Our last discussions focused on the general significance and application of registration of real property. In this section, an attempt will be made to consider the understanding and coverage of registration of real property in our country. Both the strong sides and limitations will be highlighted taking into account both the legislative framework and practices.
This section will help the student:
explain the importance of detailed laws covering many parts of registration of real property and related matters,
identify the provisions of the Civil Code addressing registration of real property and limitations thereto.
distinguish the present federal and regional legislations addressing rural land registration, and
evaluate the urban real property registration system and problems thereof.
The Need for Legislation
One feature of an effective cadastre is that it is founded on a strong and practical legislation. All systems depend on a sound legal framework of land laws and specific laws on land registration and cadastre. Land laws must establish an effective cadastre and indicate registrable rights including those other than ownership. In this regard, governments must play the role of facilitating the operation of a land and property market, enable a mortgage market to function and ensure that citizens enjoy security of tenure by providing particular laws.
Land registration must be established on solid legal ground. John Manthorpe recognises seven important elements that land registration laws have to address which are:
Creating the institutional authority responsible for ensuring the impartial maintenance of land registers.
Determining the method by which a register for the whole jurisdiction is to be compiled (systematic or sporadic).
Establishing systems and procedures for land transfer and registration of other interests in land.
Specifying if the land titles are to be guaranteed by the State (such as paying compensation in case of error).
Defining rules for original adjudication of registered title.
Specifying if the land register is title system or deed system, and
Creating arrangements whereby subordinate rules and regulations can be made by the registration body to facilitate development and administrative change.
The 1960 Civil Code
Though inapplicable, the fundamental legislation on real property registration is the Civil Code. One title, Title X, is devoted for this purpose and is entitled as “Registers of Immovable Property”. The title includes 93 articles governing this important area of high economic significance. These provisions are contained in 4 chapters. The Code does not provide different chapters or sections for cadastre and land register; it regulates cadastre and land registration in a unified approach.
It is of particular importance to mention that the title on register of immovables is not yet applicable as its operation has been suspended. Sadly, the Civil Code provides the following provisions:
Art. 3363. - Registers of immovable property.
(1) Title X of this Code relating to registers of immovable property shall not come into force until a date to be fixed by Order published in the Negarit Gazeta.
(2) Until such date has been fixed, the provisions of the following Articles in this Chapter shall apply in lieu of the provisions of Title X.
Art. 3364. - Transfer or extinction of ownership.
The customary rules relating to the formalities to be complied with so that the transfer or extinction of the ownership of immovable property may be set up against third parties shall apply.
Art. 3365. - Easements and restrictions to ownership.
The customary rules relating to the formalities to be complied with so that easements, promises of sale, rights of pre-emption or provisions preventing attachment or assignment may be set up against third parties shall apply.
From the above provisions, we understand that the provisions on register of real property are not binding. Instead, customary law will be applicable to govern different situations.
Though this is unfortunately the case, we shall discuss the major parts of the Title on register of immovables for different reasons. Firstly, we are very hopeful that the government will soon take measures to apply these provisions as the importance of real property registration for sustainable development is understood quite better than any time before. Secondly, although, these provisions may not be complete and up to date due to the various changes that occurred in Ethiopia after their adoption, they meet the minimum standards for cadastre and land registration and could, if applied, contribute irreplaceably to the country’s development. Third, the awkward customary practices far behind in the administration of real property including cadastre and land register.
Coming back to our main discussion, Chapter 1 of Title X regulates “keeping of registers and publicity”. The principle of registration of real property is provided under Art. 1553:
Art. 1553. Principle
Registers of immovable property shall be kept, in each Awradja Guezat of the Empire of Ethiopia, by the keepers of registers of immovable property.
What do you learn from the reading of the above provision? What makes and what does not make sense?
We can understand that the provision has already recognized the irreplaceable importance of real property registration, i.e. registration of land and buildings irrespective of the mode of ownership to land. It is also clear that this provision invariably includes both cadastre and land registration. In other words, in our context (context of the Civil Code) “registers of immovable property” means real property registration which in turn means cadastre and land registration.
The word “Awradja Guezat” is an obsolete word at present and may contextually mean “Region”.
Please carefully read the following 4 provisions:
Art. 1556. - Principal registers.
In each place of conservation and for each district, a register of property
and a register of mortgages shall be kept.
Art. 1557. - Register of immovables.
Where the state of the cadastre allows the adoption of such system, a register
of immovables shall be kept in each district.
Art. 1558. - Register of owners.
Where the state of the cadastre does not allow the drawing up of a register of immovables, a register of owners shall be kept in each district instead of such register.
Art. 1559. - Other registers.
The Ministry of Agriculture may, by a general directive, or by a directive specially applicable to one or more places of conservation, prescribe the keeping of additional registers.
What are the main types of registration of an immovable property? How many types of real property registration are envisaged by the above provisions?
There are two principal types of real property registration, namely, a register of property and a register of mortgage. In addition, where the situation allows, a register of immovable shall be maintained. If the situation does not allow the establishment of a register of immovable, a register of owners shall be kept. The law also makes it possible the keeping of additional registers. Let us try to explain the meaning, nature, and content of each of these types of registration of real property.
Register of property
What is property? Property here refers to the interests or rights attached to an immovable object, i.e. land or buildings. And what is register of property?
Art. 1567. Register of property. - 1. Principle.
All acts, public or private, made inter vivos or mortis causa purporting to recognize, transfer, modify or extinguish the right of ownership of one or more persons over an immovable shall be entered in the register of property.
So register of property means registration or record of acts such as contracts which establish, transfer, modify or extinguish ownership right over land or building. But we should understand that the interest or right over an immovable is not only ownership; it can also be other such as use right and possession. This definition conforms to what is normally referred to as land registration as we saw earlier.
What are acts? Please carefully read the following provisions of the Civil Code:
Art: 1568. 2. Particular acts concerning property.
In particular, the following shall be entered in the register of property
in conformity with Art. 1567:
(a) acts of sale, donation, contribution in a partnership, partition compromise and contracts creating joint ownership, where such acts have an immovable as their subject-matter; and
(b) acts by which an heir or a legatee accepts a succession or a legacy relating to an immovable; and
(c) judgments which pronounce the annulment, revocation or dissolution of the acts abovementioned; and
( d) judgments which give a decision as to the ownership of an immovable upon an action for the recovery thereof; and
(e) judgments which pronounce the sale by auction of an immovable as a consequence of an attachment effected by the creditors.
Art. 1569. - 3. Acts concerning other rights over immovables.
The following shall also be entered in the register of property:
(a) all acts purporting to create, recognize, transfer, modify or extinguish a right of bare ownership or usufruct or a right of habitation over an immovable; and
(b) all acts purporting to create, recognize, modify or extinguish a servitude; and
(c) all acts purporting to create, transfer, modify or extinguish a contractual restriction of a right of ownership or of usufruct relating to an immovable.
Art. 1570. - 4. Legal actions.
Legal actions which aim at obtaining a judgment recognizing, transferring, dissolving or extinguishing the right of ownership or another right in rem over immovables shall also be entered in the register of property.
Art. 1571. - 5. Leases and acts concerning rents not fallen due.
The following shall be entered in the register of property:
(a) leases relating to a dwelling-house or apartment, concluded for a period of more than five years; and
(b) assignments of rents not fallen due, covenanted for a period of more than three years; and
(c) discharges for rents not fallen due given in advance to a lessee or farmer-tenant for a period of more than three years.
We understand that all types of acts related to ownership, those related to rights other than ownership, leases and court judgements relating to immovables are registered in the register of property.
Register of Mortgages
As you may study in your course on Security Devices, Mortgage is a system by which debtors may borrow money by giving their immovable as a security. Actually in Ethiopia, it emanates from contract and the law or court judgment. The Nature and formation and effect of mortgage is discussed under article 3041 and following of the civil code, while its registration is discussed somewhere else.
And what is register of mortgage?
Art. 1573. - Register of mortgages. - 1. Principe.
The following shall be entered in the register of mortgages:
(a) all acts purporting to create, modify or extinguish a right of mortgage or antichresis; and
(b) all acts purporting to transfer a debt secured by a mortgage or a right of antichresis or purporting to assign the benefit of priority attributed to such right by the law.
Art. 1574. - 2. Attachment.
Applications for the judicial sale of an immovable on the initiative of a creditor, whether or not enjoying a right of mortgage on such immovable, shall also be entered in the regjster of mortgages.
In the modern economy, mortgage plays a tremendous role by enhancing financial transactions in the credit market and security for creditors. Recording the acts that establish such an important mechanism is by far important. This is achieved through register of mortgages.
Register of Immovable
The third type of registration of real property in the Civil Code is register of immovables.
Art. 1575. - Register of immovables. - 1. Principle.
( 1 ) Every immovable existing within the district shall be registered in the register of immovables under its number in the cadastre, and a leaf be assigned to it.
(2) The register shall contain, on each of its leaves, a summary description of the immovable made with the object of its individualization.
(3) All acts subject to registration which concern the immovable shall be mentioned on the leaf with an indication of their reference number in other registers and of their date.
Art. 1576. - 2. Conformity with cadastra1 survey plan.
(1) The registration and the description of each immovable in the register of immovables shall be made according to the measurements and indications of the cadastral survey plan.
(2) The register of immovables shall be kept in permanent and absolute conformity with such plan.
What do you understand from the reading of the above provisions? Register of immovable involves the entrance of an immovable property in a cadastre system having a distinct number and leaf. It also involves the description of the immovable property unit which involves, among others, the area, location, boundary description and level of fertility. This is in conformity with what we traditionally refer to as cadastre as we mentioned before.
Moreover, all acts subject to registration which concern the immovable shall be mentioned on the leaf with an indication of their reference number in other registers mainly in the register of property. From this we can understand that the different types of registration of real property such as register of property and register of immovables are interdependent and support each other.
Another important point worth mentioning here is that registration and description of real property during register of immovables is made based on the cadastral surveying that precedes the registration. The register of immovables shall be kept in permanent and absolute conformity with the cadastral survey plan.
Do you recall the meaning of cadastral surveying? If not, please go back and refer to the term.
Register of Owners
As was mentioned, when register of immovables is not feasible in the circumstances, then register of owners shall be kept. What does register of owners mean?
Art. 1583. - Register of owners. - 1. Principle.
The register of owners shall contain, classed in alphabetical order, leaves relating to each one of the persons who, in an act registered in one of the principal registers, are indicated as being owners of an immovable situate in the district.
Art. 1584. - 2. Immovable owned in common
(1) Where an immovable belongs to several owners a leaf shall be drawn up in the name of each joint owner.
(2) The position of each one shall be mentioned in the leaf relating to him.
Art. 1585. - 3. Ownership of several immovables.
Where a person owns several immovables in a district, there shall be drawn up in his name as many leaves as he has separate immovables.
Register of owners involves the registration of the names of the persons who are indicated as owners of a real property according to acts relating to register of property or register of mortgages. It does not matter whether a single real property is owned or possessed by several persons or a single person owns or possesses several immovable objects.
Effects of Registration
Certainly, registration of real property has some legal effects. Please read carefully the following provisions and try to apprehend some of the major effects of registration.
Art. 1637. - Duty to register acts.
(1) The keepers of registers of immovable property may not decide on the validity of acts which are presented to them for registration in the registers.
(2) They shall register such acts without delay when the formalities required by the law have been performed by the interested persons.
(3) The registration of an act in the registers of immovable property shall not constitute a decision as to its validity.
Art. 1638. - Certain date.
The registration made in the registers of immovable property shall confer a certain date to the acts to which such registration relates or which are filed in the archives of the place of conservation as complementary or supporting documents.
Art. 1640., - Ignorance of a registration.
(1) No person may take advantage of the fact that he did not know of a registration entered in the registers of immovable property.
(2) Nothing shall affect the liability of the keeper of the registers and of the State, where such ignorance is due to a fault in the functioning of the service.
Art. 1641. - Conflict between two registrations.
( 1) Where two persons have required from the same person a right subject to registration, the one whose right has been registered first in the registers of immovable property shall be preferred.
(2) The right of the second shall be extinguished insofar as it is in opposition to the right which has been registered first.
(3) Nothing shall affect the rights of such second person against the person from whom he has acquired the immovable.
Art. 1642. - Rights registered on the same day.
( 1) Where two rights which are incompatible with each other are entered in the register on the same day, preference shall be given to the person whose title is the older.
(2) Where the titles are equally old or the priority of one in relation to the other cannot be established, preference shall be given to that number of the registration which in the register comes before.
Art. 1644. - Bad faith.
(1) The bad faith of the person who has requested the registration or required the right to which the registration relates shall not affect the validity of the registration.
(2) In such case the person to whom the registration is prejudicial may claim damages by proving in a clear manner the bad faith of the defendant.
Art. l646. -- Notice of registration to the owner.
(1) The person who has registered a right in the registers of immovable property shall, within eight days, serve on the owner of the immovable to which such right relates a copy, certified by the keeper of the registers, of the form which has been entered in the registers.
(2) He shall be liable for the prejudice that may be caused to the owner of the immovable or to third parties by reason of his failing to comply with such formality.
One important thing mentioned here is the relationship between registration and validity of the act such as contract relating to the immovable. Registration has nothing to do with validity of the contract/act.
Do you remember factors affecting validity of contracts in your study of Law of Contracts course? Please once go to Art. 1678 of the Civil Code and recall them. Here we are clearly told that “The registration of an act in the registers of immovable property shall not constitute a decision as to its validity.” If so, legally speaking, what has registration to do with? It has to do with publicity. Please read the following provisions of the Civil Code:
Art. 1561. - Publicity of registers. 1. Principle.
The registers of immovable property are public.
Art. 1562. 2. Registers of immovables and of owners.
( 1) Keepers of registers shall, on request, deliver a certified true copy of the leaf concerning a particular immovable which is to be found in the registers of immovables.
(2) They shall, on request, deliver a certified true copy of the leaf or leaves concerning a particular owner which are to be found in the register of owners.
(3) They shall, where necessary, deliver a certificate showing that the leaf of an immovable does not contain any registration or that no leaf concerning a particular owner exists in the register.
Art. 1563. - 3. Principal registers or supporting documents.
(1) Keepers of registers of immovable property shall on request deliver certified true copies of the acts which are registered in the registers of property or of mortgages.
(2) They shall on request deliver certified true copies of the supporting documents kept by them.
Art. 1564. - 4. Form of copies or certificates.
All copies and all certificates delivered by the keeper of registers of immovable property shall be of no effect unless they bear the seal of the place of conservation, the signature of the keeper or of a person authorized to deliver the copy or the certificate, and an indication of the date on which the copy or the certificate was delivered.
Art. 1565. – Fees to be charged.
(1) The Ministry of Agriculture shall fix the fees to be charged in respect of the various registrations in the registers of immovable property.
(2) It shall fix the fees to be charged in respect of the delivery of copies or certificates by the keepers of registers.
What we understand is that the registration of real property is open to the public and that the registration authority or officer has the primary task or duty of giving any requested information as to the various types of register-property register, register of mortgages, register of immovables and register of owners. Any interested part has the right to have access to this land related information for any purpose or transaction with owners, possessors, or immovables. The government will in return get considerable income by charging fair fees for the important service it is rendering through efficient supply of immovable information. Dear student this is actually just the most important operation of Land Information Systems in almost all parts of the world today.
Once the registration is kept public and accessible to the public, no one can argue on the ground of lack of knowledge about any information contained in the register of any type. In fact, the real property registration officer can be held liable for any professional fault committed relating to the task.
Have you now seen that by virtue of the Civil Code provisions just mentioned here, registration does not affect the validity of the contract as between the contracting parties? But we should mention here that today on the part of the courts this issue is very controversial and that the Federal Supreme Court has recently decided that registration affects validity of the contract on a real property. What is your position? Please read the attached case?
Dear student, the Civil Code provisions on registration of real property do not make specific reference to rural and urban land separately. It may be understood that they apply to both rural and urban land. Indeed, there is no strong reason to have different laws and structures for registration of property with respect to rural and urban land.
Nowadays, the Ethiopian government has issued various land legislations both at federal and regional levels. Such laws also principally deal with registration of real property. It is really a big question if these provisions are as complete as the provisions of the Civil Code on registration, and if they are meant to serve same purpose as the Civil Code.
Setting aside that issue, the Government of Ethiopia proclaimed the Federal Rural Land Administration proclamation no. 89/1997. On top of this, the Federal Government recently enacted the Federal Rural Land Administration and Land Use proclamation no. 456/2005 by repealing the former one. This law is generally directed towards addressing land tenure problems.
More specifically, the need to establish a conducive system of rural land administration that promotes the conservation of natural resource is considered as a means to solve the later. In addition, putting legal conditions in place which are conducive to enhance and strengthen the land use rights of farmers, pastoralists and private investors are stipulated as objectives in the same provision. Above all, the necessity to establish an information database that enables to identify the size, direction and use rights of the different types of land holdings in the country is also one area of interest to the Federal Government. In the official document of the Federal Government called SDPRP, it is stated that the users’ rights of farmers shall be protected through registration and provided with certificate of user rights.
In addition, the Federal Government five years strategic plan document explains some action to be taken pertinent to land administration and land management issues. According to the same document, it is believed that “to develop and strengthen the natural resource information system, the establishment of database at Woreda level will be conducted. The plan encompasses the establishment of natural resource database in 550 Woredas that are found in the country. The same source further states that, in the next five years around 6.7 millions households will receive first level certificate. In addition to this, studies and research will be conducted in the next 5 years in pastorals and Agro-pastoralist area of the country which focus on the identification of the property rights and the development of methodology to record these rights.
The Federal constitution Article 52 (2) (d) empowers Regional states to Administer land and natural resources. However, member States of the Federal Government land and natural resources laws shall be implemented in accordance with the law enacted by the Federal Government.
After 1997 some policy initiatives are made towards establishing sound land management and land administration system through rural land registration and certification in Oromia, Amhara, Tigray and Southern Nation Nationalities and People Regional States. Accordingly, several of these states have adopted rural land administration laws. For example, ANRS has endorsed its own land law proclamation no. 46/ 2000. This proclamation enables the state to determine the administration and use of the rural land. Article 6(3) of the same states that, “so long as the land users utilize the land according to the established rules, this proclamation assures and secures their holding and use rights” It further states that “The objectives of the rural land administration and use policy and proclamation are directed towards enabling the peasant to work for sustainable development and making the same the beneficiary of such development by ensuring tenure security” To implement the objectives of this law the state enacted proclamation no. 47/2000 that established the agency called Environmental Protection, Land Administration and Use Authority ( EPLAUA).
The Regional council of ANRS later replaced the Rural Land Administration and Use Proclamation no. 46/2000 by proclamation no. 133/2006 for several reasons. This law dictates that, “any Rural Land given to the right users shall be measured and the cadastral maps get prepared by the authority in traditional way or modern tool. Hence, a system of unique identifier shall be designed and implemented to clearly understand each parcel of land. The demarcation that indicates the boundary shall, also, be made on the land”
On the other hand, Article 23 of the same is dealing about rural land registration and data maintaining. Sub-Article 1 of this Article stipulates that any land measured by the authority shall, pursuant to this proclamation be registered in rural land registration book. To implement the provision indicated under sub-Article 1 of this Article the land registration shall be carried out including the information explaining the full name of the land holder, the means of holding acquired, boundaries of the land, the fertility status, the land use type and the obligation of the land holder.
On top of this, Article 24 sub-Article 1 of the same states that any person, granted rural land shall be given the land holding certificate in which the details of the land is registered by the authority prepared by his name and his photograph fixed thereon. Accordingly, the holding certification is deemed to be legal certificate of the holder. Proclamation no. 133/2006 is supplemented by a regulation.
Other regional laws include A Proclamation Provided to Determine the Administration and Use of Rural Land in Tigray Proc.No.23/1997 (amended in 2002), A Proclamation to Provide for Oromia Rural Land Use and Administration Proc.No.56/2002 (and a regulation thereof in 2003), and A Proclamation to Provide for Rural Land Use and Administration in the Southern Nations, Nationalities and Peoples of 2003.
For a comprehensive understanding, please look at the following table which gives a summary of each of the pertinent laws based on the criteria of certification.
Tigray 1997 and its amendment 2002
Certificates/ book of holding/title deed
If jointly owned, it should be issued in the name of both spouses
Spouses may agree for joint ownership after marriage.
Husband and wife shall be jointly certified to their common holding land.
In case of polygamy, a husband is allowed to get a joint certificate with only one wife and the other gets independently.
If land is rented out, the book of holding remains with the holder.
Joint certification of husband and wife.
Title deed remains with the holder if land is rented out
It is issued in the name of the household head only, i.e., the name of the spouse does not appear in the certificate.
Table: Synopsis of Rural Land Administration and Use Proclamations on certification
Dear student, it was already mentioned that the Civil Code provisions on registration of real property do not make distinction as between rural and urban land. Apart from that, while there are emerging laws with regard to rural land registration, urban real property registration, if at all exists, is done with out legislations; there are different customary activities here and there.
It is worthy of mention here that the various laws on rural land use and administration have followed a separate direction in the sense that they address rural land and disregard the urban one. That leaves the urban land registration almost unregulated which is really astonishing and even dangerous.
In a recent study made regarding real property registration in Bahir Dar city, many experts (both local and international) preferred that the urban real property registration be made by the same body and laws relating to the rural land registration in the respective region.
The responses from 20 interviewees (10 from EPLAUA and 10 from the Municipality and Bureau of Urban Works and Development) is shown in the following table:
Of the two real estate registration authorities (the Municipality/EPLAUA) which do you think is better to effect real property registration?
EPLAUA: 16 Municipality: 4
.Institutional arrangement in operating real estate registration in Bahir Dar
The justifications given for choosing EPLAUA for handling the real property registration both in rural and urban areas are many. The first is the far better available human, legal, technical and financial resources already available in EPLAUA. The second justification is related to the commonality of the nature, principles, objectives and significances, evaluation frameworks and technologies of real property registration in respect of both the rural and urban land. The third reason is the saving of human, financial and technological resources. The fourth is related to the need for the uniformity of the responses given to similar various problems in land administration. The fifth reason is related to payment of compensation during expropriation. This needs to be done based on similar rules to attain the required fairness and equality. The last reason pertains to the urban expansion that is happening in Amhara region at an alarming rate. With similar institutions and laws being involved in the land administration in the region, it will be quite easy to administer the newly incorporated rural lands to the urban territory. We can add to these the current global trend in the world towards multipurpose cadastre and cooperation.
What is your position with regard to this issue? Do you agree with the above assertions? Why? Why not?
Real Property Registration Authorities
It is now time to say few words about the institutional set up of real property registration in Ethiopia. The Civil Code has the following to say about this matter:
Art. 1553. - Principle.
Registers of immovable property shall be kept, in each Awradja Guezat of the Empire of Ethiopia, by the keepers of registers of immovable property.
Art. 1554. - Organization of the places of Conservation of registers.
(1) The appointment and the status of the keepers of registers of immovable property and of their assistants shall be as prescribed by the Ministry of Agriculture.
(2) The same Ministry shall prescribe the material organization of the places of conservation of the registers of immovable property and ensure the regularity of their functioning.
(3) It shall take the necessary measures for the keeping and the conservation of' registers of immovable property.
What these provisions tell us is that registration of real property will be widely applicable in all parts of the country. And it is the Ministry of Agriculture that has the primary task of establishing the registration offices together with the required personnel and other matters.
Actually, at present, the authorities of registration of real property are different for rural real property and urban real property. As to the rural property, the federal land administration and use proclamation makes it clear that the regional governments can establish authorities for the purpose. Accordingly, states have established public organs for addressing environmental protection, land administration and use activities. For, example in ANRS, the Environmental Protection, Land Administration and Use Authority was established in 2000 by proclamation. The same is true for other regional states.
Regarding urban real property, it is again important to remember that legislation is non-existent to address registration of property, especially the land register component. Even worse, the registration practice is presently quite incomplete, covers very few urban places, and quite traditional. For example, in Bahir Dar cadastre was started in September 1999. Spatial data collection was done through detail topography surveying work. Parallel to the surveying work, field investigation (collection of attribute data) was done. When we see the scope of the project coverage and work performed at that time, ground surveying and socio-economic data collection work was completed in 8 Kebeles (former Kebeles 03,04,05,06,12,13,15 and 16) out of the former 17. The completed number of plots was 7,100 on an area of 820 hectares.
But, since 2004, the data collection and updating activities had stopped, which hampered the completion of the intended project. That means the real property registration process had ceased to operate. The reasons for this are: lack of general awareness of cadastre, lack of understanding the significance of cadastre on the part of the administrators in the municipality, operating the system by simple guess with out clear guidelines and procedures (e.g., no regulations), lack of correct attribute and socio-economic data, lack of fairness and independence where the powerful people were advantaged at the cost of the weaker people, non-conformity with the physical planning resulting in such as closing roads. These problems in turn resulted in division of opinion among the task force themselves- whether it should continue or not in that way; and chaos in the urban people. Only in 2006, a new project was designed to commence the stopped real estate registration system. Time will reveal if the new project is going to be successful.
Other cities also experienced such cadastral practice in quite sporadic fashion. In Ethiopia, the cadastral systems, when they exist, are handled by municipalities. The municipalities normally attempt the activity without any coordination with the rural authorities of same purpose. On the other hand, land register, i.e. registration of contracts of sale of building are conducted by Justice Offices whose related tasks are given by various legislations. In fact, in the land registration process, the copy of these acts will also be archived in the municipalities after the justice offices prove that the contracts are made in validity.
Please read the following excerpt regarding land registration procedure in Addis Ababa city and Bahir Dar City.
The Addis Ababa Municipality has been practicing in transferring and registering immovable properties for long without authority. There are proclamations 49 and regulations 50 as to the establishment of the town of Addis Ababa as an at body and as to the issue and registration of new title deeds in case of sale and gift of property for the registration of any contract concerning land respectively. The collection of fees and issuance of new title deeds is possible if and only if there is registration.
But later on a legislation is issued which obliges the Urban Administration to effect the registration of ownership right of immovable, especia11y houses, and the transfer of ownerships. So it is the Urban administration, particularly the "contract and Registration Main Section”, which transfers ownership rights over immovable properties when, for example, the owner sells his property to a certain buyer.
The Need for Modern Real Estate Management in Urban Ethiopia: the Case of Bahir Dar City (MELKAMU Belachew Moges, Ethiopia) from www.fig.net
Land Registration Procedures (in Bahir Dar)
For land registration to be effected, there has to be some act or decision based on which ownership is transferred from one person to the other. This could be sale, donation, succession, or court decision for debt. The direct observation of the practice reveals that the procedure is different depending on the cause of transfer.
In the case of sale and donation, the parties must first go to the Justice Office. Whereas in the case of succession or will they need not go to the Justice Office and instead can go directly to the Municipality though the Office can register the will document in case of request. This is true of transfer due to court decision with regard to debt. The Municipality checks and receives the court decision and transfers ownership title to the applicant. In these cases of succession and debt based transfer, the amount of fee to be paid by the applicant is decided by the court.
Looking at the steps of land registration in the more common situations of sale and donation, the procedure is the result of the interplay between the Justice Office and the Municipality. The parties to the contract must bring together the valid contract of sale, acquisition document, the parcel map, the design plan, and receipt for tax payment during their application for registration. The ‘notary’ ensures that all these are fulfilled before ordering further process.
Having insured the fulfilment of all required documents, it sends a letter to the Municipality requesting to check if the building is really located in the place as mentioned in the sale contract, if it is free from debt or court attachment, and requesting the estimated value of the property. At the same time, it sends another letter to the Ethiopian Commercial Bank if the Bank has not taken the building as security for debt. The requested bodies respond accordingly including statement as to the date of acquisition, the type of land use, address and area of the property.
Then the Justice Office sends the estimated value of the building to the Finance Unit (located in the Municipality’s compound) in a letter. This Unit charges 2% of the value as tax and the Justice Office is notified about this fact.
Finally, the Justice Office approves the sale or donation contract, and maintains its own file for each applicant which contains the contractual document, acquisition document, the parcel map, the design plan, and receipt for tax payment. It then sends a letter to the Municipality stating that it has approved the contract and requests the transfer of ownership title to the applicant. The Municipality does so and opens a new file for the new owner. The file of the transferor is considered as dead file but is kept in the archive for any future reference.
Registration of immovable properties includes cadastre and land registers, which are important means of developing efficient information systems not only in Ethiopia but also in any country. A cadastre is just a system of writing or recording individual land parcels or real properties. In other words, it is a systematic description of the land units within a given area. Technically, this description is made by the cadastral maps which represent the graphical indices of the individual parcels showing the relative location of all parcels in a given region, and by written or textual records which represent the attribute files of the cadastre, in parallel. The most essential information in the textual files is the identification number and the area of the unit, usually differentiated by the type of land use. It normally provides parcel-based information.
Cadastre serves quite several purposes: it brings about a guaranteed ownership and secured land tenure, it provides security for credit and improves investment, it helps develop and monitor land markets, it highly enhances taxation, it helps reduce land disputes, it helps facilitate urban planning and infrastructure development, and so on.
Land register or land registration, on the other hand, refers to Land as a legal object. Stated otherwise, it refers to the public provision of security of property rights to land such as ownership, mortgage, easements and leases.
For long, these two methods have been handled by separate registry and institutions. However, nowadays, they are increasingly coming together to form a unified or integrated registry. Some countries such as Austria, Hungary, and Sweden (the Land Data Bank System) have this harmonised or unified land registry system called multipurpose cadastre.
In Ethiopia, the fundamental legislation on real property registration is the Civil Code though inapplicable. One title, Title X, includes 93 articles governing this important area of high economic significance. The code envisages two principal types of real property registration, namely, a register of property and a register of mortgage. In addition, where the situation allows, a register of immovable shall be maintained. If the situation does not allow the establishment of a register of immovable, a register of owners shall be kept. The law also makes it possible the keeping of additional registers.
The Civil Code does not make distinction as to rural land registration and urban land registration. However, the Ethiopian government has issued various rural land legislations both at federal and regional levels. Such laws also principally deal with registration of real property, i.e. rural land.
It is worthy of mention here that the various laws on rural land use and administration, unlike the provisions of the Civil Code, have followed a separate direction in the sense that they address rural land and disregard the urban one. That leaves the urban land unregulated especially in matters of registration; and the registration practice is presently quite incomplete, covers very few urban places, and quite traditional.
At present, the authorities of registration of real property are different for rural real property and urban real property. As to the rural property, the federal land administration and use proclamation makes it clear that the regional governments can establish authorities for the purpose. Accordingly, states have established public organs for addressing environmental protection, land administration and use activities. For, example in ANRS, the Environmental Protection, Land Administration and Use Authority was established in 2000 by proclamation. The same is true for other regional states.
In urban areas, municipalities handle the cadastral systems, when they exist. The municipalities normally attempt the activity without any coordination with the rural authorities of same purpose. On the other hand, land register, i.e. registration of contracts of sale of building are mostly conducted by Justice Offices whose related tasks are given by various legislations. In the land registration process, the copy of these acts will be archived both in the municipalities and the justice offices; however practices may vary from place to place in the country.