Opposition to the Passing of Transports
By Dr Kim-Kyte Thomas
During part two of this series, we noted that pursuant to the Deeds Registry Rule 8, any person having a right to oppose the passing of a transport, mortgage, or lease shall do so in the manner and conditions now as prescribed by the rules of court.
The opposition, therefore, is a mechanism that seeks to stop or prevent the passing of transport to a new owner. Other mechanisms that can similarly prevent transport passing include prohibition, injunction, and a levy.
We will now consider who has the right to oppose, the effect of the opposition, and the procedure which must be followed in accordance with the rules of the court.
Who can Oppose the passing of Transport?
In Administrator General Rep. Estate of DaSilva, an insolvent, v. Willems (1892 L.R.B.G. 128 the court stated that “the facility to oppose is founded in a right to or in the property or nexus to it” and an “opposition would lie in respect of a liquid claim or liquidated demand.”
An examination of the cases would show that only those persons who have a right to, or in, the property or persons who have a liquidated debt can oppose a Transport. The remedy cannot be utilised by persons having a mere claim or personal action against the debtor.
Justice Dalton, in the case of AUSTIN v. AUSTIN (1921), stated that the right to oppose is confined to:
- persons having dominium in the res itself or some legal or equitable right therein,
- creditors having a liquidated demand or a claim of such a nature that it can properly be made the subject matter of a specially indorsed writ.
- simple contract creditors not secured by a mortgage on immovable property.
- where the creditor would be remediless, and if a judgment were obtained otherwise, there would be no chance of recovering the amount.
Procedure
The Rules of the High Court (Deeds Registry) stipulate the procedure and time limit for filing a Notice of Opposition.
The Opposer must file with the Registry a Notice of Opposition.
Notably, a Notice of Opposition may be filed after an advertisement of the conveyance of a property in the Official Gazette.
The Notice of Opposition must clearly state the reasons or grounds for the opposition whereby the opposer would contend that they have an interest in the land, either by way of transport, agreement of sale, or through undisturbed possession of the land in excess of twelve (12) years; or they may claim that the person initiating the passing of the conveyance owes them a debt or other liquidated or quantifiable sum of money.
The Notice must be filed on or before 3 pm of the thirteenth day after the advertisement in the Official Gazette of the transport, mortgage, or lease.
The Registrar is thus barred from proceeding with certification of the conveyance and is obligated to annotate the Notice of Opposition against the conveyance and the Transport within the records of the Registry.
The Opposer is mandated to serve a copy of the Notice upon the person who requested the conveyance to be advertised within three (3) days after the filing in the Registry of the notice of opposition.
The Opposer has ten (10) days within which to bring an action in the High Court to restrain the conveyance from proceeding.
If the Court finds in favour of the Opponent that the claim has been established, the Court will so order.
It should be noted that the Opposer cannot just file the opposition and do nothing else. He must, within ten days, file an action to restrain the conveyance from proceeding. Thus, the Notice of the Opposition is just a temporary restraint to the passing of the transport and must be supported with the filing of an action.
After examining the evidence before the court, the judge will then determine whether the Opposition is justified and so order.
Opposition Based on a Money Claim
A creditor has the right to oppose the passing of a transport where the due date for the payment of the debt or liquidated sum has not yet arrived and where he has evidence that the debtor is in such a position that he, the creditor, would be remediless or incapable of recovering the debt if the debtor transfers the property.
This is so because the creditor would be barred from levying on the said property to reclaim the sum owed. The creditor can, therefore, file an opposition to protect his rights and claim the sums owed to him.
Edgar Mortimer Duke, in his treatise ‘The Law of Immovable Property in British Guiana’ p 8 had this to say:
“The law as to opposition by creditors plays a very important part in the social and economic life of British Guiana. So long as a person owns immovable property, he can get credit, but if he attempts to sell, his creditors can enter opposition and the transport will not be passed until all the oppositions are removed. We have no provision for registered judgments, and there is no necessity for such a procedure. Creditors are fully protected so far as the immovable property of their debtors is concerned.”
Hence the importance of an advertisement in the Gazette. As stated by George C in Ramsamugh v Hand in Hand Mutual Life Insurance and Others (1992) 47 WIR 198 at p 208:
“This is the object of advertisement. Generally speaking, it is intended to warn and notify unsecured creditors that the mortgagor is about to encumber a specific property which would otherwise have been available to them in execution in the event that anyone felt compelled to institute proceedings to recover his debt.”
Once an opposition is filed, the Registrar of Deeds would make a record that an opposition was entered. This would then restrain the debtor from passing the transport until the payment of the debt is effected.
However, where the opposition is based on a debt/money claim owed by the person seeking to convey the transport, he/she can lodge with the Registry the amount of the alleged indebtedness and such additional amount as the Registrar may deem sufficient to cover the costs of any action. Once these sums of money are lodged, the Registrar can proceed with the conveyance as if no Opposition had been entered.
The rules provide that if the Court finds in favour of the Opposer, the Registrar shall pay to the Opposer from the amount lodged the amount stated and costs as ordered by the Court.
Similarly, in accordance with Rule 9(3), if the Court finds in favour of the person seeking to convey the transport, the Registrar shall, upon application by the person, refund to him the whole amount lodged.
Prohibition by Purchasers- New Remedy- Act No. 5 of 2014
Another mechanism which can curtail the conveyance of transported property is the prohibition that a purchaser can lodge. In Guyana, equitable interest in land is not recognised. The only type of ownership in land is stated in Section 3(d) (i) of the Civil Laws of Guyana Act as follows:
- “Immovable shall be held in full ownership, which shall be the only ownership of immovable property recognised by the common law and shall not be subject to any rule of succession…, or to any other incident attached to land tenure or to estates in lands in England…”
Further, section 22, Deeds Registry Act: “Every transport of immovable property other than judicial sale transport shall vest in the transferee the full and absolute title to the immovable property or to the rights and interest therein described.
Thus prior to 2014, a purchaser of property could be in a precarious position when dealing with a fraudulent vendor who could re-sell the property since the purchaser did not acquire any type of ownership recognised by the laws of Guyana.
This unfortunate state of the law was exploited by many fraudsters and resulted in litigation over-crowding an already burdened court system. However, unless the hapless purchaser could prove that the new purchaser was aware of the fraud, the sale to the new purchaser could not be set aside by the Court.
It was this mischief that Act No. 5 of 2014 sought to remedy. Thus, as a result of the amendment to the Deeds Registry Act, an agreement of sale can now be registered against the land. The agreement of sale can be annotated on the face of a transport so that any person who wishes to subsequently deal with that property can examine the transport at the Deeds Registry to see what encumbrance or encumbrances or what registered interests may have been annotated on the face of the transport. This procedure now gives the person notice there is a prior agreement of sale.
Thus, Section 22A (1) provides in summary that a purchaser, his assignee, or successor claiming to be entitled to the conveyance of the immovable property must lodge with the Registrar:
(a) prohibition in Form 3 in the Third Schedule verified by a
Statutory declaration; and
(b) a copy of the written agreement of sale.
The Prohibition must include an address for service in Guyana. See (Section 22A (3)).
Injunction and Levy Proceedings
The High Court can grant an Injunction in accordance with the Civil Procedure Rules to prevent the passing of a transport.
Levy Proceedings are available to a judgment creditor against the debtor’s property to sell the same to recover the debt.
Levy Proceeding can be instituted in the High Court by the Judgment Creditor against the debtor, and the Court can make an order to levy against the property, ordering a sale at auction or private treaty.
The Order is filed with the Deeds Registry, and annotations are made against the transport of the property being levied. No conveyance or mortgage can proceed unless the levy is removed.
These mechanisms can impact and impede the passing of transport and, as such, should be utilised by persons who qualify to utilise these remedies. Therefore, a word to the wise is to read the weekly Gazette, which is now online, and to be a prudent purchaser by making all necessary checks at the Deeds registry or Land Registry before entering into agreements to purchase land.
