Understanding the Complexities of Ownership of Property in Guyana
The Reception of Law has influenced the legal system and laws that were developed and practiced in Guyana. Like many other postcolonial systems, the Guyanese legal system is inherited from the colonial past. Lord Stowell described the doctrine of inherited colonial laws in Rudling v Switch (1821) 2 Hag Con 371, p 380 as follows:
“When the King of England conquers a country … the conqueror, by saving the lives of the people conquered, gains a right and property in such people, in consequence of which he may impose on them what law he pleases.”
Thus, Guyana’s legal system bears similarities to many Commonwealth countries in the region and follows the English Common Law tradition. However, Guyana also retained vestiges of the Roman-Dutch legal system, especially in land tenure.
In 1803, the colony of British Guiana was ceded by the Dutch to the British. During the occupation of the Dutch, the common law was Roman-Dutch law.
In Campbell v Hall (1774) 1 Cowper, 204, Lord Chief Justice Mansfield stated that the Roman-Dutch law shall continue to be the law of the colony in the absence of legislation to the contrary.
The Civil Law of Guyana Act 1916, which came into effect on January 1st, 1917, therefore established the legal framework for the practice of land law and tenure.
The Act codified portions of the Roman-Dutch Law of the State. In other matters, the Act substituted the English Common Law and Principles of Equity, along with specific English Statutory Provisions, in favour of the Roman-Dutch Law.
The Statue Law Committee of the then British Guiana aimed to have a system of land law that would ensure absolute ownership of property.
Section 3(d)(i) of the Civil Laws of Guyana Act states that:
“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….”
Section 22, Deeds Registry Act, Cap 5:01, therefore, provides that “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…subject to –
Statutory claims;
Registered encumbrances;
Registered interests registered before the date of the last advertisement of the transport in the Gazette;
Registered leases registered before the date of the last advertisement of the transport in the Gazette.”
Thus, for conveyancing purposes, the Roman-Dutch method of transferring land by ‘transport’, which was practised in Guyana, was adopted by the Act.
Hence land in Guyana can be absolutely owned by a person, and this is now enshrined pursuant to Article 19 of the Constitution of the Cooperative Republic of Guyana, which provides that every citizen has the right to own personal property.
Article 142 of the Constitution further reinforces the right to ownership, which protects a citizen from deprivation of property except by way of written law requiring the prompt payment of adequate compensation.
The Transport System
Having established that immovable property can be absolutely owned in Guyana, you will now want to know what supports the methods of conveying property in Guyana.
The answer is first found in Section 12, Deeds Registry Act. The section states as follows:
“(1)No person to whom title to any immovable property situated in Guyana vests may transfer or mortgage that property except by passing and executing a transport or mortgage thereof before the Court …
(3) All transports and mortgages passed after the commencement of the act shall be registered by the Registrar and filed as of record in the registry.”
Hence all transports must be passed and executed before a court, commonly referred to as the transport court. To successfully effect the transfer of title, all conveyance documents must be filed by Attorneys-at-Law at the Deeds Registry. Once they comply with the Deeds Registry Act and rules, then the conveyance is published once in the Gazette on Saturdays to permit anyone who has a right to oppose to enter an opposition to the passing of the conveyance.
According 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 the court.
In the next article, we shall address what constitutes a right to oppose and the nature and effect of an opposition.
Once no opposition is filed and subject to compliance with the rules, the transport can then be passed before the Transport Court.
The Land Registration System
In 1961, the Government of Guyana started implementing a new land registration system. The system was called the Torrens System of registration, which was created and applied with excellent results in Australia. This system was only used to register new adjudications (titles issued by the authorities) created by the British Crown. These types of ownership, created directly by the common law legal tradition, were and are called Land Titles.
The object of the Registration of Title was to simplify, cheapen, and expedite the transfer of land. See Section 4 (1) Land Registry Act 1959 Cap. 5:02.
Pursuant to Section 4 of the Land Registry Act 1959 Cap 5:02, The Land Registry administers Land titling in areas declared as Land registration areas and facilitates all dealings with lands within those areas. A Certificate of Title, as opposed to transport, is issued to the property owner.
State Land
Over the years, Guyana has also adopted several laws governing the ownership and transfer of land, particularly state lands. The President of Guyana may make absolute or provisional grants of any State lands of the country, with such conditions as he/she thinks fit or according to the regulations (See Section 3 of the State Lands Act).
The President can grant permission to the Commissioner of Guyana Lands and Surveys Commissioner to issue leases for agricultural purposes, the Commissioner of Mines to issue permits for exploration, and the Conservator of Forests to issue licences for logging.
Hence, the President can issue leases, permits and grants through the commissions in accordance with the respective Acts. For example, any licence to mine should be granted under the Mining Act (see section 5 of the State Lands Act).
The Guyanese legal system and legal framework concerning land ownership have their origins in English Common law and Roman-Dutch law. Land may therefore be acquired through sale, purchase, gift, vesting (inheritance), prescription, transport, leases, or grant of title, either privately or by virtue of a state grant.
