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Land fraud in Sri Lanka

Sri Lankan morality - 40- 50% of land deeds, 20% of the birth, marriage and death certificates are reportedly forgeries; Will the President address this thieving?

by Raj Gonsalkorale

The Registrar General of Land Registration Mr N C Withanage stated in March 2019 that almost 40 – 50% of the land deeds in Sri Lanka are likely to be forged documents. He also said that it has been proven that over 1/5th of the birth certificates, marriage certificates and death certificates in the country are also forged.

If we are to take the Registrar General at his word, in the land of Theravada Dhamma, the citadel of the most ancient Buddhist doctrine, and a fertile ground for Christianity and Islam, almost one in two Sri Lankans are stealing land that belongs to someone else, changes their identities to someone else, probably commits adultery on a mass scale by forging marriage certificates and also brings alive those who have died with forged death certificates. As far as known, only Jesus Christ rose from the dead. It is nearly 18 months since the Registrar General made this observation. The situation could be different now. Hopefully it has not worsened. 

This issue is such a blemish on the character of Sri Lankans, it is hoped that His Excellency President Gotabaya Rajapaksa will take urgent measures to rescind the Bim Saviya land registration Act which does not give people access to court if their lands are affected by fraud and to direct the Minister of Justice to address the legal issues pointed out in this article by the Sri Lanka Study Circle, an informal group of concerned professionals from different walks of life. A special request to His Excellency is to launch a campaign through the Lands ministry to give wide publicity about land fraud and how citizens could verify that the eRegister contains an accurate record of their land deeds. A major anomaly in the eRegister that needs to be heeded, and addressed is the fact that what is in the eRegister would be inaccurate if the registration process has used fraudulent deeds in the first place.      

It is also suggested that the graduate employment program be extended to the Land Registry with a special unit formed to assist the hundreds and thousands of very ordinary citizens who will need assistance to have their land deeds checked in the eRegister.  

President Rajapaksa has to be commended for reiterating that the MCC Agreement will not be signed during his administration. In a news item in Newsfirst (https://www.newsfirst.lk/2020/11/01/mcc-wont-be-signed-even-in-my-dreams-president/), he had stated that “MCC won’t be signed even in my dreams”. This statement is of special relevance as many have been speculating as to what might have been indicated or even promised to the US Secretary of State Mike Pompeo during his recent visit. In the minds of many, the MCC Agreement is the passport for US intervention in Sri Lanka, and certainly as far as Bim Saviya is concerned it is the pathway for this intervention to occur. The MCC Agreement and Bim Saviya are closely linked.

There are however some incongruences in the land registration process as defined in Bim Saviya, and the ownership of land that has been reported. A report on the Land Tenure Considerations in Sri Lanka’s Proposed National REDD+ Strategy by the Sri Lanka UN-REDD Programme in April, 2016 which states that in Sri Lanka, 82.25 percent of the country's land is owned by the State while only 17.75 percent is privately owned, reflecting a history of centralized control over land. If this is the ground reality, the question arises as to why Bim Saviya has stringent requirements for issuing titles for State land, and in fact whether titles are needed in the first places unless the end motive of Bim Saviya is to privatise State land. Considering that the land component of the MCC Agreement and land being registered under Bim Saviya are linked, and all intellectual rights pertaining to what is in the eRegister is to be assigned to the company to be formed under the MCC Agreement, it does appear that the end objective of the Bim Saviya project is to privatise State land.

The report mentioned above is not clear as to whether land that belongs to religious institutions like Christian Churches, Buddhist temples, Moslem mosques are accounted for and if so, which category they fall into. Potentially, these traditional lands could also be privatised depending on their categorisation.

The land registration process has been an abject failure as it has managed to register less than 5% of the 11 million land blocks that were to be registered since 2007. The fault is not with the Registrar Generals department, but with the law that governs the registration process. This law, called the Bim Saviya has turned out to be a Bim Malluma!

The writer, in an earlier article titled “Bim Saviya -Is it serving Sri Lanka or a foreign interest?” and published in the Sri Lanka Guardian and Lankaweb, explored the history and the reasons for this failure. Two key reasons need to be highlighted. Firstly, because Bim Saviya is based on a foreign law, the Australian Torrens Title system and its unsuitability to meet Sri Lankan historical and community heritage. Secondly, the impractical, arduous, process that requires every lot to be visited by staff from the land registry to “see for themselves and ascertain ownership”. Less than 5% of the lots have been registered in 12 years. It will take more than two centuries to register the balance.

If the fraudulent deeds are to be exposed, and rightful owners identified through the tracking of the history of land ownership has to be done, and then, genuine deeds be registered. Bim Saviya has to reflect Sri Lanka’s land ownership history. This is not the case with Bim Saviya as it is set to erase the history of land ownership with inadequate and inappropriate methods to establish land ownership. There is absolutely no argument or a reason to keep Bim Saviya unless there are and were ulterior motives to retain it. 

The extent of land fraud may eclipse the value of the Bond scam. In an article written by eminent lawyer Kirthimala Gunasekera titled “Build a protective wall around your land-ownership deed - Some insightful information for those who own land and those who wish to buy land” published in the Sunday Times on the 15 Jun 2014”, the inroads made by fraudsters has been exposed quote “An alarming feature of these incidents is that fraudsters have reportedly been successful in infiltrating the sacred inner sanctum of the land registry to destroy and deface the vital documents safely stored to support and protect the land rights of land owners. The CID has frequently warned the general public that its investigations have often failed due to the victims not being able to substantiate their (the victims') case with evidence that normally should have been available with the custodian, the Land Registry; the 'evidence' having been altered, defaced, missing or torn”. She also quotes the following “The Sunday Times in a recent article headlined 'You may have deeds but you may not be the owner' [http://www.sundaytimes.lk/120902/news/you-may-haveland-deeds-but-you-may-not-be-the-onlyowner-] exposed the shocking news of vital documents missing from the Land Registry and how a fraudster duo of mother and daughter had sold a 14 perch land for Rs. 6 million to 8 different people”.

Ms Gunasekera suggested several precautionary measures to safeguard one’s legal ownership of land. A summary is noted below

A] Vital documents from the Land Registry

Obtain certified copies of the duplicate, and the extracts from the respective land registries.

Duplicate deed: A Notary attesting a deed is mandatorily required to file a copy of the deed referred to as the Duplicate copy with the Land Registry together with the receipt paid for stamp duty. 

Extracts - All deeds are recorded chronologically in pages bound together into volumes called registers. Extracts are copies of pages or sheets of paper from these volumes where the deeds are registered. 

B] Vital documents from the service providers

As stated earlier the idea is to build a wall of protection around your ownership deed with documentary evidence. Therefore, owners need to be vigilant to register their names not only in the Land Registry, but also with the relevant service providers as these service providers will provide evidence of ownership and possession when required. They are:

1. The local authority, (Municipal Council, Urban Council or Town Council where the land would be situated). Retain the tax receipts issued for payment of taxes and obtain the ownership certificate in the name of the owner after due registration of ownership. 2. The Water Board 3. The Electricity Board 4. The telephone authorities 5. The Elections Department 6. Any others such as receipts from contractors, house keepers, repairman for repairs, clearing, fencing and renovations etc.

C] Vital identification documents

Do not rush to buy land: Land purchasers rush to complete transactions especially when they find bargains. They fail to have consultations and face-to-face interviews with owners, agents, witnesses, surveyors and even notaries. Beware of people posing as notaries. They also impersonate notaries long deceased. Check from the list of notaries maintained in land registries. 

Ms Gunasekera mentions an instance where a lady had been swindled to the tune of Rs. 42 million by a person. She bought the land relying on the identity card to identify the owner. She subsequently wanted to sell the land, but the prospective purchaser diligently searched the identification of the owner and found that the land belonged to the UDA, and the woman had bought the land from a fraudster who had pasted a forged folio in the register including his name as the owner. The suspect had cheated about 110 people previously. 

D) Exercising due diligence: Buyers need to exercise due diligence. When buying land, enquire and find out from neighbours as to ' who owns the land or the house'. 

Land fraud is a subject taken seriously by other nations. They have developed advanced integrated systems of transacting laws with 'owner identification' methods for solicitors over the course of the past decades and also adopted biometric solutions to identify owners to prevent land fraud. Many nations have introduced electronic identity data bases to land registries to register and protect the identity of land owners. They take the thumbprints, iris and digital photos of those participating in transactions at the time of notarising documents to ensure that fraud does not take place. The internet carries an extensive range of information from different countries that can be searched under the relevant names given to the data bases. They are Enjoa - new electronic notary logbook used in the US, e-Tanah in Malaysia, Bhoomi project in India, Loucha Pathap in Manipur.

It does not appear that Sri Lanka has taken land fraud seriously. Perhaps fraud per se has not been seriously treated and land fraud just a malady within a malady. 

Sri Lanka has now nearly completed an electronic registration process (eRegister). However, unless this register has strong inbuilt safeguards, fraud would still go unabated considering the prevalence of Cybercrimes. The law that is linked to this register, Bim Saviya, has numerous shortcomings as has been detailed and  combination of this trifecta, an ineffective law, lack of system security for the eRegister, and the lackadaisical indifference to land fraud seems like ideal conditions for perpetuation of land fraud.

More information on land fraud could be obtained by writing to landrightsasia@gmil.com or by telephoning 0712730616. For the benefit of land owners, senior Attorney at Law Ajithaa Edirmanne, a member of the 'committee on land fraud' has uploaded a slide presentation titled 'Protect Your Property from Land Scam', which can be accessed at http://ajithaa2.wordpress.com/2014/03/20 /protect-your-property-from-land-scams/ 

The Sri Lanka Study Circle have noted the following. Firstly, they are unambiguous that the eRegister   has to   be   compulsory   and should be secured and that it requires to be   governed by a law familiar to   land owners and lawyers. Bim Saviya is neither and it is an impractical impossibility for it to serve as the law that governs the eRegister. The Study Circle also is of the opinion that the eRegister should be managed, staff and user capacity built by an institution like the Moratuwa University and if need be, a consortium led by the Moratuwa University and that all intellectual rights should be with the local entity (Moratuwa University) and not any company.

The Study Circle says the register requires the following amendments with immediate effect 

1]  eRegister has to be made compulsory.  The Register is not compulsory under our law. A comprehensive register is where all owners ‘rights to land are registered. Therefore, require that land sales, gifts leases, agreements and all land transactions to be compulsorily registered.   

2] The eRegister is not safe as the law available does not protect the register.  The following need to be attended to as fraud and money laundering are extremely pervasive in our country. 

Registration of Documents Ordinance of 1927 Section 7   states that the Registrar is not responsible for the validity of deeds registered. This must be immediately changed as under this provision the Registrar cannot   refuse registration of forged deeds. 

Unfortunately, Central Bank regulations for the safety of Financial transactions have been selectively introduced to Trust deeds to identify owners and archive identification verification documents for the buyers or whoever deals with the trust lands   in the future.   [Trust Ordinance 9 of 1917 amended by TRUSTS (AMENDMENT) ACT, No. 6 OF 2018

According to these regulations, trustees are required to maintain, verify and update the following information relating to express trusts, 1. Information about the trust (name, address, purpose), 2. Information about the author of trust, trustees and co-trustee/s (name, identification, address, etc) 3. Information of the beneficiary/beneficiaries/ class of beneficiaries (name, identification, address) 4. Information of any other person engaged in the execution of the trust 5. Information of any beneficial owners 1/2 At the same time, trustees are required to submit the information maintained above to the Registrar of Lands of the area, within which, the trust property is situated and to the Registrar General. These measures have been taken to minimize the misuse of legal arrangements/ trusts in money laundering by increasing the transparency of trusts created in Sri Lanka. The Registrar General and the trustees have to be responsible to identify the trustees and prevent money laundering]

The Study Circle is hopeful that His Excellency President Gotabaya Rajapaksa will initiate action to address the entirety of legal, political, commercial and administrative issues pertaining to land and establish true guardianship of what belongs to future generations and not to some short sighted, avaricious segment of the present generation.

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