Charles Fortescue-Brickdale

“ Registration of deeds does not (except perhaps to a certain extent indirectly) cheapen or simplify the process of investigation—the formalities at the registry add something to the trouble and cost incurred—but it prevents the particular classes of fraud mentioned.
The history of land registration follows, as a general rule, a fairly uniform course of development. In very early times, and in small and simple communities, the difficulty afterwards found in establishing title to land does not arise, owing to the primitive habit of attaching ceremony and publicity to all dealings. ”

“ If there are encumbrances, the register states their amount and who are entitled to them. The purchaser then usually [1] prepares a conveyance or transfer of the land (generally in a short printed form issued by the registry) , and the vendor executes it in exchange for the purchase money. If there are mortgages, he pays them off to the persons named in the register as their owners, and they concur in a discharge. He then presents the executed instruments at the registry, and is entered as owner of the land instead of the vendor, the mortgages, if any, being cancelled. ”

“ About 40,000 deeds are registered annually. The consequence of the existence of this register is to render fraud in title absolutely unknown. Forty years is the usual period investigated. The investigation can, if desired, be made from the records in the registry alone. The fees are trifling, but suffice to pay the expenses of the office, which employs between 70 and 80 permanent officers in addition to temporary assistants. The total costs of conveyancing amount, roughly speaking, to between 1 and 2% on the purchase money, and are equally shared between vendor and purchaser. ”

“ LAND REGISTRATION, a legal process connected with the transfer of landed property, comprising two forms—registration of deeds and registration of title, which may be best described as a species of machinery for assisting a purchaser or mortgagee in his inquiries as to his vendor’s or mortgagor’s title previously to completing his dealing, and for securing his own position afterwards. ”

“ Taking all values, the cost of conveyance and duty reaches the high figure of 10% in the general run of transactions. The vendor as a rule has no costs. Indefeasible title is not obtainable, but frauds are almost unknown. A day or two usually suffices for all formalities. On large sales a further process known as the “purge” is undergone, which requires a few weeks and more expense, in order to guard against possible claims against which the deed registries afford no protection, such as dowries of wives, claims under guardianships, &c. ”

“ Registration of title has lately been introduced, on a voluntary basis, into the states of California, Oregon, Illinois, Massachusetts, Minnesota and Colorado, and also into Hawaii and the Philippines.
France.—In France registration of deeds is universal. Sales, mortgages, gifts and successions; easements, leases of over eighteen years, and transactions affecting the land to the extent of three years’ rent may lose priority if not registered. Wills need not be registered. Mortgages must be re-registered every ten years. Purchase deeds are registered by filing full copies. ”

“ The practical effect is that a purchaser can, by searching the register, find out exactly what deeds he ought to inquire for, and receives an assurance that if, after completion, he registers his own conveyance, no other deeds—even if they exist—will prevail against him. ”

“ Only absolute title is registered. All land granted by government, after the passing of the several acts, is placed on the register compulsorily. But voluntary applications are also made in very large numbers. It is said ordinary purchasers will not buy land unless the vendor first registers the title. The fees are very low—£1 to £3 is a usual maximum—though in some states, e.g. Victoria, the fees rise indefinitely, ad valorem, at a rate of about 10s. per £1000. Insurance funds are established to provide compensation for errors. ”

“ The title can usually be fully investigated from the documents in the registry. Official searches for mortgages are commonly resorted to, at a cost of about 5 francs. Under the monarchy the land system was practically copyhold tenure, but greater validity was attached to the Court Rolls than was the case in England. The present system was established by a law of 1790 after the abolition of seigniorial institutions in 1789. This was modified by the Code Napoleon, and further perfected by a law of 1855. The average value of transactions in France is very small. ”

“ It can hardly be said to be in active operation at the present day in any civilized country—in the sense in which that term is usually understood. Where dealings become more numerous and complicated, written instruments are required to express the intentions of the parties, and afterwards to supply evidence of the landowner’s title. ”

“ Even the person to whom the rent is paid is in many cases—probably, in England, in most cases—not the full owner, but only a life owner, or a trustee, whose powers of disposing of the property are of a strictly limited nature. ”

“ Under the operation of this act, at the expense of a slightly increased cost on all transactions during a few years, persons dealing with land in the county will ultimately experience great relief in the matter both of cost and of delay. The costs of a sale (including professional assistance, if required) will ultimately be for the vendor about one-fifth, and for the purchaser (at the most usual values) less than half, of the present expenses. The delay will be no more than in dealings with stock. ”

“ But this was only to be granted on a regular investigation of title, which, though not so strict as under the former act, yet necessarily involved time and cost. Possessory registration, however, was to be granted to any one who could show a prima facie title—a quick and cheap process. But the effect of such registration would not be immediately felt. It would not destroy existing adverse claims. It would only prevent new difficulties from arising. ”

“ In 1894, 1,159,995 transactions were registered in Prussia. In 1893, 938,708 were registered in Austria. Some idea of the extent to which small holdings prevail in these countries may be gathered from the fact that 36% of the sales and mortgages in Austria were for under £8, 6s. 8d. value—74% were for under £50. Owing to the ease and simplicity of the registers, it is not always necessary to employ professional help. When such help is required, the fees are low. In Vienna £1 is a very usual fee for the purchaser’s lawyer. £10 is seldom reached. In Germany the register is private. ”

“ Registries are established in all the considerable towns. The duty on sales amounts to the high figure of about 61/2% on the value. Part of this is allocated to registration, in addition to which a fixed fee of one franc, and stationers’ charges averaging 6 francs are also chargeable. ”