A moment with the Registrar of Lands
ENCUMBRANCES ON LAND
Restrictive covenants, charges, restrictions… these are all examples of encumbrances that may be registered on one’s land.
An encumbrance is defined as “a right to, or interest in, or legal liability on property that may diminish its [use or] value.” To be effective and have legal standing, encumbrances must be registered in the Land Registry, recorded in the Land Register page of the particular parcel, so that anyone who considers it prudent to check the Land Register for information on that parcel, would be aware of the encumbrance. The Land Register is available to the public for searches, so any person can inquire about any land parcel in Montserrat, particularly before purchasing or otherwise investing in the land.
Some encumbrances may arise through a contractual arrangement with the land owner, such as restrictive covenants, charges and leases.
A restrictive covenant is agreed to by the owner at the time of purchase, that he will use the property in the agreed manner only, and that he will refrain from certain actions that may devalue the property, or run contrary to the intended use of the land development. Common restrictive covenants are for example, that the land will not be used to raise livestock, or that the land will be used for a single-family residence only, not for multiple buildings or a commercial purpose. A Land Registry search will reveal whether a particular parcel is subject to restrictive covenants. A copy of the specific covenants may be provided as well.
A charge is an interest recorded on land, to signify the existence of a debt on terms which include the use of the land as security for the debt, and a power of the lender to sell the land in the event of default. The owner of the land would have agreed to these terms with the lender that in exchange for the loan. Banks and credit unions, as the primary financial institutions, account for the majority of charge holders recorded in the Land Registry. Any person desirous of inquiring whether a land parcel is encumbered with a charge, should request a search of the property at the Land Registry.
The landlord/owner who effects a long-term lease is obliged to register the existence of the lease in the Land Register. By registration, the Land Register page for the parcel would show the existence and duration of the leasehold interest in the property. Therefore the property would be subject to, or encumbered with the interests of the lease, as the public record would show that the tenant has a leasehold interest in the property, and that the land lord is entitled to collect rent from the tenant. If, for example, a landlord entered into a 15- year lease ten years ago, any prospective purchaser or investor in the property would see from the Land Register that there is a 5-year leasehold interest remaining on the property.
Some encumbrances arise by operation of law, or as a result of competing claims. These include restrictions and cautions. For example, the Registrar of Lands may register a restriction on a property to prevent fraud or improper dealing or for any other sufficient reason. The effect of the restriction is to prevent any dealings with the land until the issue to be resolved is heard and resolved by the Court or the Registrar of Lands. Affected persons would be notified and given an opportunity to be heard.
A caution is another encumbrance that may be registered on land, to prevent any dealings with the land while the interests of the cautioner subsist. Like the Charge, the cautioner may be a bank that has loaned money in exchange for an interest in the land. But a cautioner may also be a person who has an interest in the land that is currently not reflected in the Land Register. Such a person may be a person who claims part ownership, or who contends that the registered proprietor’s claim is erroneous or fraudulent. All parties must be given an opportunity to be heard before the caution may be removed and unless there is mutual agreement, caution claims may eventually be ventilated in a formal hearing before the Registrar of Lands or a High Court judge in order for the issues to be resolved.
It is important to landowners to be aware of how encumbrances may affect their property rights, and how encumbrances may be used to protect property rights and property values. The importance of conducting searches of property before any land purchase or investment, and of seeking legal advice cannot be over emphasized.
For further information please contact the Land and Surveys Department at surveys@gov.ms.
Part 1 2018
A moment with the Registrar of Lands
Applying for a replacement Land Certificate.
Every owner of land in Montserrat is entitled to have a land certificate issued as proof of land ownership. Landowners must be responsible for keeping their certificate in a secure, safe location, just as they would any other important documents, such as passports and birth certificates. However, there are times when land certificates get lost or misplaced. This short article sets out the procedure to replace a lost land certificate.
A land certificate may get lost for several reasons. The most common reason is that the Land Certificate got lost or misplaced after someone moved or relocated or following the death of a family member. Land certificates may get lost or destroyed as a result of a fire, flood, hurricane or as a result of criminal activity such as arson or burglary. There are other instances when the certificate gets lost or misplaced after it is entrusted to a third person, such as a family member, or a lawyer, surveyor, realtor, or banker.
Procedure
Sworn Statement
- The owner of the land must make a sworn statement or affidavit including facts that would satisfy the Registrar that the certificate has been lost or destroyed. The statement must detail events leading up to the loss, including where the certificate was last located, and the last time the whereabouts of the certificate were known. If the certificate was entrusted to a bank, a lawyer, surveyor or family member, then that person would also have to make a statement, to confirm that the land certificate was last in his possession.
- Supporting documents must be attached to substantiate the facts stated, such as a police report of a burglary or fire. In any event, the Registrar of Lands may request any supporting document to satisfy that the Land Certificate is lost or destroyed.
Publication
After the application has been accepted by the Land Registry, with the statements and supporting documents, the Land Registry must publish a notice to the public that the certificate is lost. Newspaper publication has been the most effective publication method for lost certificate application. The most effective publication method for lost certificate application has been publishing in the newspaper.
Publication is a very important step because it:
- Affords an opportunity to any person who may have information about the certificate to come forward;
- Is easily documented as proof of publication, which the Registrar requires to cancel the old certificate and issue a new one;
- Provides an opportunity to prevent loss by a potential equitable chargee, or a person who may have been entrusted with the certificate by the owner in exchange for a loan, or services and who would lose his security if a new certificate is issued without his knowledge.
Undertaking
Because only one certificate should exist for each parcel of land at any time, the applicant must agree or give an undertaking in his statement that if the lost certificate is ever found, it would be handed into the Land Registry. This is a very important undertaking because the existence of two certificates for the same land parcel would be highly suspicious, and as it would appear that a falsehood or fraud took place to induce the Registrar of Lands to produce a land certificate when a land certificate was already in existence.
Conclusion
Applications for replacement of lost land certificates are not usually complicated. Once a comprehensive statutory statement is made, most applications are granted within a short time. Persons may wish to contact their lawyers for assistance in these applications.
For any questions concerning these or other applications concerning land, contact the Land Registry at (664) 491-3669/3620 or by email at surveys@ gov.ms.
