The registration of inter vivos deeds : assessing the new online process

Abstract

The technological landscape often changes very rapidly. Many technologies that were considered the most popular among people a few years back might be facing extinction today. This does not happen due to natural or human influenced disasters but rather because of the advancements and innovations of the cutting-edge parallel and alternative technologies. In some sense, one technology eliminates another. Similarly, change also occurs in the way tasks are executed, with parallel and alternative ways continuously being created for efficiency’s sake. This is particularly evident in the professional world, particularly in a notarial context. Generally, the existence of a transaction or an agreement may be proved orally in a dispute before a court, however when it comes to certain transactions the law requires that proof thereof must be made in writing; either as a public deed or else as a private writing. A public deed having effect inter partes is to enter the public domain so to protect third parties, and this is done through its registration. In fact, section 996 of the Civil Code3 states: “Nevertheless, with regard to third parties any contract conveying the ownership of immovable property, or any right over such property, shall, in no case, commence to be operative until it has been registered in the Office of the Public Registry, as provided in article 330.” Notarial deeds are registered in Malta either in the Public Registry or in the Land Registry. Registration in the Public Registry, which follows a personal system, is to be made by a note of enrollment, although essentially most transactions can be enrolled, the law in section 50(1) of Chapter 55 of the Laws of Malta , provides an exhaustive list of transactions for which the notary is duty bound to deliver a note of enrollment to the Director of the Public Registry. This note would contain: • The designation of the parties as specified in the deed • The date and nature of the deed • An indication of the thing to which the deed refers • It shall also be signed by the notary before whom the deed was executed. Moreover, registration may also be required or effected in line with the provisions of the Land Registration Act. The Land Registry is a “real system” since it refers to the “res” as opposed to the personal system used in the Public Registry. The main ‘raison d’être’ behind the registration of land is to provide certainty to owners of the property as regards title, to clearly identify the property and to give greater legal certainty to creditors. In fact in the Land Registry one would register: • Notes of transfers of immovable property or first registration; • Charges; • Cancellations or waivers of the respective charges; In his thesis, Sam Abela way back in 2007 with regards to registration of deeds, while observing that at the time every post deed formality was done manually by attending personally at possibly three different departmental offices namely: the office of Inland Revenue, Public Registry and Land Registry with forms printed on one’s own computer system, the author suggested that upon publication of a deed, the Notary would engage the computerized process to register the deed which would effectively make registration of Inter Vivos deeds more efficient. Although since then improvements have been made there is still a long way to go. In this Report the author intends to outline the extent to which technology is being used today when it comes to the registration of Inter vivos deeds while also comparing it other jurisdiction, so to be able to provide suggestions as to how the system can be improved.