Resolving land disputes: the Torrens land title system

Enormous amounts of time, energy and money are taken up by these land disputes.

By MOSHE DANN
Beit El settlement, West Bank July 29, 2015 (photo credit: TOVAH LAZAROFF)
Beit El settlement, West Bank July 29, 2015
(photo credit: TOVAH LAZAROFF)
Daily confrontations over land ownership and building rights in Judea and Samaria are fueling anti-Israel propaganda campaigns and undermining the authority and reputation of the state. Arab claims of land ownership often result in the needless destruction of Jewish homes and property and charges that Jews have stolen Arab land, creating anger and frustration.
Enormous amounts of time, energy and money are taken up by these land disputes.
The High Court is clogged with cases.
Legal advisors at the Civil Administration (CA) – the state agency that controls land registration for Judea and Samaria and is tasked with deciding issues of land ownership – are unqualified and often politically motivated. COGAT (Coordinator of Government Activities in the Territories) which is part of the Defense Ministry (since the area is under military occupation) is responsible for the CA, but is run by IDF officers who are unqualified, often politically compromised and who operate their own separate legal system. Unsupervised by Israeli courts, they make the law and the rules. Appealing their decisions to the High Court is useless since the High Court always defers to COGAT and the CA as the legal authority.
We don’t even know on what basis the CA decides questions of disputed land or why it prevents Jews from examining documents in the land registry records.
The system is a judicial mess and Arabs, assisted by foreign-funded NGOs like Yesh Din and Peace Now, are able to manipulate the system against Israeli Jews.
Attempts to bring a rational, coherent legal system to Judea and Samaria, however, have met with government inertia and resistance from bureaucrats in the legal establishment. In order to find a way out, several years ago Prime Minister Benjamin Netanyahu established a special committee to offer suggestions.
The Levy Committee, headed by the late former justice Edmund Levy and staffed by legal experts, carefully evaluated Israel’s legal position in Judea and Samaria. It recommended practical and realistic solutions, including special courts to handle land disputes, but the report has been blocked by a single, unelected and politically motivated official: Attorney General Yehuda Weinstein.
He has refused to explain his opposition and refuses to allow the Levy Report to be considered by the government.
Weinstein’s obstruction of the democratic process shames our claim to be a democracy and the “rule of law.”
A simple solution to disputes of land ownership in Judea and Samaria is the application of the Torrens land title system which is used by Israel and many other countries. It involves proper land surveying and zoning, rather than relying on arbitrary and unprofessional decisions made by CA/COGAT bureaucrats.
Torrens title is a system of land title in which the state maintains a register of land holdings and guarantees an indefeasible (clear) title to those included. The title reflects all the information about the land claimed. The registrar ensures that only legally valid changes are made to the register.
If there is a change of ownership, for example due to the sale of the land or the death of the registered owner, or as a result of a court order, the registrar must decide what is valid.
Land ownership (deeds) is transferred through registration by title instead of title by registration (which the CA uses in Judea and Samaria). Its main purpose is to simplify land transactions and to certify ownership.
It eliminates the need for a chain of title (i.e. tracing title through a series of documents) and is guaranteed by the state. Those who lose title due to errors or operations of the state are compensated by the state.
“The main object of the Torrens Title System is to make the register conclusive.
Once your name is registered on the Torrens Title register, you become the owner of the property to the exclusion of all others.
You therefore obtain ‘title by registration,’ which is a pivotal concept of Torrens Title.”
(All quotes are from Internet and Wikipedia).
The Torrens system was established over 150 years ago in Australia – at the same time the Ottoman Empire introduced its Land Codes for areas it ruled – and is used throughout the British Commonwealth and Canada. It is widely accepted and is taught in law schools throughout the world.
There are also other land registry systems.
The cadastral system is a comprehensive register of specific real estate and property.
Developed at the end of the 18th century in France and used in many European countries, it uses maps which show the boundaries and ownership of land parcels.
Based on tax rolls, these maps are designed to make local situations legible and enable states to collect data on their subjects. The cadastral system includes details of the ownership, tenure, precise location and dimensions, the cultivation if rural, and the value of individual parcels of land. The cadastral system is used by the US Bureau of Land Management to resolve disputes over land ownership.
Under common law, land owners needed to prove their ownership of a particular piece of land back to the earliest grant of land by the sovereign power. Since this was often difficult and imprecise, many disputes arose.
“The documents relating to transactions with the land were collectively known as the title deeds or the ‘chain of title.’ This event could have occurred hundreds of years prior and could have been intervened by dozens of changes in the land’s ownership.
A person’s ownership over land could also be challenged, potentially causing great legal expense to land owners and hindering development.”
“The main difference between a common law title and a Torrens title is that a member of the general community, acting in good faith, can rely on the information on the land register as to the rights and interests of parties recorded there, and act on the basis of that information. A prospective purchaser, for example, is not required to look beyond that record. He or she does not need even to examine the Certificate of Title, the register information being paramount. This contrasts with a common law title, which is based on the principle that a vendor cannot transfer to a purchaser a greater interest than he or she owns. As with a chain, the seller’s title is as good as the weakest link of the chain of title. Accordingly, if a vendor’s common law title is defective in any way, so would be the purchaser’s title. Hence, it is incumbent on the purchaser to ensure that the vendor’s title is beyond question. This may involve both inquiries and an examination of the chain of title.”
Applying the Torrens system to Judea and Samaria would avoid unnecessary appeals and interventions by the High Court, reduce disputes and prevent fraud, and it would simplify judicial procedures.
Matters of civil law should be adjudicated by courts and by professionals – not by IDF bureaucrats. The current system used by CA/COGAT is not only unreliable and untenable, it is inefficient and unjust.
The author is a PhD historian, writer and journalist.


Related Tags
housing prices