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Business Review 2006 from
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Fall of the last bastion
Tim Hart,
Bailhache Labesse
HERE in Jersey we are surrounded by evidence of the historical primacy of the French language.
Our road and place names are the most obvious examples. In fact, spelling out local names on the phone to bemused callers from the UK is a familiar occurrence. But these are, in truth, a mere vestige of a world that disappeared a long time ago.
For many decades the real language has, of course, been English. It has been spoken by all but a tiny handful of Islanders, in all spheres, from everyday conversation to commercial, political and cultural discourse.
Even in the conservative world of the law, English has been dominant in legislation and the workings of the courts for at least half a century.
However, remarkably and against the odds, the language of French still prevails in conveyancing - AstÈrix continues to resist the mighty Roman Empire! Yet, this last bastion is about to fall.
Changes to the Royal Court Rules are in prospect which will make English the compulsory language of conveyances of Jersey immovable property. The current proposal of the Jersey Legal Information Board - JLIB - which will require the sanction of the Royal Court, is for the use of English to become compulsory with effect from 1 June 2006.
Anglophone
This move is a very welcome one. Notwithstanding Jersey's historic links with Normandy and its French-speaking past, its population is now anglophone and for important documents to be written in a language other than the mother tongue of those who draft them, and those for whose benefit they are prepared, is hard to defend. Part of the JLIB's stated strategy is 'to make the law and legal processes more accessible to the public' and the move to English clearly fits with this laudable objective.
Of course, legal documents will always require the assistance of a trained lawyer for their full understanding - much as a sick person cannot simply be given a medical textbook and told to get on with it - but it is right that all unnecessary obfuscation be removed. Having legal documents in a foreign language - and a particularly idiosyncratic version of it at that - serves only to feed suspicions of information being kept from the masses by a select few.
It is important, however, that this reform, welcome as it is, should not mark the end of the road in relation to reform of the Jersey conveyancing system.
What is required, in the view of the writer, is the formulation in early course of a scheme to move from the current deeds based system of land registration to a title based system.
What does this mean? The answer is that under the present system - dating back to the creation of the Public Registry in 1602 - conveyances must for their validity be 'passed' before the Royal Court and thereupon registered in the Public Registry.
Such registration does not, however, carry any official guarantee of good title. A person acquiring property must rely for this upon the professional opinion of his or her lawyer, who in order to certify this to the client - and the client's lender - must have carried out a full title check, researching previous disposals of the property for at least 40 years beforehand.
Moreover, because there is no official certification of title, properties such as the average family house, which tend to change hands frequently, will need to be the subject of a fresh title check each time they come to be sold. The result is a system which is necessarily cumbersome, slow and costly.
In a title based land registration system, on the other hand, the ownership and other details entered on the official register are conclusive.
It is therefore possible to ascertain from a single document the name of the owner or owners of the property in question and, depending on the nature of the system, matters such as registered charges and other third-party rights and interests affecting the property.
Assistance
Of course, the adoption of such a system would require solutions to be found to a number of legal, technical and practical issues.
Nor could one move to such a system overnight given that registration would be a process, involving the registration of a particular property upon the occurrence of a stipulated trigger event, such as sale, mortgaging and so on, rather than a once-off event.
But in adopting such a new system Jersey would be far from alone in the world. Many jurisdictions, from developing and post-dictatorship countries to highly developed democracies, are revising their land registration systems to adopt title registration systems. In doing so, many of them, with their various existing arrangements, are receiving advice and assistance from the International Unit of HM Land Registry.
Conveyancing would still, following such a reform, give rise to its fair share of legal issues to be grappled with. But title registration should ultimately result in a quicker, more user-friendly and less costly process, with legal certainty at its heart, to the benefit of all those investing either directly or indirectly in Jersey property.
As HM Land Registry puts it, 'Guaranteed land registration forms the cornerstone of a stable economy, providing everyone with the confidence they need when dealing with property.'
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