Jitlesta r-Rapport dwar titjib fir-Registru ta' l-Artijiet u r-Registru Pubbliku

The members of the Commission were given an individual assignment to report on particular points of the Commission's terms of reference. This blueprint focuses on the main points of the various reports. However, while a member's specialised report is summarised as faithfully as possible, proposals spelt out at the end of each section summarise the whole Commission's feelings. The Commission had to report on six items -

1. Certainty of Ownership
2. Comprehensive data bank
3. Elimination of Duplication
4. Guaranteed list of numbers (PR)
5. Civil Status
6. Administrative matters.

The Commission's members were as follows:

Mr. Godfrey Demarco -Permanent Secretary, Ministry of Justice - Chairman

Dr. Marco Burlo` -President Notarial Council - Member

Dr. Godwin Grima - Director Land Registry - Member

Dr. Joe Sapiano - Director Public Registry - Member

Dr. Joe Sammut - Mid-Med Bank Legal Office - Member

Mr Joe Church - Secretary

1. Certainty of Ownership

Drs. Joe Sammut and Marco Burlo's report centred on the objective of certainty as to title to immoveable property. principle within the Maltese social context. On these islands, the single most important investment undertaken by Maltese families is the acquisition of their own residences. On the other hand, the building industry and property transfers is one of the pillars of our economy. All this revolves around the guarantees meted out by the commercial banks. It is therefore imperative that:

• The level of efficiency reached at the LR must be consolidated;
• This must be complemented by the issuance of official lists from the PR. This is the core issue.

Proposals

(i) Indices kept at present must be complemented by:

1. List of interdicted persons to be inserted into that of Enrolments (PR);
2. expropriation notices/orders (LR);
3. List of Orders issued by the PA while orders and prohibitions affecting effecting transferability of property should be registered at the LR;
4. Requisition Orders - the Commission believes that this record, kept at the Housing or Lands Dept. should be kept at the PR with a view to computerising the system;
5. All indices re PA, Money Laundering, Drugs Ordinance, Sales by Licitation should contain the same details required for enrolment at the PR and/or LR as the case may be;

1. The duty to specify the marital status of a woman party to a deed, which requirement does not apply to the male is discriminatory. On the other hand, the status is essential to determine whether the property is co-owned or paraphernal. Following discussion it was agreed that the party to a deed must make a declaration as to whether the property is paraphernal or not. Although s/he must be advised by the Notary publishing the deed, the ultimate responsibility is that of the person himself;

1. Paternity as well as marital status should be eliminated. This is only possible if ID numbers are introduced. As to the problem of persons residing abroad or foreigners buying property, in today's fiscal framework, the buyer/seller has dealings with either the AIP section or the Income Tax Dept. The option is to either use those departments' identification codes or apply an "initials code" - eg. Anthony Borg would result in "Antbor". It is true that exceptionally one might have persons with the same initials. However since the non-availability of IDs is limited to foreigners, at worst, one would have to verify a couple of numbers each time he comes across an "Antbor" residing abroad. The same applies as far as permutations are concerned. If a foreigner named Tony Borg comes along, the list of foreigners or foreign residents would not be that long. Exceptions need to be seen to but should not be a cause for delay in providing an effective system;
2. The facility for registering a caution on the basis of promise of sale should be extended to include property outside registration areas.

1. Powers of attorney are to be registered at the PR. Following discussion, the proposals agreed to were:
   1. General powers of attorney, unless limited in such a way as not to imply power to transfer or hypothecate property are to be enrolled with a public deed. Any revocation is to be enrolled at the PR;
   2. Special powers of attorney giving a mandate affecting property are to be enrolled and revoked as above;
   3. Other powers of attorney, whether general or special which in some way are limited to a particular service (banking or social services etc) should be enrolled with the institution or department concerned. Originals should be kept by that office. Revocation is to be notified in like manner;
   4. All powers of attorney emanating from abroad are to be enrolled as in para.(a)

1. The institute of General Hypothec needs to be looked into. The Commission proposes that a GH given as guarantee for peaceful possession should result ex lege without the need for registration. This will save time and money. Loss of revenue on the part of the PR can be offset by new services mentioned in this report. Simultaneously, whereas today a GH may be reduced by enrolling a note of reference and concurrently a Special Hypothec is registered, the Commission proposes that the SH relating to such reduction should, by itself, rank from the date of the GH.

2. Comprehensive Data bank

Dr. Godwin Grima, on behalf of the Commission met a number of MITTS LTD. Divisional Managers. The Ministry of Justice and Local Councils 1998 projects were discussed. This meeting afforded the opportunity to make more people aware of this Ministry's direction and the need to address matters affecting property transactions from a corporate perspective.

Proposals -

(i) Creating two data bases with possible inter-facing:

1. a GIS based data base. MITTS Ltd. has been involved in such an issue. It is essential that the LR be responsible for maintaining the "ownership" data bank. Other agencies/departments will remain responsible for their own information. It is at this point immaterial where the main-frame server is set up;
2. a person-based data bank. Here again, while the maintenance of systems should be the responsibility of data-owner, prohibitions affecting transferability of ownership based on the person, would be the responsibility of the PR.

Linkages with other organisations such as the Law Courts, the PA, Lands, Social Housing, as well as architects', lawyers' and notaries' offices are essential. Some organisations could be both suppliers and users; others will just be users.

1. A Ministerial IT Steering Committee for data management -meetings to be held by exception - is of vital importance at this stage.

1. Elimination of double registration. This has been on the cards for quite some time. As the issue is tackled by the Land Registry Rules Committee, that Committee's report is endorsed by the Commission.

3. Elimination of Duplication

The Commission was informed that one of the aims of the Land Registry Rules Committee was the elimination of double registration - that is registration of the same deed at both the PR and the LR. Since -

1. the Commission's terms of reference included that of examining ways and means of eliminating duplication of work,
2. three Commission members are also members of the Rules Committee; and
3. concrete proposals have been made within those rules, proposals which include the registration of the GH when property is registerable solely at the LR;

the Commission endorses those rules.

Proposals

1. As soon as possible, those rules which do not impinge on the smooth running of both departments be brought into immediate effect (S.35 (2) with its counterpart S. 36 (f) which two provisions -judicial acts of prescription as cautions- are dealt with in more detail under Part One of this report;

1. at a later stage, not later than October 1998 but as soon as practicable, those provisions which require plans to be annexed to public deeds should be put into practice; (S.11.3 requiring site plans and large scale plans to be attached to all notarial deeds and S12.3, its counterpart - registration of property adjudication.

1. not later than January 1999, in line with the administrative proposals suggested herein, the elimination of dual registration is to be strictly enforced. (S.11.1 and 11.2 of Cap. 296 including the amendment to Subsection (7) of section 50 of the Notarial Profession and Notarial Archives Act - S. 12 of Act VI of 1996.).

1. In like manner, the Land Registrar should favourably consider making use of his discretion (S.14.2 and 17) to register all properties within the same deed even though the obligation to register refers only to one or some of the properties.

4. Guaranteed list of numbers - Public Registry

Commission members concur that this is the single most vital issue in the whole matter. They therefore welcomed the decision to set a technical team to report on the Computerised Indexing of Public Registry Indices (TAT). On the other hand, if this team does not anticipate that the official list of numbers can be made available this year, ways and means are to be found to have a manual official list by the end of 1998.

The Commission is conscious that the system presently obtaining has been in place since time immemorial. It also recognises the constraints faced by the management of the Public Registry. However, of all possible options, IT remains the most plausible solution.

Since a technical team was set up to report on this specific matter, Commission members agreed that the TAT report be endorsed as part of this Commission's findings.

5. Civil Status

The Commission likewise endorses the Director of PR's report on the Improvement and Consolidation of Civil Status.

• Everyone acknowledges the excellent work done in this regard to such an extent that the system has become the primary source of information of the Common Data Base (CDB). There is the intention to improve the system further;
• Given the above, and given what is stated further down, it is proposed that ID numbers should be made obligatory for Notes of Enrolment and Hypothecation. However, prior to enrolment or hypothecation, the person/s interested must verify the correct number with the Civil Status. Indeed, the Notary must be made to verify the correct number before publishing the deed. This would be healthy for both the PR and the LR;
• The very valid computerisation of Certificates (Births have been converted to Digitised Imaging Form while Deaths and Marriages are in the process of being converted) is but a part of a larger process, that involving the Civil Registration Department. Today, this department is manned by civilian officers and therefore there is no reason why this responsibility should not be re-transferred to the PR. Indeed there is not even any logistical (physical) problem.

Proposal

1. No legislation is needed to re-absorb civil registration. S.236 of the Civil Code (Cap. 16) states - "Acts of Births and Deaths shall be drawn up by the officers appointed by the President of Malta in that behalf".

6. Administrative matters

The Commission endorses the Chairman's report as well as comments made by the Minister of Justice and Local Councils in the Rapport tas-Sena ta' Óidma. The following are the report's main points:

• Accounts, Salaries and Personnel may be moved into the LR offices as soon as the premises extension is completed and the two entities should be grouped under one Vote of Account with two Cost Centres in 1999;
• While retaining their respective identity, an enlarged department should be set up. One suggestion is that it be named "Office of the Registrar General". Special care should be taken to make the best use of available resources given the departments' track record;
• The PR's Legal Section's duties should be looked into with a view to assessing whether any of them can assist in the legal work of the LR with a view to redefining duties accordingly within the new organisational structure;
• IT support services should be amalgamated within a short time.

Proposals -

Management Efficiency Unit (MEU) is to be asked to draw up a report in the manner in which the whole exercise could be carried out with particular reference to:

1. the proper deployment of the personnel that are attached to the professional units of the PR;

1. the need for more resources where strictly necessary - not necessarily through external recruitment -, especially where system enhancements and/or provision of new services is proposed (eg. Computerisation Deaths and Marriages in the PR and the Cautions issue in the LR); and

1. on-going initiatives in re-deployment and/or re-organisation of HR with a view to maintaining and indeed improving on the present level of efficiency.

The Chairman also informed the Commission that he has taken steps to inform Dr. Mary Debono Borg, Director PR/Not. To Govt. Gozo, that the Ministry's declared policy to amalgamate the PR and the LR applies also to Gozo. Gozo Secretariat officials have also been kept informed, thus ensuring that, even though the Commission's report was not finalised, Gozo officials would have an inkling of what was being prepared.

1. Conclusion/Other Recommendations

7.1 The members of the Commission, while thanking the Minister of Justice and Local Councils for appointing them, and whilst suggesting the following time-scales, as well as the time-frames mentioned above, also express the need that one must judiciously balance the very urgent need of consolidating the rule of law as it applies to the property market, with the real constraints of HR and to a lesser extent, the problem of financing projects. In this regard, one should emphasise that cost-effectiveness in this issue is not necessarily a mathematical exercise. Even though "fee orders (should)…produce, as far as practicable an amount sufficient to discharge the salaries and other expenses" of the service being provided (quote taken from S. 60, Cap.296):

1. guaranteeing an aura of certainty;
2. guaranteeing that Government property is not hijacked through lack of proper documentation and registration; and
3. in the long run, limiting property litigation;

are economic returns which though not easily quantifiable are of great significance.

7.2 the need for motivated and trained staff cannot be underlined enough. Care should be taken to make the best use of available (and tried) resources. What the Commission is suggesting is bound to increase, in the short term, the pressure of work on the present workforce.

7.3 The Commission strongly suggests that a monitoring team be set up to oversee the implementation of this report. The Commission further suggests that representatives from the banking sector and from the notarial profession be included in this team.