ISTT position on the land legislation
The Institute of Surveyors of Trinidad and Tobago (ISTT) was established in 1996 by the amalgamation of the Land Surveyors Association of Trinidad and Tobago, the Quantity Surveyor's Society of Trinidad and Tobago and ProVal (the Association of Valuation Surveyors). The land surveying members of the ISTT believe that as representatives of one of the two major professions, law and land surveying, whose roles are instrumental in the construction of a complete land registration information system, we should present our position on the Land legislation 2000 and its amendments currently before parliament and expound upon its potential impacts on the profession and the wider society.
As of June 2017, the World Bank Group ranks Trinidad and Tobago’s land registration system as 151st out of 187 economies in the world (http://www.doingbusiness.org/rankings). Trinidad and Tobago ranks lower than many of the countries in the Caribbean including St. Lucia, Grenada, Jamaica, and Barbados who all have or are in the process of installing comprehensive title registration information systems. This status is a sorry state for our wealthy and progressive country.
Systematic adjudication and titling programmes, such as that anticipated to be initiated by said legislation potentially provide many economic, social and environmental benefits to a country. In Trinidad and Tobago’s current economic depression, the benefit of the stimulation of the economy that can come from having a comprehensive land registration information system, containing all parcels and all their ownership rights, is immense. The system also provides a framework for equitable property taxation. The social benefits of a reduction in land conflict, and a perception of tenure security that result from all land rights being registered and supported are desirable. The clarified rights and boundary definitions will also provide decision making support for land management institutions, and lead to enhanced environmental protection.
The ISTT applauds the Government of Trinidad and Tobago for taking the initiative to conclude the process of instituting legislation to support the introduction of a comprehensive and complete land registration information system. This being said, the ISTT’s views on the gaps, inconsistencies, and omissions in the legislation, from a cadastral surveying perspective, are presented below, collated as General Comments and then Legislation Specific Comments.
- It is to be noted that, despite the undertaking of this process at the cost of the state, subsequent to the adjudication and titling exercises, for any redefinition or subdivision or any land transaction requiring land surveying, the costs will have to be borne by the landowner. This should be indicated to landowners, in the interest of full disclosure of impacts.
- It is extremely important that linkages between the information at the Registrar General’s Department and that at the Lands and Surveys Division be established and maintained for a complete picture of the nature, and physical extent of the interest of each parcel.
- In many instances, existing conflicts will not be resolved by the process and in fact, new conflicts will arise where they did not previously exist. Cadastral surveyors who have a wealth of experience in resolving boundaries are well aware of how often conflicts occur over the redefinition of and initial location of boundaries. The land tribunal should therefore be properly set up and well-resourced to hear and resolve issues expeditiously as they arise during the adjudication and titling process. There should also be a larger role for cadastral surveyors as permanent members of the Land Tribunal since attorneys would need to be guided in these matters.
Specific Comments relating to the individual pieces of land legislation
and their current amendments.
The Land Adjudication Amendment Bill
- Clause 4 of the Land Adjudication Amendment bill amends the Act to require the permission of the landowner, prior to entry for the purpose of surveying, as follows:
(8) A Demarcation Officer or Survey Officer may—
(a) with the permission of the owner or occupier; and
(b) on giving reasonable notice to the owner, at any reasonable time, after the notice is given, enter upon land within the adjudication area for the purpose of demarcating or surveying any parcel therein
This is inconsistent with current land surveying legislation since the Land Surveyors Act 1996 authorises the registered land surveyor to commence the cadastral, or boundary survey, even without permission, once notice is served. This is stated as follows in Clause 43 of the Land Surveyors Act 58:04:
43. (1) Before commencing any survey, the Trinidad and Tobago Land Surveyor, shall cause notice to be given to all proprietors of lands lying adjacent to the parcel being surveyed.
(4) Nothing in this regulation shall prevent a Trinidad and Tobago Land Surveyor from carrying out a survey after giving reasonable notice to any neighbouring proprietor, in unforeseen or unavoidable circumstances.
While this Land Adjudication Act may operate only within the limits of the adjudication area at any one time, surveying will continue to be carried out outside of the adjudication area with the land surveyor having this authority. The requirement for express permission, even after having given notice, has the potential to cause inordinate delay in the systematic adjudication and titling procedures. The adjudication and titling process for the entire country is already estimated to last for many years. The permission is required for the entry of the legal personnel since they do not enjoy this authority elsewhere in legislation.
- Clause 10(3) of the Land Adjudication Amendment bill, while stating that it operates notwithstanding the Land Surveyors Act 1996, is also inconsistent with existing legislation since the Land Survey Board makes all rules by which Registered Land Surveyors, in this case Cadastral Surveyors or TTLS, perform their professional duties. This is stated in the Land Surveyors Act 1996:
64. Subject to the approval of the Minister, the Board may make Regulations for carrying out the purposes of this Act and for giving full effect to its provisions and, without limiting the generality of the foregoing, may —
(d) prescribe any matter or thing relating to the establishment and maintenance of survey marks and boundary beacon/monuments,
(e) prescribe any matter or thing relating to the accuracy of surveys;
Clause 10(3) of the amendment states:
(3) Notwithstanding any provision of the Land Surveyors Act or of any regulation or rule made thereunder in preparing a demarcation map, the Survey Officer shall make only such field measurements as may be prescribed under this Act and that in his opinion are sufficient for parcel identification
Since the year 2000, when the land package was being passed, a consultancy to revise the Land Surveyors Act 1996 was supported by the state to allow the land surveying legislation to be amended to take into consideration these other pieces of land legislation. To date, the amendments to the land surveying legislation have not gone beyond the proposals presented by the consultancy and revised and agreed on by the Land Survey Board of Trinidad and Tobago. It is an appropriate time to push through these amendments as well for consistency and to allow the land surveyors legislation to specifically prescribe for the lowered survey precisions required of the systematic adjudication and titling process.
- The 7 days’ notice required in the Land Adjudication Act 2000 is inconsistent with the existing requirements for redefinition. The Adjudication Act states:
10. (1) Not less than seven clear days before the demarcation of land in an adjudication section is commenced, the Demarcation Officer shall give notice of the intended demarcation in that section, and of the time and place at which it will begin in a daily newspaper and in such manner as the Adjudication Officer shall deem to be most likely to bring the matter to the knowledge of the persons to be affected by that demarcation.
The Land Surveyors Act, however, states at Clause 43:
(3) Where lands are to be brought under the provisions of the Real Property Act, the purpose of the survey shall be stated and the period of the notice shall be seven clear days but in all other instances three clear days notice shall be given.
The Registration of Titles to Land Amendment bill
- Clause 20 is inconsistent with the requirement of land surveyors to search the cadastre and the registry prior to performing surveys as it now is amended to state:
An Attorney-at-law who holds, or is deemed to hold, a valid practising certificate under section 23 or 26 of the Legal Profession Act or his clerk may, on making an application in the prescribed form and on paying the prescribed fee—
(c) require an official search in respect of any parcel and the Registrar shall issue a certificate of official search setting forth particulars of the subsisting entries in the folio for the parcel.
The Land Surveyors Act 1969, however, requires of the land surveyor the following:
31. Prior to commencing any survey, the Trinidad and Tobago Land Surveyor shall obtain all information relevant to the proposed survey from those records normally available in the Land and Surveys Department and the office of the Registrar General.
It is hoped that land surveyors will not be excluded from accessing any information that will impact on the placement of boundaries to define the extent of rights that landowners possess.
The Land tribunal Amendment bill
- Cadastral Surveying and photogrammetry are two key disciplines that are not specifically mentioned but which should be Included in the legislation. The bill now states:
(3) Lay assessors referred to in subsections (1) and (2), shall be selected from persons who are qualified in the following disciplines:
(d) architectural, engineering or surveying;
This Clause should be amended to more grammatically and specifically state:
(d) architecture, engineering, cadastral surveying or photogrammetry
The ISTT submits these ideas for consideration as the legislation is taken forward to passage and implementation.