LAND TITLE SYSTEMS IN TRINIDAD AND TOBAGO
In Trinidad and Tobago there is a dual system of land titles, namely, the Old “English” Law or Common Law Title System (“the Common Law System”) governed by the Conveyancing and Law of Property Act, Chap. 56:01 and the registered land title system governed by our Real Property Act, Chap. 56:02 (“the RPA System”).
The Common Law System of Land Registration
The Common Law System of title is the older of the two systems and deals with unregistered land. Under this system, title to a parcel of land is traced by the registration of deeds, each such deed representing a transaction relating to the parcel of land. In order to be able to certify title with respect to a parcel of unregistered land one is required to produce, what is in law referred to as a “Good Root of Title” relating to such parcel of land, that is, a deed of at least twenty years (20) of age under which consideration has passed (for example, a Deed of Conveyance or a Deed of Mortgage). Thereafter, the “Chain of Title” of ownership (each registered deed constituting a “link” in the chain) is traced to the present owner. Where each registered deed can be traced and linked together so as to lead to the person alleging ownership without a break in the chain, good and marketable title will be established under the Common Law System.
The Common Law System is not without its difficulties, as establishing full ownership of land involves the “getting in” of both the legal and the equitable titles. This is based on the common law principle that a vendor cannot transfer a greater interest than he or she may own (this is known in legal circles as the Nemo Dat Rule). The tracing of title under the Common Law System can become quite convoluted and the fact that unregistered equitable interests are recognized can bring about difficult questions as to whether or not a purchaser has “notice” of any such equity, which could thereby impugn his/her title in the parcel of land. In an effort to address the many difficulties posed by the Common Law System, Mr. Robert Torrens developed what is known as the Torrens System of land registration, which was first introduced as law by the legislature of South Australia on January 27, 1858.
The RPA System of Land Registration
The RPA System, which is essentially an embodiment of the Australian Torrens System, was brought into law in Trinidad and Tobago pursuant to the Real Property Ordinance, as it then was, on January 1, 1946. The RPA System, in theory, is meant to simplify the potentially complex land title issues that arise under the Common Law System of two estates, the “legal” and the “equitable”, by introducing the concept of a single estate. The registered proprietor of a parcel of land under the RPA System is said to have an “indefeasible title” which is beyond challenge except in cases of fraud or adverse possession.
Under this system a Register of landholdings is maintained by the State and the State guarantees an indefeasible title to those currently on the Register. Unlike the Common Law System, land ownership is transferred through the registration of title. The relevant transfer instruments are registered and duly endorsed on the Certificate of Title relating to a specific parcel of land. Each RPA parcel of land has two (2) Certificates of Title, one Certificate of Title is kept at the Land Registry permanently and the other, commonly referred to as the Original Duplicate Certificate of Title, is given to the registered proprietor/owner of the subject parcel of land. No dealing can be successfully registered and endorsed on a Certificate of Title unless the Original Duplicate Certificate of Title is produced along with the relevant Instrument.
The RPA System saves persons the trouble and expense of going behind the Register in order to investigate the history of the owner’s title and is designed to provide certainty as to the ownership of title in Real Property. The RPA System is based on three major tenets that can be summarized as follows:-
(1) The Mirror Principle – The mirror principle involves the proposition that the Certificate of Title is a mirror which reflects accurately and completely the mirrored facts that are material to the ownership of the subject parcel of land. The Certificate of Title or Register of Title with respect to RPA lands will not show matters that are incapable of substantive registration and it does not allow anyone to view and consider facts and events which are capable of being registered or ought to have been registered but which have not in fact been registered. In other words, a registered title under the RPA is free from all adverse burdens, rights, equities and qualifications unless the same are specifically mentioned on the Certificate of Title in question.
(2) The Curtain Principle – The Register of Title is to be the sole source of information concerning the parcel of land in question and one should not concern themselves with trust and equities that may lie behind the curtain.
(3) The Insurance Principle – This in fact is a form of title insurance and involves the proposition that the Register correctly reflects the title and, if due to an error, there is a defect, anyone who suffers loss as a result of the error must be made whole insofar as money is capable of doing so. As such, a statutory insurance fund is set up for these purposes and this is what is being referred to when it is said that RPA title is guaranteed by the State.
In essence, the main difference between title under the Common Law System and an RPA Title is that under the RPA System a person can rely on the information on the Register as accurately reflecting the rights and interests of the parties recorded there and a prospective purchaser is not required to look beyond that record. This is not the case with respect to title under the Common Law System and a prospective purchaser would be well advised to perform the appropriate due diligence and title searches, in order to ensure that the prospective seller has good and marketable title to the parcel of land in question.
Unfortunately, for various reasons, approximately 75% – 80% of land in Trinidad and Tobago remains under the more complicated Common Law System, which really is nothing more than the registration or recording of title deeds in a public office.