Dear Editor,
In Guyana, we have a unique system of land ownership, which by virtue of our historic colonial experience, is an admixture of Roman Dutch and English law along with the Australian Torrens system of land registration. I will focus primarily on the Roman Dutch and English law amalgam. In our land law, they exist side by side. However, the co-existence of these two different systems of land ownership has not been harmonious.
Under Roman Dutch law, title for land is held by a document called a ‘transport.’ This transport by statute, confers upon its holder absolute title subject only to registered encumbrances, for example, mortgages and certain statutory claims, as rates and taxes.
Unlike English law, an agreement of sale for the purchase of land under our Roman Dutch system confers upon the purchaser no interest in the land which forms the subject of the agreement. The purchaser under that agreement has a right to sue the vendor for specific performance and breach of that contract if there is a failure to pass transport within the time prescribed by the agreement. The purchaser also has a right to file an opposition to the passing of the transport in respect of that property if the vendor attempts to pass transport to another person. The conveyance is statutorily required to be advertised for passing in the Official Gazette. It is this advertisement of the conveyance in the Official Gazette which notifies the public of the impending passing of the transport and allows the aggrieved purchaser or anyone who has an interest in the property to oppose the passing of the conveyance.
Regrettably, the Official Gazette is not readily available to the ordinary Guyanese; neither is it widely read. Indeed, the unfortunate reality is that the ordinary Guyanese citizen does not understand the importance of the Official Gazette and is even unaware of his or her right to oppose a conveyance advertised there.
The unfortunate consequence is that on a regular basis, dishonest vendors sell one property to more than one purchaser, receiving deposits from each purchaser and then passing transport to a third party who, invariably, receives that transport without knowledge of the previous purchases.
Unless it can be established that he was privy to the previous purchases, that third purchaser receives a clean and bona fide title. In the result, the previous purchasers would have lost the property and are left with only the legal option of suing the vendor for the recovery of their deposit and for compensation for breach of contract. A deceptive vendor rarely keeps any assets in his name so that any judgment obtained against him is usually an empty judgment.
At the end of the day, under the current unjust state of the law, without receiving transport in his name, an innocent and unsuspecting purchaser can easily lose a property for which he has paid a substantive part, or even the full purchase price under the agreement of sale, because the agreement of sale confers upon him no interest in the land which he purchased! This occurs in our society with alarming frequency, and poor and ordinary working people are often the hapless victims.
In contradistinction, under English law, an agreement of sale in respect of land creates a trust in favour of the purchaser and the vendor then holds that property on trust for the purchaser. Any disposal of that property thereafter without the authority of the purchaser becomes subject to that trust. It may be difficult if not jurisprudentially impossible to replicate the English position in Guyana because it would involve the importation into the Roman Dutch system of an alien concept, that is, a trust. However, I think a similar objective can be achieved by a simple amendment to section 22 of the Deeds Registry Act, Chapter 5:01. The relevant portion of this section reads as follows:
“… every transport of immovable property … shall vest in the transferee the full and absolute title to the immovable property or to the rights and interest therein described in that transport, subject to-
(a) statutory claims;
(b) registered incumbrances;
(c) registered interests registered before the date of the last advertisement of the transport in the Gazette;
(d) registered leases registered before the date of the last advertisement of the transport in the Gazette.”
I propose that section 22 of the Deeds Registry Act be amended to include either, (i) that a registered encumbrance includes an agreement of sale and that the necessary amendments be made to permit an agreement of sale to be so registered or, (ii) to add an agreement of sale as one of the categories of matters to which the absolute title which a transport confers shall be subject.
Yours faithfully,
Mohabir Anil Nandlall, MP