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Determination of land ownership rights


THE Department of Lands and Surveys must avoid the registration of immovable property from the name of a deceased to a person claiming ownership of same, except if a duly notarised written consent of the heirs is filed with the department. The determination of land ownership rights is within the jurisdiction of the court and not within the powers of the Director of the Department of Lands and Surveys. Such actions end up in court, especially when one relative, without providing the duly notarised written consents of the heirs alleges that a piece of land was given to him/her gratuitously by the deceased, or that he/she has ownership rights over the land through hostile possession or through succession.

 

Information contained in certificates issued by Community Councils or Mukhtars regarding ownership of land by deceased persons or its possession, for the purpose of being presented before the Department of Lands and Surveys, has to be personally known to the Mukhtar or the person authorised by the Community Council to issue the certificate. If the information contained in the certificate are not personally known to him but instead they are based on information and statements obtained by third parties, the Mukhtar has to mention this in the said certificate naming the persons who provided him with the relevant information.

The aforesaid was raised by the President of Larnaca court in a recent judgment after heirs demanded the annulment of a transfer of land in the name of other heirs of a deceased person through fraud, misrepresentation or illegal and irregular procedures. The facts of the case regarded the actions of an heir who secured the consent of his siblings to register the estate of their deceased parents in his name and then to transfer to each one of them his/her share in the estate. When the heir passed away, his wife made use of certificates issued by a Community Council and registered the land firstly in her name in her capacity as the heir of her deceased husband and then to their children. The remaining heirs brought an action before the court and requested the annulment of the said transfers. The court decided in favour of the heirs, holding that the notarisation of the signatures of the affected persons in the said consents was void since they didn’t sign the consents in the presence of the mukhtar.

As to the officer of the Land Registry, he was held to have acted act ultra vires or in violation of the law or incorrectly under the circumstances and his actions should be annulled, since he allowed the use of a power of attorney with which no power was given to her appointed representative (the dead man) to register in his name property belonging to his sister. Regarding the transfers of land in the name of his children, the court found severe failures on behalf of the Director of the Lands and Surveys since the procedure which was followed and his decision to register the land in the name of his wife, essentially determined the ownership of the land, determining at the same time the ownership rights over it.

The Director neither had the right to proceed with the registration of the land in the name of the deceased heir’s wife by means of inheritance and succession nor could he allow the previous transfers of land in the name of the deceased. Nevertheless, without checking the material irregularities and illegalities, he proceeded with the determination of ownership rights over the land.

Simultaneously, the court dismissed the allegation of the children of the deceased heir that they acquired rights over the land through hostile possession, since it contradicted their allegation that the ownership of the land was acquired with the consent of the other heirs. Hence, the court ordered the registration of the land in the name of the deceased parents.

Courtesy of:

 George Coucounis is a lawyer specialising in the Immovable Property Law, based in Larnaca, Tel: 24 818288,  This email address is being protected from spambots. You need JavaScript enabled to view it. www.coucounislaw.com

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