownership, in the absence of which it would then issue a “certificate of compliance” and confirmation that a mortgage has been duly executed. These would be sufficient for the land to be registered under the Registration of Titles Act of 1889.

The lending agency had to include in the loan a contribution to a special fund to compensate any person who might subsequently assert and prove ownership of the land. Another feature of this legislation is that it allowed claims for adverse possession after undisturbed occupancy of six years, instead of 12 years as stipulated in the Limitation of Actions Act of 1881.

Under this arrangement, the creditworthiness of the borrower and the bankability of the purpose for which the loan was sought — issues that have nothing to do with the validity of ownership — became determining factors as to whether a registered title could be issued. In more recent times, the National Housing Trust has utilised this facility in granting mortgages. However, this fix does not address the plight of countless other unregistered landholders who do not seek or are not granted loans or mortgages.

In 2000, former Prime Minister PJ Patterson introduced the Land Administration and Management Programme (LAMP), which provides surveying and legal services for registering land in designated areas at a subsidised cost. It also exempts the subdivision of land, which is most often necessary for the registration of title, from some of the rigorous requirements of the Local Improvements Act of 1914. Since its inception, the Government has spent more than $2 billion to support the programme, not including the revenue it has foregone in the waiving of transfer tax, stamp duties and recording fees. The average cost of producing a title, as reported by the prime minister, is $192,000 per parcel, about two-thirds of which, I believe, is subsidised by the Government.

The LAMP is tied both legislatively and operationally to the cadastral mapping programme which, so far, covers less than 25 per cent of the island. As a result of this, as well as other resource constraints, less than 10,000 new registered titles have been generated through the programme, notwithstanding the valuable assistance provided in the initial stages by the Inter-American Development Bank and, subsequently, by the Government of South Korea through its local project implementer, Geoland Title Ltd.

Land registration infrastructure

In an era of advanced technology, efficient land registration requires a sophisticated infrastructure to identify each parcel of land with precise boundaries fitted into a national grid, and to build an up to date land information database. The National Land Agency (NLA) has been doing valuable work in this regard, including the establishment of a GPS-driven virtual reference system network with several continuously operating and strategically located reference stations across the island.

Its internal systems have also improved significantly with the use of appropriate technology. Persons with whom I have spoken who depend heavily on the NLA’s services have generally reported satisfaction with its level of efficiency and the turnaround time for completing transactions. However, resource constraints have retarded its work, especially in the development of the national cadastral map that would so greatly improve the land registration process. Ramping this up must be an integral part of tackling the land titling problem.

Much of the tediousness in registering land lies outside of the NLA. Precise boundary identification is critical in a digital age. The Registration of Titles Act allows for boundaries to be defined by “metes and bounds”, but the days when land could be identified by movable bridle tracks and guango trees are long gone. The cost of engaging a land surveyor to have this done properly is expensive, but it is an inescapable requirement. The method of doing this has also benefited from new technology that, one would hope, would result in reduced costs.

Apart from the costs the unregistered landholder has to bear, the availability of commissioned land surveyors is a major constraint. In a Ministry Paper that I tabled in Parliament in 2010, it was noted that the surveying work alone to achieve 100 per cent registration over a 10-year period would require at least 40 land surveyors on a full-time basis — roughly equivalent to one-half of the total number of land surveyors licensed to practise in Jamaica at that time.

A much greater impediment is the requirement for subdivision approval by the local authorities that, in many cases, is needed before land can be registered. Under the Local Improvements Act, subdivision approval requires, where they do not already exist, the laying out of roads, water supply and other amenities to specifications prescribed by the local authority. This is a very costly undertaking.

Persons who, through informal purchase, inheritance or adverse possession, claim ownership of plots that are not already served by constructed roadways and water pipes are unlikely to get the approval of the local authority that they must have in order to apply for individual titles. The cost of meeting these requirements might be multiple times the value of the land they are seeking to register, yet they may well be paying taxes for the land that the Government is quite happy to collect and, in fact, demands without any concern for their right of ownership. The subdivision process is also arduous.

Subdivision approval process

Where the subdivision involves more than nine separate parcels of land, the process is as follows:

(1) A land surveyor must be engaged to survey the land and prepare a pre-checked plan which is submitted, along with the relevant fees, to the NLA for certification by the director of surveys;

(2) Subdivision application along with the certified diagram, proof of ownership (which must be satisfactorily established) and the appropriate fees are submitted to the local authority;

(3) Local authority conducts site inspection to confirm that the application meets all the prescribed requirements and prepares a report;

(4) Local authority forwards the application to the National Environment and Planning Agency (NEPA) along with the site inspection report;

(5) NEPA conducts technical review and also determines whether environmental permit, environmental impact assessment and public consultations are required;

(6) NEPA refers application with relevant technical data to a variety of other agencies (National Works Agency, National Water Commission, Water Resources Authority, Ministry of Health, Fire Services, Ministry of Agriculture, Mines & Geology Department) for their comments;

(7) NEPA awaits responses from the various agencies;

(8) NEPA returns the application to the local authority with the comments of the various agencies and its own recommendations;

(9) Local authority’s planning committee considers the application based on the recommendations and comments;

(10) If approved by the planning committee, conditions of approval are drafted and presented to the applicants for acceptance;

(11) Local authority then forwards the application to the minister of local government for approval;

(12) Local authority advises applicants of minister’s approval;

(13) The infrastructure works must then be executed as specified in the conditions of approval;

(14) Local authority issues a certificate of satisfactory completion of the specified works;

(15) Application is then submitted to the NLA for registration of titles.

The subdivision checklist published by NEPA stipulates minimum lot sizes and requires information relating to roadways, drainage, sewage treatment, solid waste management and soil percolation tests, among other things. Subdivision applications involving less than 10 parcels are not referred to NEPA but are dealt with by the local authority; and while the requirements may be less onerous, they are still formidable.

What is a land title?

If we are to make any real progress in registering untitled lands, a major overhaul of the laws relating to land titling has to be undertaken. This entails more than taking account of modern land management practices and technology. We need to determine what a land title ought properly to represent. In law, a title is the certification of a legal or equitable interest in land — nothing more and nothing less. In Jamaica, we have affixed to it proof of infrastructure development. In other words, the landholder must first develop the land to prescribed specifications before his ownership of it can be legally registered.

The large number of unregistered parcels of land suggests that we need to decide whether infrastructure development should be a prerequisite for officially recognising lawful ownership and issuing a registered title, or be allowed simply to determine the value of the land.

The concept is not new. I had mooted it during the budget debate in Parliament in 2008. There was scepticism by some government bureaucrats and huge pushback by some local authorities who feared not just the loss of revenue from subdivision fees but, of more concern, the pressure that would be put on them by these new registered landholders to provide the roads, water supply and electricity that they lack.

Many unregistered landholders have no documents to prove ownership but their claim to ownership has never been challenged. They may have lived on the land all their lives, as also did their parents and grandparents. Their ownership and the boundaries, however rudimentary, are recognised and accepted within the community.

An important part of the thinking I had outlined in 2008 was the establishment of land tribunals in each parish that would conduct sittings at the community level to confirm ownership where boundaries are clearly identified and ownership is not in dispute. These tribunals could be headed by lay magistrates, appropriately trained in land issues. Where there are disputes about ownership or boundaries, a separate process of adjudication would have to be pursued. But once ownership is asserted with supporting affidavits and is not contested and once boundaries have been precisely identified by survey and adequate spatial access or right of way to the land exists, there should be no further requirement for registration and the issuing of a certificate of title.

Meaningful change and conventional thinking are not normally compatible. Creative solutions most often require that we step outside of the box.

— Bruce Golding is a former Prime Minister of Jamaica