3.4 Principles of Cadastre 2014
3.4.1 Identical Procedures for Private and Public Land Objects
The procedure of the definition is similar for land objects created under private and public law. The right of private property is defined by a contract, normally between two land owners. After the agreement between land owners about a transfer of rights, a deed or a title are created. The transaction of rights becomes legally effective by the registration of either deeds or titles in an official land register (Figure 3.14).
Figure 3.14
The determination of public rights and restrictions follow well-defined procedures prescribed by public law (Figure 3.15).
Figure 3.15
Once the adjudication process is completed, the right normally becomes valid. In contrast to land property rights, public law rights and restrictions in most jurisdictions need not be registered to become legally effective.
Cadastre 2014 expects that every right adjudicated to a legal land object will be registered officially.
3.4.2 No Change in Land Tenure
Land tenure is not changed by Cadastre 2014, but it is part of it. If a legal land object is the property of an individual or juridical person, it is a form of individual land tenure. If the property right belongs to a traditional tribe or clan, it is a customary tenure; if it is given to a co-operative it may be called a co-operative tenure; and if the property right belongs to the state, we can call it a communist tenure.
3.4.3 Title Registration
Henssen [1995] uses the representation as in Figure 3.16 to describe the relation between the parcel and its owner.
Figure 3.16
This definition may be called the deed approach. A rightful claimant has in hand a document proving his/her right as the owner of a piece of land by describing the transfer of the rights referring to him/her. This document, the deed, becomes legally effective, when it is booked or registered in the official land register in relation to the rightful claimant. The deed system is man-related.
Cadastre 2014 puts the legal land object into the center and adjudicates the right to the land object (Figure 3.17).
Figure 3.17
This definition corresponds to a title approach. In the title system, it is not the deed that is registered. The right referring to the parcel, the title, is registered together with the indications about the rightful claimant in relation to the land objects. The title system is land related.
The process of adjudication of rights to legal land objects in the case of public law corresponds to the creation of a title in the name of the society as claimant. It is much easier, therefore, to register the public law title than to create a deed. Deed registration must not be considered as a possible alternative.
For traditional land rights, a title is normally created as a result of a political decision.
Cadastre 2014 dealing with legal land objects under traditional, private, and public law knows only the title registration approach to land rights. The legal land object, with the rightful claimant and the parameters of the right referring to it, is registered.
3.4.4 Respect for the Four Principles for Land Registration
The four principles for land registration mentioned by Henssen [1995], the booking principle, the consent principle, the principle of publicity, and the principle of specialty, are condition sine qua non for Cadastre 2014. In all democratic countries, the adjudication process for public law disposition follow these principles.
Cadastre 2014 as a public inventory of all legal land objects can help to support these important principles in the domains of private and public law.
3.4.5 Respect of the Principle of Legal Independence
The principle of legal independence is a key item in the realization of Cadastre 2014. The principle stipulates that:
- legal land objects, being subject to the same law and underlying a unique adjudication procedure, have to be arranged in one individual data layer; and
- for every adjudicative process defined by a certain law, a special data layer for the legal land objects underlying this process has to be created.
Cadastre 2014 is therefore based on a data model, organized according to the legislation for the different legal land objects in a particular country or district. The structure of an information system based on legal independence is as in Figure 3.18.
Figure 3.18
The Cadastre 2014 system is documenting all of these different categories of legal land objects, adjudicated to different rightful claimants, independently but in a common reference system.
3.4.6 Fixed Boundary System
Cadastre 2014 is based on the fixed boundary system. This means that boundaries are located by co-ordinates that are surveyed and not by a description of boundary features. Accuracy of the determination of the fixed boundaries is defined on the one hand by the needs of the users of the boundaries and on the other hand by the possible accuracy of the definition of an object boundary. Property boundaries must generally be determined to a higher accuracy standard than, e.g., valuation boundaries, because boundaries between different values cannot be determined exactly.
3.4.7 Location of Land Objects in a Common Reference System
To make sure that legally independent organized land objects can be combined, compared, and brought into relation to each other, Cadastre 2014 expects that they will be localized in a common reference system. The combination and comparison of the thus located land objects can be realized by the method of polygon overlaying. This method was published in Kaufmann and Bigler [1973] in the context of value calculation of properties using the principle of thematic independence.