Adoption of the Report of the Special Select Committee on the Deeds Registry (Amendment) Bill 2012 – Bill No. 11 of 2012
5049 16 Jan, 2014
Mr. Nandlall: Thank you very much, Sir. It gives me great pleasure to rise to present this Report in relation to a very important and innovative piece of legislation which was fully debated in the House some time ago.
Unfortunately, this Report took quite some time before it reached the Order Paper. It then again was delayed - I suppose because of other pressing matters - from being presented. Fortunately today, I welcome the opportunity to present it.
Sir, there were many distinguishing and distinctive features of this Select Committee. First of all, it comprised representations from all the parties in the House. The Government, of course, was represented; the Alliance For Change was represented; and APNU, of course, was represented.
There were differences at different points in time in our deliberations, but fortunately those differences were reconciled and every decision which was made was consensually done.
What is even more refreshing is the fact that the Guyana Bar Association, which was perhaps the most important stakeholder, because of the nature of the Bill, the administration of it will have to be largely done by the legal profession. The Bar Association attended many sessions of those meetings, made written presentations that were adept and in-depth, very researched positions, as well as made several oral presentations.
Indeed, I will concede that the Bill which will be presented for its third reading is an almost complete overhaul from what was initially tabled, though it captures the singular mischief which it was intended to address. That is to ensure that a transported holder is not free to sell that property subject of the transport, fraudulently, to more than one purchaser, and passing transport even to a third purchaser, defrauding the prior two purchasers. That general concept was retained. The Bar Association and we in discussion were able to devise a far more elaborate, and I concede, elegant mechanism by which to capture that concept.
Attention was drawn to the Land Registry Act, where there is the mechanism of a prohibition which can be filed against the transfer of a title, where a property that is subject of a title is the subject of an agreement of sale or where someone claims an interest in that property that is held by title and wishes to add a caveat or an injunction against the absolute dealing, disposal, encumbering and/or alienation of that property. The Land Registry Act allows for a prohibition to be lodged for a caveat to be lodged. That legislation has, as an appendix to it, a form. That is the mechanism which was largely imported into this Bill and set out in a most elaborate way.
Care and caution had to have been exercised not to destroy the essential and foundational tenets of the Roman-Dutch system. In my presentation at the second reading stage of this Bill, I had outlined that under the Roman-Dutch system, the transport vests in its transportee absolute title, subject only to conditions stated on the transport or certain conditions enumerate in the Deeds Registry Act itself. So, care had to have been exercised to navigate around the provisions of the Act as well as to generally keep the Roman-Dutch concept. An interference with that could have caused conceptual difficulties in other areas of the law in relation to transport, for example, mortgages. That was a substantial hurdle which had to have been crossed.
We had to determine whether or not a purchase price or rather what percentage of the purchase price is required to have been paid or required to be paid before a person can be injuncted from selling his property. The Bar Association emphatically argued that it would have been unfair to injunct a person from selling his property by the mere payment of 10%. They wanted us to amend the law to allow for a 50% deposit. But, Sir, in practice, you would know that that is a rare occurrence. The 10% first normally is what is paid as a deposit. That agreement is then taken to the bank and a mortgage is obtained. That is how the balance of the purchase price is normally paid off.
The Members of the Committee stood strong against the position advanced by the Bar Association. I recall my Friends, Mr. Basil Williams and the Hon. Mr. Moses Nagamootoo, lending me strong support for the maintenance of the standard 10% deposit as a down payment.
Sir, we had to also deal with the establishment of a mechanism; having established that these agreements are going to be filed, how they are going to be recorded and annotated. The transport will obviously have to be annotated with some marking to say that it is now subject to an agreement of sale and some mechanism has to be established by law and administratively at the Deeds Registry to facilitate the registration and the filing of those agreements of sale so that they can be filed in an orderly manner and in a readily accessible manner.
We also had to deal with the situation where a purchaser may, for a malicious reason or without just cause, pay the 10% and then frustrate the vendor from disposing, alienating or selling his property by filing the prohibition against him so that he cannot deal with his property as an absolute owner, but then the purchaser refuses to complete the transaction in a timely manner. What does one do in that instance? While the thrust of this Bill is to protect the purchaser, we cannot, at the same time, do so in a manner that is disadvantageous to the transported owner. That very delicate balance had to have been struck.
We dealt with that whereby we allowed, firstly, the removal of the prohibition to be done by the filing of an affidavit by the prohibitor, that is the purchaser, or if the time delimited by the agreement of the sale – and we also stipulated by law that the agreement of sale must give a time when the transport is to be passed.
If a certain time elapses thereafter and the balance of the purchase price is not paid, so the vendor is not in a position to pass transport, then that vendor is not without remedy, he can approach a judge in a summary way. We have to ensure that we use language that will allow quick access to a judge and so we put in language to permit and facilitate a summary application to be made to a judge for the prohibition to be removed or declared abandoned and the purchase price there can be forfeited less reasonable expenses. Sir, that by and large is what the report contains and what transpired at the Select Committee.
I want to take this opportunity to thank all the Members, the Hon. Minister Irfaan Ali, the Hon. Cde. Jaffarally, the Hon. Cde Bibi Shadick, the Hon. Mr. Moses Nagamootoo, the Hon. Mr. Basil Williams, [Interruption] Mrs. Deborah Backer – I do not know whether they will accept the Comrade. I have to use very careful language. I do not want Mr. Williams to reject me publicly, on the floor. I believe Mr. Harmon was on the Committee as well. This was a Committee that had the contribution of everyone; it was a joint and most concerted effort. And it had the stakeholder playing a very, very, critical and constructive role in coining the final product which we have as the Bill itself.
Those are the few remarks that I will like to make at this stage until I am called upon by you again, Sir. [Applause]
Mr. Nandlall (Replying): I would like to thank the Members who spoke on the Report. I concur with the sentiments expressed. Sir, I would like to take this opportunity since the Hon. Member Mr. Nagamootoo raised the issue of hire purchase to say that through the Ministry of Trade the Drafting Department of the Attorney General’ Chamber is working to conclude a hire purchase Bill, a comprehensive and a modern hire purchase Bill, to address the very concerns and many more that the Hon. Member has raised. Hopefully that Bill will be tabled in the Parliament within the next two months or so. We are working on addressing those matters as well.
Sir, next I would respectfully ask that this Report be adopted as presented.
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