WHY CHANGE WHAT HAS WORKED WELL FOR SO LONG?

Dec 04, 2009 Features / Columnists, Peeping Tom

I have held firmly over the years to the singular view that what is mine is mine, and mine alone to determine how it should be disposed of lawfully.
If I own a property, then it is for me to decide to whom I should sell, even if having entered into an agreement of sale, I later change my mind or am forced to retreat from my original decision.
I do not also believe in changing something that has worked well for so long. The admixture of Roman Dutch and English land laws have served us well in resolving property disputes (it may not have pleased everyone but it has provided certainty when it comes to the sale of properties) and need not now be abandoned.
In a letter to the media, Attorney At Law Mohabir Anil Nandlall, who is also a Member of Parliament, recently argued that the system confers upon the purchaser no interest in land which forms the subject of the agreement. He correctly observes that the purchaser is limited to suing the vendor for specific performance and breach of contract if there is a failure to pass transport within the prescribed time or file an opposition to the passing of transport if the vendor attempts to sell to another person.
He proposes an addition of another limitation to absolute title by allowing for agreements of sale to be deemed as registered encumbrances, thus allowing the purchasers under such agreements an interest in the property concerned.
I respect the learned view of Mr. Anil Nandlall but I disagree with the changes that he is proposing to the Deeds Registry Act. I would caution the ruling administration to tread carefully lest it disturb the well-laid legal matting which has been developed through our historic adherence of the admixture of Roman Dutch and English property laws in Guyana.
The argument may be that a person who has entered into an agreement of sale is left defenceless if the owner changes his or her mind and decides to sell to another or even to many others. But what about the legal knots that will develop should Mr. Nandlall’s amendment be passed into law and all those persons with an interest in a property have to challenge a sale made by the person holding the transport?
Such a proposition is going to open the floodgates to problems because there will be a lot of snake oil peddlers going around to grannies urging them to sell their properties, and when the grannies finally realize that they have made a mistake, they will be unable to rescind their agreements since the person with whom they have entered into the agreements has acquired an interest under the law.
Imagine what will happen when Peeping Tom dies and his executor goes to pass transport, only to discover that somebody produces some bogus agreement of sale which they claim they had entered into before my passing.
There is no need in my humble opinion to amend the Deeds Registry Act. No need at all. There is also the other side. The same Deeds Registry Act also protects innocent transportees.
The Caribbean Court of Justice in a recent decision observed that the policy of that Act is two-fold, firstly to produce a measure of certainty in real property transactions and secondly to assure innocent transportees who have purchased for value, who have obtained that for which they have bargained and who have otherwise complied with the procedural legal requirements, that their transports, if challenged, will be held to be good.
Just recently there were rumors circulating that the Ministry of Housing was threatening to repossess transported house lots where the owners did not fulfill the requirements of the agreement of sale to build their homes by a specified period. I hope the Ministry of Housing and Water clarifies these reports that are circulating because it is difficult to imagine how the Ministry can repossess transported property. Would this not be in violation of the indefeasible title that is conferred on the transportee?
We have to be careful in Guyana that we do not rush to disturb that which has worked for so many years. It would be better if greater attention is concentrated in ensuring the more efficient workings of the justice system so as to speed up land sales and quickly resolve the many outstanding property disputes. These are real impediments to investment In Guyana. It is holding back this country and is an area where greater urgency is needed.

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WHY CHANGE WHAT HAS WORKED WELL FOR SO LONG?

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