Public Defender's Statement on Draft Amendments to Law on Public Registry
The Public Defender negatively assesses the draft amendmentsto the Law on Public Registry and demands more transparency in the process of registration of state-owned land.
According to the LEPL National Agency of State Property, in the last period the process of inventarisation of real estate and its registration as a state property has been intensified in the country. According to the Public Defender, under the circumstances when a number of issues related to registration of land/real estate are still unsolved, the launch of similar projects by the state without informing the public about it or holding discussions on the issue, jeopardizes the property rights of the persons with real estate ownership rights or documents proving lawful possession.
The cases studied by the Public Defender's Office show that after registration of real estate as state property, the National Agency of Public Registry refuses private persons to register property rights, even if they present relevant documentation. Furthermore, in contrast to the statement made by the National Agency of State Property, at this stage there is not a perfect mechanism for identification of real estate under legal ownership of private persons. This may lead to the fact that property registered as state property might, at the same time, be under legal possession of a private person.
The new amendments to the law on Public Registry were submitted to the Parliament on December 16, 2015. The bill was initiated by the Government of Georgia and the author of the document is the Ministry of Justice. According to the bill, real estate, which is not under anyone’s legal ownership according to the data of the Public Registry, will be registered under state property upon a request submitted to the National Agency of State Property. The Agency is also authorized to demand prohibition of the right to manage property or transfer it to someone else’s ownership for one year (longer prohibition may be used if the Agency expresses such a will). Despite the ban, the National Agency of Public Registry is authorized to wholly or partially abolish the state property rights on the basis of submission of an application and registration document by an interested person. The explanatory note to the bill says that the amendments will stimulate completion of the process of primary registration of lands.
The Public Defender believes that the process of primary registration of real estate ownership rights is not yet completed in our country. The persons, who have documents on legal ownership of real property, have not yet registered the property rights in the Public Registry. The key reason for this, along with the mentioned faults in issuing such documents (the precise location or area of the land is not indicated, etc.), is also a heavy social situation and the lack of funds needed for registration (registration fees, land drawing cost). It should be noted that the legislation of Georgia does not provide for any assistance of socially vulnerable persons, which can be negatively assessed. Each step and efforts of the state should be focused on solution of these real problems, instead of creating new obstacles.
At the same time, we want to focus on the specific risks and threats contained in the bill; in particular:
1. Documents proving ownership or lawful possession of property (community books, tax lists, gardener books, etc.) are not always kept in the National Agency of State Property and even if they are kept, no timely identification is ensured, which represents a serious problem. Moreover, the bill does not show which data, protected in the Public Registry, will be verified when a request on registration of land is submitted to the National Agency of State Property, since except for the electronic data, systematization of other documents (the so-called paper versions) is not completed in the National Agency of Public Registry.
2. Even in case of existence of documents proving the legal ownership, there still are risks that the property right will not be registered in the Public Registry because of the used measure of prohibition.
3. The possibility of appealing to the National Agency of Public Registry by an interested individual and the full or partial abolition of state ownership is not steady or guaranteed, as its realization depends on the discretion of the National Agency of Public Registry;
4. Prohibition of the right to manage state property or transfer it to someone else’s ownership by the National Agency of Public Registry also depends on the discretion of the Agency and no certain criteria or preconditions are mentioned in the bill.
The bill leads to a risk that something considered as property of self-government by the Organic Law on Local Self-government Code may be registered as a state property.
Accordingly, the Public Defender considers that the bill does not serve to solve the problems related to the primary registration of real estate, but on the contrary, it will seriously damage the realization of property rights in Georgia. Based on the above, the Public Defender considers that the bill, initiated by the Government of Georgia, should not be supported by the Parliament.
In addition, given a number of legitimate questions with regard to the bill, the launch of real estate registration process by the state might be more dangerous in terms of realization of property rights.
The Public Defender of Georgia expresses interest towards this process. After studying all available information, the results of the study will be provided both to the state agencies and the public.