Land Registration Systems & Discourses of Property

In: European Review of Private Law, Band 29, Heft 6, S. 835-852

Abstract

This article discusses the relations between land registration systems and underlying discourses of property from a comparative perspective. It is based on the example of French law which, characteristically, uses a declaratory land recordation system, i.e., registration is informative in nature, it affects the rules of evidence but it does not convey property nor does it affect complete strangers in any way. It is found that such a system implies that people will need to prove their ownership of land, and therefore presupposes rules of evidence which are based on possession or title to possess, since land registration is not used for that purpose. The historical reason for this choice was inherited from the French Revolution. It rests on the idea that property is held from no one, least of all from the State. Most countries in the world have opted for a land registration system which is constitutive of title, meaning that the State guarantees the registered owner's title to land. This system was originally inherited from the remnants of the feudal system in which land was held through a tenure, i.e., from someone else. This conception of ownership also traditionally implies a greater tolerance – in legal discourse – for legislative or State interference in the ownership of land which is merely granted by public authority. It may therefore be said that the more efficient the title, the less absolute ownership seems to be, at least in the collective imagination of lawyers as to what property entails.