The impact of econveyancing on title registration a risk assessment

The Impact of eConveyancing on Title Registration A Risk Assessment... While the management of risk has always been a compellingconcern in the conveyancing process, with legal practiti

The Impact of eConveyancing

on Title

Registration

A Risk Assessment

The Impact of

eConveyancing on Title Registration

A Risk Assessment

Ireland

ISBN 978-3-319-10340-2 ISBN 978-3-319-10341-9 (eBook)

DOI 10.1007/978-3-319-10341-9

Springer Cham Heidelberg New York Dordrecht London

Library of Congress Control Number: 2014955461

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394 Lakeshore Oakville Holdings Inc v Misek 2010 CanLII 7238

(ON SC) 254

Abbey National Building Society v Cann [1990] 1 All ER 1085 220

ACC Bank plc v Johnston [2010] IEHC 236 188

ACC Bank plc v Markham [2007] 3 IR 533 170

Bertrand v Trites 2006 CanLII 37959 (ON SC) 300

Blake and Ors v Attorney General [1982] IR 117 at 127; [1981] ILRM 34 269

Boyle v Connaughton [2000] IEHC 28 (21stMarch 2000) 146, 207, 272 Byrnes & Anor v Meakstown Construction Ltd [2009] IEHC 123 145

City of London Building Society v Flegg [1987] 3 All ER 435 245, 247, 251 Coffey v Brunel Construction Co Ltd [1983] IR 36 121, 180 Crumlish v Registrar of Deeds and Titles [1990] 2 IR 471 207

Dreher v Irish Land Commission [1984] ILRM 904 270

Durrani v Augier 2000 CanLII 22410 (ON SC) 219

Frazer v Walker [1967] 1 AC 569 128

Geraghty v Buckley High Court Unreported (6 October 1986) 206, 209 Guckian v Brennan [1981] I.R 478 45

Home Trust Company v Zivic 2006 CanLII 38359 (ON SC) 219

Honiball v McGrath [2000] IEHC 33 247

Household Realty Corporation Ltd v Liu 2005 CanLII 43402 (ON CA) 217

In re Erris Investments Ltd [1991] ILRM 377 207

Isaacs v Royal Bank of Canada 2010 CanLII 3527 (ON SC) 220

James v United Kingdom ECHR 21 February 1986, Series A No 98; 8 EHRR 123 270

Lawrence v Maple Trust Co 2007 CanLII 74 (ON CA) 218

v

Lee-Parker v Izzet [1971] 3 All ER 1099 1

Madigan v Attorney General [1982] IR 117 269

Mellacher v Austria ECHR 19 December 1986, Series A No 169; 12 EHRR 391 270

Moore v Moore [2010] IEHC 462 (12 October 2010) 211

National Provincial Bank Ltd v Ainsworth [1965] 2 All ER 472 247

O’Callaghan v The Commissioners of Public Works in Ireland [1985] ILRM 364 270

Ontario v Syvan Developments Ltd 2006 CanLII 32430 (ONSC) 300

Rabi v Rosu 2006 CanLII 36623 (ON SC) 219

Randvest Inc v 741298 Ontario Ltd 1996 CanLII 8207 (ON SC) 251

Stepstone Mortgage Funding Ltd v Tyrrell [2012] IEHC 139 209

The Right Honourable The Lord Mayor Aldermen and Burgesses of Dublin v Burke [2001] IESC 81 273

The State (Christopher Philpott) v The Registrar of Titles [1986] ILRM 499 208

Toronto-Dominion Bank v Jiang 2003 CanLII 38078 (ON SC) 219

United Trust v Dominion Stores et al 1976 CanLII 33 (SCC) 219

Wallcite Ltd v Ferrishurst Ltd [1999] 1 All ER 977 247

Walsh and Cassidy v Sligo County Council [2010] IEHC 437, [2013] IESC 48, [2014] IESC 22 276

Most especially I would like to thank Graham Ferris and Gary Wilson fortheir excellent guidance and advice Their insight and encouragement has provedinvaluable Special thanks is also due to Professor Michael Cardwell.

I am hugely indebted to Mary Keane and T P Kennedy who supported me in thisendeavour and Professor Adrian Walters for his input I am also grateful to DennisBarnhart, John O’Sullivan, Greg McDermott, James O’Boyle, Kate Murray, KenCrawford, Alexandra Radley, Dr Paddy Prendergast, Agostino Russo, VickiMcArthur and Nuala Casey who found the time to discuss ideas, provide informa-tion and make suggestions for improvement Thank you all for your assistance.Finally, I would like to thank my friends, family and in particular my husbandfor his continuing support and my children for their love and laughter

All opinions expressed are my own

vii

1 Introduction 1

1.1 Context 1

1.2 Focus 3

1.3 Approach 5

1.4 Method 6

1.5 Scholarship 9

1.6 Legislation 9

1.7 Summary 10

References 10

2 Methodology 13

2.1 Introduction 13

2.2 Methodology 13

2.3 Neutral Vocabulary 18

2.3.1 Context 18

2.3.2 Neutral vocabulary 23

Conclusion 47

References 47

3 Defining Econveyancing 51

3.1 What Is Conveyancing? 51

3.2 What Is eConveyancing? 52

3.2.1 What Is Not Included? 56

3.2.2 Phases of eConveyancing 58

3.2.3 Relationship Between eRecords, eApplication, eRegistration and eConveyancing 65

3.2.4 eConveyancing in the Context of eCommerce and eGovernment: Towards an Information Age 68

3.3 The Case for Reform 74

ix

3.4 Development of eConveyancing in Ireland and Ontario 87

3.4.1 eConveyancing in Ireland 87

3.4.2 eConveyancing in Ontario 95

Conclusion 105

References 108

4 Defining Title Registration 115

4.1 What Is Land Registration? 115

4.2 What Is Title Registration? 119

4.3 Why Title Registration? 123

4.4 Dynamic Versus Static Security 126

4.5 Indefeasibility Outside Land Registration 133

4.6 Exceptions to Indefeasibility 134

4.7 Title Registration System in Ontario 136

4.8 Estates and Interests Protected by the Title Register in Ontario 137

4.9 Title Registration System in Ireland 142

4.10 Estates and Interests Protected by the Title Register in Ireland 144

Conclusion 147

References 147

5 Identification of Risks 153

5.1 Modelling 153

5.2 Schematic 156

5.2.1 Transaction for Value 157

5.2.2 Transaction Not for Value i.e a Gift 158

5.2.3 Distinction Between U and V 158

5.3 Standpoints 159

5.3.1 Standpoint of Transferor 160

5.3.2 Standpoint of Transferee 161

5.3.3 Standpoint of Lender 162

5.3.4 Standpoint of Donor 163

5.3.5 Standpoint of Donee 163

5.3.6 Standpoint of Third Party 164

5.3.7 Standpoint of Property Claimant 164

5.4 Risk Matrix 165

5.5 Distinction BetweenBona Fide Purchaser for Value and Volunteer 169

5.6 Categorisation of Rights 171

5.7 Conveyancing as a Process 173

Conclusion 175

References 175

6 Before Registration 177

6.1 Introduction 177

6.2 Registration Gap 177

6.2.1 Risk from T 181

6.2.2 Risk from U 184

6.2.3 Risk from V 186

6.2.4 Removal of the Registration Gap 186

6.2.5 Effect of eConveyancing 187

6.2.6 Impact on Risk 189

6.3 Formalities for Registration 191

6.3.1 Risk in a Paper Environment 192

6.3.2 Changes in Formalities 193

6.3.3 Risk in an eConveyancing Environment 197

Conclusion 198

References 199

7 The Register 201

7.1 Introduction 201

7.2 Risk from Combined Transaction and Registry Errors 204

7.3 Risk from Registry Errors 205

7.4 The Position in Ireland 206

7.4.1 Rectification 208

7.4.2 Compensation 212

7.4.3 How Errors Are Addressed by the Registration System in Ireland 213

7.5 The Position in Ontario 217

7.5.1 Rectification 221

7.5.2 Compensation 222

7.5.3 How Errors Are Addressed by the Registration System in Ontario 224

7.6 Impact on Risk 228

7.7 Claims 230

7.7.1 Claims in Ireland 230

7.7.2 Claims in Ontario 230

Conclusion 238

References 241

8 After Registration 243

8.1 Introduction 243

8.1.1 Interests Off the Register Which Affect Title 244

8.1.2 Destructive Effects of a Registered Transaction 244

8.1.3 Rights Not Recognised 245

8.1.4 Scenarios 246

8.2 Overriding Interests 246

8.2.1 Short Term Tenancy 248

8.2.2 Effect of Overriding Interest 249

8.3 Destructive Effects of a Registered Transaction 250

8.3.1 Trust 250

8.3.2 Effect of Overreaching 253

8.4 Rights Not Recognised 254

8.4.1 Easement 254

8.4.2 Effect of Rights Not Recognised 257

8.5 Effect of eConveyancing 259

8.5.1 Moving Rights on to the Register 260

8.5.2 Interest Recording 262

8.5.3 Reclassification of Interests in land 265

8.5.4 An (In)complete Title Register 271

8.5.5 Certainty Versus Flexibility 278

8.5.6 A StricterNumerus Clausus 280

Conclusion 283

References 285

9 Conclusion 289

9.1 Introduction 289

9.2 Risk Versus Reward 289

9.3 Impact of eConveyancing on Risk 291

9.3.1 Registration Gap 291

9.3.2 Formalities for Registration 292

9.3.3 Error in Register 293

9.3.4 Interests Off the Register Which Affect Title 294

9.3.5 Destructive Effects of a Registered Transaction 294

9.3.6 Rights Not Recognised 295

9.4 Risk to U and V 295

9.5 Interference in the Land Market 296

9.6 Indemnity for Loss 299

9.6.1 Title Insurance Versus State Compensation 299

9.6.2 Imposition of Loss 305

9.6.3 Grounds for Increased Risk to U and V 308

9.7 Recommendations 308

Conclusions 310

References 312

Glossary 315

Fig 3.1 Four phases of an eConveyancing system 66

Fig 3.2 Sequential timeline 66

Fig 3.3 eConveyancing in the context of eCommerce and eGovernment 69

Fig 4.1 Land management and land administration system 118

Fig 5.1 Transaction for value 157

Fig 5.2 Transaction not for value 157

xiii

Table 2.1 Comparison of Ireland and Ontario 15

Table 3.1 Growth of online services Ireland: landdirect.ie portal 90

Table 3.2 Overall rejection rates Ireland 91

Table 3.3 Growth of electronic applications for registration Ontario 102

Table 3.4 Growth in percentages Ontario 103

Table 3.5 Growth in users Ontario 103

Table 4.1 First registration applications Ireland 144

Table 5.1 Participant’s key objective 160

Table 5.2 Risk matrix 165

Table 6.1 Sequencing for completion 187

Table 7.1 Total compensation claims and amounts in Ireland 231

Table 7.2 Electronic registrations and fraud rectifications in Ontario 232

Table 7.3 Total compensation claims and amounts in Ontario 233

Table 7.4 Breakdown of compensation claims and amounts: fraud and non-fraud Ontario 234

Table 7.5 Decisions of tribunal in Ontario 235

xv

In this book is told a tale of two innocents, one who owned land (he thought) and wished to sell it (he thought) and another who had money to spend (he thought) and wished to buy that land (he thought) Nothing could be simpler (they thought) Little foresaw they the dark and dangerous depths

of the ‘wide and sometimes largely uncharted sea’ to which they entrusted their ship of fortune (Farrand ( 1983 ), p 3 referring to Lee-Parker v Izzet [1971] 3 All ER 1099).

Since the 1980s the passing of title to land by way of sale and purchase or gift,commonly known as conveyancing, has been undergoing transformation on aninternational and unprecedented scale This transformation is due to the application

of technological advances to what was previously a paper based process Theapplication of technology to this process, known as electronic conveyancing,e-conveyancing or herein referred to as eConveyancing, has thrown up manyimportant issues for land owners and others who have an interest in the convey-ancing process such as consumers, professionals, academics and policy makers.1These issues include the roles of stakeholders in the process, the need for processimprovements, security, costs, removal of paper, incidences of liability and thequality of title

One of the foremost issues concerns the management of risk Does the tion of technology to such a traditional process have any effect on the management

applica-of risk? What, if any, are the actual and potential effects applica-of this technologicaltransformation on the management of risk in conveyancing? Is the shift in technol-ogy risk neutral? While the management of risk has always been a compellingconcern in the conveyancing process, with legal practitioners fighting a continualduel in the sale and purchase of property to protect their clients’ interests, how to

1 Harpum ( 2000 ), p 1 notes that the business of conveyancing is a significant political issue because of the time and expense involved.

© Springer International Publishing Switzerland 2015

G Brennan, The Impact of eConveyancing on Title Registration,

DOI 10.1007/978-3-319-10341-9_1

1

deal with existing and new risks becomes a vital and dominant feature once you tryadapt the process to a modern electronic environment The development ofeConveyancing provides the impetus for change to the process that can haveunforeseen consequences on the incidence of risk.

eConveyancing moves the conveyancing process from being a paper basedsystem of effecting and recording transactions to a modern electronic system viathe creation and empowerment of electronic communication networks The poten-tial impact of this change on the distribution of legal risk in conveyancing trans-actions with particular reference to Ontario and Ireland is investigated

There are a broad range of different models and systems of eConveyancing.2Thedevelopment of eConveyancing has primarily taken place in common law jurisdic-tions and Ontario and Ireland are two common law jurisdictions that representopposite ends of the spectrum in terms of integration of technology into theconveyancing process Ireland’s Law Reform Commission has acknowledged thatthe Ontario model offers the approach that best fits the Irish environment.3

Ontario is recognised as the most progressive eConveyancing solution currently in tion and is widely acknowledged as a reference source for new eConveyancing solutions in other jurisdictions The Ontario solution is the closest “end-to-end” eConveyancing solution that is currently in existence with functional models such as: property registration, solicitor communication facilities, online searches, online mapping functions and dealings with financial institutions.4

opera-Thus many commentators have recognised Ontario as the oldest most developedoperating system of eConveyancing in the world and it was the first jurisdiction tointroduce full electronic document registration.5

This analysis explores the perception that it is by far the most developedeConveyancing system by articulating the key components of eConveyancing,examining the extent of the Ontario system and comparing experiences in otherjurisdictions which have undergone reform in this area These jurisdictions includeAustralia, Scotland, New Zealand, British Columbia, England and Wales andNorthern Ireland

By contrast Ireland is only beginning to develop the initial stages of itseConveyancing project and thus has much to learn in order to take advantage ofadvances already made in this arena Ireland is entering a period of reform and it istimely that research is done to inform the debate The fact that Ireland is distinctivelybehind many other states6is seen as an advantage as it can try to emulate the successes

of other jurisdictions while avoiding the pitfalls that they have already encountered.There has been widespread acceptance that eConveyancing is a change for thebetter7and certainly many benefits of electronic advances in conveyancing have

2 Harpum ( 2004 ), p 5.

3 The Law Reform Commission ( 2006 ), p 8.

4 The Law Reform Commission ( 2006 ), p 89.

5 Murray ( 2004 ), p 21 See also Low ( 2005 ), pp 155–178 and Christensen ( 2004 ).

6 Killilea ( 2010 ), p 11.

7 Perry ( 2003 ), p 26 and Coffin and Pierre ( 2005 ), p 7.

been articulated.8However, many of these efficiencies and benefits primarily assistthe professionals or state agencies involved in the conveyancing process Writersand researchers have to a lesser degree explored the impact on land owners andthird parties or property claimants This analysis fills this gap by describing andarticulating current conveyancing systems in order to project the likely impact oftechnological change on those with, or seeking to assert, rights and interests in land.Risks are inherent in the conveyancing process and any change to that processwill impact on the risk landscape This effect, where risks are created, re-assigned

or otherwise effected by the introduction of eConveyancing, is the impact that isexplored Thus the word ‘impact’ in this context should not be understood asreferring to an empirical study Instead legal, descriptive, analytical and compara-tive techniques have been deployed in order to anticipate how, and to what extent, achange in transactional process may unintentionally affect the distribution ofsubstantive legal risk within property law systems

In effect this comprises a risk assessment constituting risk identification, riskanalysis and then risk evaluation The term‘risk’ in this context is the consequence

of change and the likelihood of that consequence having a negative effect This riskassessment allows for risk management9 which can minimise or eliminate theconsequences and thereby the negative impact

This is premised on the understanding that risks are inherent in the conveyancingprocess10and any change in that process, here the move towards eConveyancing,will affect or impact that risk landscape.11

The management of risk in the conveyancing process in Ontario and Ireland isinvestigated in light of moves from a paper-based conveyancing system towardseConveyancing in these and other common law jurisdictions While the primaryfocus is on Ontario and Ireland the experience in other common law jurisdictions,which have undergone reform in this area, has also been drawn upon These include

8 Gahan ( 2008 ), p 15; Wylie ( 2004 ), p 11; Treacy and O ’Sullivan ( 2004 ), p 6; and Murray ( 2004 ), p 20.

9 It is interesting to note that Susskind identified the legal risk manager as one of the five main future roles for lawyers See Susskind ( 2008 ), p 272.

10 No activity is without risk and action involves a judgement of the balance between risk and reward A higher degree of risk may be accepted if there is a greater probability of reward depending on the parties appetite for or aversion to risk.

11 In consultations with stakeholders in Australia a preference was expressed for ‘no change’ in risk and liability exposure The risk assessment carried out by Sneddon and his team showed that this would be unlikely given the introduction of new processes and requirements in NECS (now PEXA) which do not exist in paper conveyancing Instead a preference was expressed for the objective ‘no material net increase’ which they considered to be the closest achievable objective to

‘no change’ See Sneddon ( 2007 ), p 10.

Australia, Scotland, New Zealand, British Columbia and Northern Ireland Inparticular the move towards eConveyancing in England and Wales is referred to

as both the Ontario and Irish land title systems developed from that source.Developments in land administration, title registration and title insurance arealso explored Thus elements of property transactions in America, Europe andEastern Europe, Asia and Scandinavia are also examined

Given the broad nature of the conveyancing process it is not possible to deal withall the potential risks that might lead to loss in the course of the operation of aconveyancing system (whether electronic or not) Thus, the focus is solely on riskswhich impact on title registration and the security, protection or lack thereof thatthis registration offers to land owners, third parties and property claimants.Other aspects of the conveyancing process are not examined These include:(a) the pre contract enquiries generally carried out by transferees relating tomatters such as the size, physical condition or location of the property, outgo-ings and services;

(b) the legal and procedural requirements for completing the conveyancingtransaction;

(c) the requirements to be fulfilled in order to comply with planning and mental laws;

environ-(d) the mapping requirements laid down by the registering authority; and

(e) compliance with the law on taxation

Other aspects of the conveyancing process are dealt with but only in so far asthey impose on the main focus; risks impacting on title registration These include:(a) the legal and procedural requirements for drafting contracts or deeds;

(b) the legal right or capacity of the land owner to sell or gift title to land;(c) searches of the title register, deeds register, judgments12and other registers toestablish encumbrances on the title;

(d) post contract enquiries.13These relate to matters such as boundaries, rights ofway, identity, bankruptcy, possession, notices and proceedings relating to theproperty

(e) other enquiries to be carried out by the transferee so that he or she is on notice

of all the matters that are pertinent to the transaction14;

(f) the entitlement of a lender holding under a charge; and

(g) the legal and procedural requirements for registration of title to land in the titleregister

12 The term execution is used in Ontario.

13 In Ireland these are known as Requisitions on Title and are published in a standard format by the Law Society of Ireland.

14 The law will generally protect the transaction from being undermined by anything that could not

be discovered by a transferee for value who carried out all reasonable enquiries.

There are numerous stakeholders with an interest in the conveyancing process.However, this analysis focuses exclusively on the risks posed to land owners, thirdparties and property claimants It excludes those with an interest in the processalone, such as legal or other professionals.

This analysis also focuses on single residential conveyancing transactions This

is where a typical consumer15is purchasing a single house for occupation Sale ofpart of land from a scheme is excluded, as is the perspective of a developer orsomeone purchasing a buy to let property Instead the focus is on a consumer who is

a one off purchaser of a home As Viitanen points out “it is easiest to find the basicelements of transaction processes in the normal house transaction of families.”16Among rural families in Ireland this family home is often built on land that is giftedfrom the farm and thus this scenario is also addressed

The analysis is not concerned with problems common to the development ofinformation technology systems Thus it excludes the specific types of problem thatare common to all electronic processes e.g authorisation, identity verification,electronic signatures and passwords.17These electronic processes and their associ-ated difficulties are referred to but only in the context of shedding light on the mainfocus

Some risks may be affected by eConveyancing but are not produced by itwhereas other new risks may be produced by the development of eConveyancing.Thus the risks examined are both novel and traditional

3 What is title registration?

4 Who are the parties to a conveyancing transaction?

5 Who bears the risk in that transaction?

6 What risks impact on title registration?

7 What party is subject to that risk?

8 How is the risk impacted by the move to eConveyancing?

9 How might that party be protected in an eConveyancing system?

15 The law tends to distinguish between a consumer who is purchasing property for their own use

as a family home and a business person who is only interested in the property as a financial investment The law provides more protection to consumers as they are seen as not having the same business acumen as an investor.

16 Viitanen ( 2003 ), p 55.

17 For an examination of these issues in the context of eConveyancing see Keating ( 2012 ).

10 Is such protection desirable and feasible?

11 If not, what other party should bear the risk?

The answers to these questions are arranged in terms of a clear unifying purpose;risk and its incidence in paper and electronic conveyancing

A broad international and multidisciplinary approach has been taken in that theanalysis draws from law, economics and social science literature as well as doc-trinal property law It examines not just black letter property law but also the policyand procedure of conveyancing practice Thus the approach is not restricted to anexamination of formal legal rules and includes relevant contributions from practi-tioners and theorists from legal and non legal spheres

Some difficulties were encountered as follows:

(a) the lack of an accepted definition of what constitutes eConveyancing18;(b) inconsistent use of terminology by researchers and commentators;

(c) continual development of the law, systems, processes and procedures in eachjurisdiction

There is a difference in terminology between jurisdictions not just in ancing but also eConveyancing and thus a new vocabulary needed to be generated.This new neutral vocabulary has been articulated in Chap 2 so as to providecommonality across jurisdictions and systems This neutral vocabulary provides aset of clear definitions and minimises the difficulties caused by inconsistent use ofterminology by other writers

convey-This area of research relates to current live and developing eConveyancingprojects and thus elements are constantly being withdrawn and new initiativeslaunched This requires a continual review of the literature

In order to identify any relevant risks a transaction analysis is done through the use

of a model or abstracted process This involves the creation of abstract or modelconveyancing transactions and the allocation of risk to the parties to those trans-actions The use of abstract transactions with abstracted participants generalises theproblematic and allows the risks to be identified and allocated “The goal of anymodel is to simplify and provide an abstraction of a complex and diverse world.”19

In this way “[m]odels are useful precisely because they abstract from irrelevant

18 Sneddon ( 2007 ), p 2 says that eConveyancing does not have a precise meaning but encompasses

a range of activities in the process of recording, searching and transferring interests in land which may be effected using electronic (or digital) communications and/or electronic (or digital) processing.

19 Astke et al ( 2004 ).

details and thereby allow us to focus on the aspects of the domain we are interestedin.”20

Thus modeling is not used to give a detailed description of all possible real ortheoretical conveyancing transactions Instead the concept of modeling is used toillustrate the most general transactions and the most general relations betweendifferent parties that arise during those transactions

Sˇumrada explains that:

[m]odels help us to understand, learn and shape both a problem domain and its solution domain A model is a simplification of the selected part of reality that helps us to master a large and complex system, which cannot be comprehended easily it its entirety The model

is intended to be easier to use for certain purposes than the complete system observed Models therefore unable (sic) us to organize, retrieve, examine and analyse data about large systems.21

Visser and Schlieder point out that modelling real property transactions “is not atrivial task We have to model static knowledge (e.g parcels, buildings etc.) Wealso have to deal with processes, and we have to deal with abstract entities such asrights.”22

The development of a process model allows for a theoretical, descriptive andanalytical examination of risk This model is presented using visuals This use ofvisualisation23 in law is increasingly used as a means to present complex ideassimply.24

The two most common conveyancing transactions are modeled; an arms lengthtransaction and a gift The risks are identified, analysed and allocated to theparticipants This requires an examination of which of the participants suffers ifthe risk leads to a loss This impact on land owners, third parties and propertyclaimants is explored through the creation of abstract participants in the abstractedmodel of the conveyancing process The conveyancing process is examined fromthe standpoint of each abstract participant thus examining how risk is distributedbetween those participants

This use of standpoint, as articulated by Holmes,25Hart26 and Twining27vides a framework for identifying the tension between different claimants, allarguing for the upholding of their property rights Thus the laws of each jurisdiction

pro-20 Visser and Bench-Capon ( 1998 ), p 28.

21 Sˇumrada ( 2003 ), p 140.

22 Visser and Schlieder ( 2003 ), p 111.

23 For example, charts and diagrams Lawyers tend to be expert at using language and words to persuade and debate; they are less familiar with using visual techniques but these can be a powerful tool of communication.

24 For examples see Mahler ( 2010 ) See also Haapio ( 2010 ), pp 391–394 and Berger-Walliser

et al ( 2011 ).

25 Holmes ( 1896–1897 ), pp 457–478.

26 Hart ( 1959 ), pp 233–240.

27 Twining ( 1972–1973 ), pp 275–303.

are considered from the standpoint of a transferor, transferee, donor, donee, lender,third party and property claimant in order to identify the risks peculiar to each party.This incidence of risk between the security of the transferor and donor or transfereeand donee and the security of those interested in the land (lender, third party orproperty claimant) is examined in the context of the continual tension in a convey-ancing transaction between dynamic security and static security.

This transactional based account of property law is expressed in the articulated but well established practice of using an abstracted conveyancingtransaction to organise the law Function is determined by transactional context

under-so this approach meets the needs of a comparative analysis

Examples of the practice of this transactional type of analysis in the law of realproperty is provided by commentators such as Hewitt and Overton,28Williams andLightwood29 and more recently Farrand.30 These classic accounts of the law ofunregistered title conveyancing adopted this schematic focus for the law of realproperty As Williams and Lightwood explain the text is designed to discuss theincidents of a contract for the sale of land as they are usually presented to the notice

of conveyancers i.e in order of time.31Thus the incidents are set out as a transactionwould unfold Cooke and O’Connor32provide a contemporary example in the use

of this organising technique

Once actual and potential new risks are identified and allocated, there is anevaluation to determine if the person to whom the risk was allocated (either bydesign or not) should be protected from the effects of the risk being realised If suchprotection is not feasible or desirable then consideration is given to the allocation ofthe risk A number of choices are examined in determining the allocation The riskcould be;

(a) left with the party subject to it; or

(b) re-allocated to another party or entity; or

(c) it could be socialised through the use of insurance either as a feature of thesystem or through the establishment of a market

This examination requires a comparison and evaluation of competing risks and adetermination as who or what entity should bear the risk Thus mechanisms forremoving, minimising or distributing the risk are examined or the view taken thatthe risk is worth bearing given other accrued benefits

28 Hewitt and Overton ( 1929 ).

29 Williams and Lightwood ( 1936 ).

30 Farrand ( 1983 ).

31 Williams and Lightwood ( 1936 ), p (v).

32 Cooke and O ’Connor ( 2004 ), pp 640–666.

1.5 Scholarship

eConveyancing systems have not been extensively discussed in legal literature.Thus this research is a ground breaking piece of legal scholarship in the Irishcontext and more generally This research is the first research done in Ireland onthe incidence of risk in the conveyancing process in light of moves towardseConveyancing Thus it offers an insight into the possible effects of eConveyancing

on risk management in the Irish conveyancing system

As Ireland is entering a period of reform in this area this research has the ability

to influence policy at a critical point It will inform policy development and alsofurther academic debate as to the degree to which Ireland should make fundamentalchanges to its conveyancing system in the move towards eConveyancing It iden-tifies normative possibilities for reform of conveyancing in Ireland

The design of this research involves the novel use of organising conceptsthrough the creation and articulation of a model or abstracted process to determinerisks in the conveyancing process This abstraction provides a mechanism forignoring those aspects that were not relevant to the research in order to focusmore fully on those that were While the use of models in property law is notnew they are rarely articulated.33

The abstracted model of the conveyancing process in this research is based onmodelling the participants It involves the creation of abstract participants indealings with title to land This is original within the context of the doctrinal law

of Ireland and in terms of methodology within the legal discipline This modellingallowed the separation of the descriptive aspects and the identification of normativepossibilities for reform by exploring how things might happen thus revealingemergent properties

All legislation will initially be referred to by its full title but thereafter Irishlegislation will be referenced according to the year of its enactment (e.g the 1964Act) whereas the Ontario legislation will be referenced according to its title (e.g theLand Titles Act)

33 See Miceli et al ( 2002 ), pp 565–582 for an example.

Chapter 4 looks at land administration, land registration, the nature of titleregistration and the systems operating currently in Ontario and Ireland.

Chapter5 sets out the model of the conveyancing transactions, identifies theabstract participants and their standpoint It identifies the risks borne by eachparticipant and categorises the key risks to be examined

Chapters6 8then examine each of the risk categories and determine the impact

of eConveyancing Does an eConveyancing environment lead to no change in therisk profile of each participant or is there increased or decreased risk? Who, ifanyone, suffers if the risk leads to a loss in an eConveyancing environment?

In Chap 6 the risks posed by the registration gap and the formalities forregistration are explored Chapter 7 looks at errors in the register Chapter 8explores interests off the register which affect title, the destructive effects of aregistered transaction and interests which are not recognised and not capable ofregistration

Chapter9 is the concluding chapter It provides an overarching view on theimpact of eConveyancing on risk and examines potential mechanisms for remov-ing, minimising or distributing the risk or takes the view that the risk is worthbearing given the other benefits accrued Finally it seeks to draw conclusions toinform the reform process in Ireland

All of this analysis is set within the context of moves towards eConveyancingand developments in title registration in other jurisdictions across the globe

References

Astke, H., Mulholland, G., & Hyarady, R (2004) Profile definition for a standardized cadastral model In FIG Conference on Standardization in the Cadastral Domain http://www.fig.net/ commission7/bamberg_2004/papers/ts_02_04_asthe_mulholland.pdf Accessed 14 May 2014 Berger-Walliser, G., Haapio, H., & Rekola, K (2011) Contracts as roadmap for performance: Enhancing cross-disciplinary understanding through contract visualization In Institute for Supply Management, Working Paper for the 21st Annual North American Research Sympo- sium on Purchasing and Supply Chain Management 17 March 2011.

Christensen, S (2004) Electronic land dealings in Canada, New Zealand and the United Kingdom: Lessons for Australia Murdoch University Electronic Journal of Law, 11(4) http://www murdoch.edu.au/elaw/issues/v11n4/christensen114_text.html Accessed 14 May 2014.

Coffin, M., & Pierre, K (2005) Land registration: The Nova Scotia experience Caris 2005 Mapping a Seamless Society http://www.caris.com/conferences/caris2005/proceedings/ papers/11.pdf Accessed 29 Jan 2009.

Cooke, E., & O ’Connor, P (2004) Purchaser liability to third parties in the English land registration system: A comparative perspective Law Quarterly Review, 120.

Farrand, J T (1983) Contract and conveyance (4th ed.) London: Oyez Longman.

Gahan, E (2008) Taking full advantage of the possibilities of eGovernment Public Affairs Ireland, 51.

Haapio, H (2010) Visualising contracts and legal rules for greater clarity The Law Teacher, 44 (3).

Harpum, C (2000) Property in an electronic age Modern studies in property law (Vol 1) Oxford: Hart.

Harpum, C (2004) English experience: Title by registration – Preparation for e-conveyancing In Law Reform Commission Annual Conference http://www.lawreform.ie/Annual%20Confer ence%202004.PDF Accessed 18 Feb 2009.

Hart, H L A (1959) Scandinavian realism Cambridge Law Journal, 1959.

Hewitt, E P., & Overton, M R C (1929) Dart ’s treatise on the law and practice relating to vendors and purchasers of real estate (8th ed.) London: Stevens and Sons Ltd.

Holmes, O W (1896–1897) The path of the law Harvard Law Review, 10.

Keating, S (2012) Digital signatures and electronic conveyancing (LL.M thesis) National University of Ireland, Galway.

Killilea, M (2010, April) eRegistration in Ireland – An assessment of the transferability of the Queensland model (Dissertation) Dublin Institute of Public Administration.

Law Reform Commission (2006) eConveyancing: Modelling of the Irish conveyancing system The Law Reform Commission (LRC 79 – 2006) http://www.lawreform.ie/Reports_Published/ Default.135.html

Low, R (2005) Maintaining the integrity of the Torrens system in a digital environment: A comparative overview of the safeguards used within the electronic land systems in Canada, New Zealand, United Kingdom and Singapore Australian Property Law Journal, 11(2) Mahler, T (2010) Legal risk management (Ph.D thesis) University of Oslo.

Miceli, T J., Munneke, H J., Sirmans, C F., & Turnbull, G K (2002) Title systems and land values Journal of Law and Economics, 45.

Murray, K (2004) Electronic registration and other modernization initiatives in Ontario ’s land registration system In Law Reform Commission Annual Conference http://www.lawreform ie/Annual%20Conference%202004.PDF Accessed 18 Feb 2009.

Perry, R (2003) E-conveyancing – A critical view Conveyancing & Property Law Journal, 8(2) Sneddon, M (2007) Risk assessment and management in electronic conveyancing In Registering the World Conference, Dublin, 26–28 September 2007 http://www.prai.ie/uploadedfiles/con ference20071/papers/s4p1.pdf Accessed 14 May 2014.

Sˇumrada, R (2003) Conceptual modelling of cadastral information system structures In H Stuckenschmidt, E Stubkjær, & C Schlieder (Eds.), The ontology and modelling of real estate transactions England: Ashgate.

Susskind, R (2008) The end of lawyers? Rethinking the nature of legal services Oxford: Oxford University Press.

Treacy, C., & O ’Sullivan, J (2004) Land registration in Ireland – Current position and future developments In Law Reform Commission Annual Conference http://www.lawreform.ie/ Annual%20Conference%202004.PDF Accessed 10 Mar 2009.

Twining, W (1972–1973) The bad man revisited Cornell Law Review, 58.

Viitanen, K (2003) Purchase of real property in Finland In H Stuckenschmidt et al (Eds.), The ontology and modelling of real estate transactions England: Ashgate.

Visser, P., & Bench-Capon, T (1998) A comparison of four ontologies for the design of legal knowledge systems Artificial Intelligence and Law, 6.

Visser, U., & Schlieder, C (2003) Modelling real estate transactions: The potential role of ontologies In H Stuckenschmidt, E Stubkjær, & C Schlieder (Eds.), The ontology and modelling of real estate transactions England: Ashgate.

Williams, T C., & Lightwood, J M (1936) A treatise on the law of vendor and purchaser of real estate and chattels real, intended for the use of conveyancers of either branch of the profession (4th ed.) London: Sweet and Maxwell.

Wylie, J (2004) Keynote address: Need for a modern legislative framework In Law Reform Commission Annual Conference http://www.lawreform.ie/Annual%20Conference%202004 PDF Accessed 29 Jan 2009.

This chapter explains in detail the methodology and provides a neutral vocabularythus setting the framework for the creation of the abstracted model of the convey-ancing process

The methodology is primarily based upon doctrinal legal scholarship in the parative law tradition This approach advocated by Zweigert and Ko¨tz1attempts touse a functional analysis of legal processes to describe the substantive and systemicaspects of different legal systems There may be little or no convergence betweenthe systems and their terminology but many legal systems attempt to protect similarinterests Only rules which perform the same function or address the same problemcan profitably be compared Similar concepts won’t have the same label and thusresearchers must move past the formal label into function Thus an examination ofthe function of the rules within each system must be carried out Rules or laws withsimilar functions, in this instance to protect different property rights, will yieldcommon ground for research

com-Through this comparative study of the systems in Ontario and Ireland nesses and strengths are highlighted and any strengths of the Ontario system can befollowed and weaknesses avoided As Ireland is in the early stages ofeConveyancing a comparative study is appropriate to assist in the development ofits system Zweigert and Ko¨tz refer to this as modern comparative law developed in

weak-1 Zweigert and Ko¨tz ( 1998 ).

© Springer International Publishing Switzerland 2015

G Brennan, The Impact of eConveyancing on Title Registration,

DOI 10.1007/978-3-319-10341-9_2

13

the early nineteenth century which has a practical purpose, namely reform andimprovement of the law at home.2

Different systems are generally striving to achieve the same ends though often

by diverse means Restricting comparison to similar systems may exclude otherbetter ideas but for such a comparison to be feasible there must be some commonground between the items being compared Ontario and Ireland have many keysimilarities which provided the rationale for a comparison of their systems.Ontario and Ireland are western developed societies and have long establishedmarket economies Ireland and Canada are members of the OECD3and WTO,4

UN5 and IMF.6 Both have a tradition of democratic governance and achievedstatehood through independence from the United Kingdom They have commonrather than civil law legal systems and are English speaking The two jurisdictionshave a practice of secured lending for the purchase of property with a tradition ofrelatively unrestricted freedom of lifetime disposition of property Both jurisdic-tions have a similar division between deeds and title registration and the model ofland registration for both Ireland and Ontario developed from the English system.Thus a comparison of the systems in Ontario and Ireland is feasible

Table2.1shows some key comparators between the two jurisdictions

There is however criticism of comparative law and the view of Zweigert and Ko¨tzthat functionality is the basic methodological principle of all comparative law.7Teubner calls this functional equivalence but he takes issue with it and arguesthat attempts at unifying law8or convergence will result in new cleavages.9Legalinstitutions cannot really be transplanted from a foreign to a domestic culture butinstead they become a legal irritant which,

cannot be domesticated; they are not transformed from something alien into something familiar, not adapted to a new cultural context, rather they will unleash an evolutionary dynamic in which the external rule ’s meaning will be reconstructed and internal context will undergo fundamental change.10

He is of the view that globalising tendencies produce new divergences as theirunintended consequences.11

Another critical view is offered by Legrand who is strident in his opinion thatlegal transplants are impossible as legal rules cannot travel.12He argues that law

2 Zweigert and Ko¨tz ( 1998 ), p 54.

3 Organisation for Economic Co-operation and Development.

4 World Trade Organisation.

5 United Nations.

6 International Monetary Fund.

7 Zweigert and Ko¨tz ( 1998 ), p 34.

8 In his commentary European contract law.

9 Teubner ( 1998 ), pp 12–13.

10 Teubner ( 1998 ), p 12.

11 Teubner ( 1998 ), p 13 See also Kahn-Freund ( 1974 ), p 1.

12 Legrand ( 1997 ), p 114 At p 111 he equates transplant to displacement Another negative view

is offered by Paasch who states that internationalisation of law, including visions of legal integration and even unification of legal systems is an old dream See Paasch ( 2007 ), p 167.

Table 2.1 Comparison of Ireland and Ontario

$650,721i(almost €447,006) j

Estimated percentage of total land

mass registered in the registering

authority with registered title

Circa 96 % m (estimated

to be 200,000–250,000 unregistered titles)n

13 % (87 % of the land mass is crown landoand there are only 36,000 unregistered titles)pEstimated percentage of legal

titles registered in the registering

authority

Number of registered title land

parcels

2.14 million folios s 5.8 million parcels t

35 % with mortgage

32 % without mortgagev

House prices (% change over

Tax revenue on property as a % of

total taxationy

Value of new mortgage lending

for residential property

€568 million z $10 billion (new construction)

b Preliminary figure as of 1 July 2010 Statistics Canada ( 2011 )

c Gross Domestic Product 2013 statistics as billions of US dollars accessed 14 May 2014 at http:// www.oecd-ilibrary.org/economics/gross-domestic-product-in-us-dollars_2074384x-table3

h As of quarter 4 2013; accessed 14 May 2014 at http://www.environ.ie/en/Publications/ StatisticsandRegularPublications/HousingStatistics/FileDownLoad,15295,en.XLS

i As of quarter 1 2014 Canada Mortgage and Housing Corporation ( 2014 )

j As at 27 June 2014

k Dol and Haffner ( 2010 )

l http://www.statcan.gc.ca/tables-tableaux/sum-som/l01/cst01/phys01-eng.htm , accessed 14 May 2014

m Deeney ( 2014 ), p 3

(continued)

would need to be segregated from society to travel across jurisdictions and thiscould only occur if law was a “somewhat autonomous entity unencumbered byhistorical, epistemological, or cultural baggage.”13

A contrary perspective is offered by Watson who says we do legal transplant or

‘borrowing’ all the time and that “[i]n most places at most times borrowing is themost fruitful source of legal change.”14 The reality is likely somewhere in themiddle of these two divergent perspectives though the failures of ‘borrowing’probably generate more attention than the successes

For example Meadows and Griffin are of the view that previous title registrationinitiatives were “perceived to have failed to address the specific requirements ofBermuda and instead sought to impose an existing system from another jurisdic-tion.”15 These attempted transplantation initiatives are blamed by them for thefailure to introduce title registration into Bermuda

These arguments have merit however the aim is not to unify or converge the law

in Ontario and Ireland If the aim was to ‘transplant’ the Ontario system in itsentirety into Ireland there is no doubt it would become a major‘irritant’ While the

Table 2.1 (continued)

n James O ’Boyle Financial Controller Property Registration Authority by email 13 June 2014

o The land registration system administered by the Ministry of Government Services only isters land that has been patented by the Crown Jurisdiction for land that has not been patented is given to the Ministry of Natural Resources and this land falls outside the land registration system Vicki McArthur Teranet by email 15 June 2012

admin-p Alex Radley Legal and Technical Officer Service Ontario by email 7 June 2012

q Deeney ( 2014 ), p 3

r Alex Radley Legal and Technical Officer Service Ontario by email 7 June 2012

s James O ’Boyle Financial Controller Property Registration Authority by email 13 June 2014 See Property Registration Authority ( 2013 ), p 10 for the growth in numbers of registered land parcels since 2008

t Alex Radley Legal and Technical Officer Service Ontario by email 7 June 2012

u As at 2004 Dol and Haffner ( 2010 )

ac As at 27 June 2014

13 Legrand ( 1997 ), p 114.

14 Watson ( 1996 ), p 335 See also Ewald ( 1995 ), pp 489–510.

15 Meadows and Griffin ( 2007 ), p 5.

jurisdictions share a common history their legal systems are by no means the same.Instead the aim is to learn lessons from the Ontario system so as to determine howrisk is to be managed in a system of eConveyancing in Ireland.

As Lepaulle has said “[t]o see things in their true light, we must see them from acertain distance, as strangers, which is impossible when we study any phenomena

of our own country.”16Sen also refers to the need to transcend the limitations of ourpositional perspectives.17 He explores the search for some kind of position-independent understanding but acknowledges that we cannot hope to succeedfully in this endeavour as this is the view from nowhere.18

While acknowledging Sen’s argument this ‘view from nowhere’ provesunhelpful in this context as it is only by looking at the conveyancing processfrom the perspective of Ireland’s land law system that the benefit or negative effect

of any change can be evaluated As Chodosh points out decision-makers andscholars cannot be expected to understand the foreign without comparison to thefamiliar.19

Similarly Legrand states that:

unless the comparatist can learn to think of law as a culturally-situated phenomenon and accept that the law lives in a profound way within a culture-specific – and therefore contingent – discourse, comparison rapidly becomes a pointless venture.20

The act of interpretation of legal rules is embedded unconsciously in thelanguage and tradition of the interpreter.21Thus law has to be looked at in context.The context here is the conveyancing systems in Ireland and Ontario Thefunctional analysis is based upon the management of risk in the conveyancingprocess across the two jurisdictions and in particular the identification, analysis,allocation, comparison and evaluation of risks

Despite the similarities between the two jurisdictions there are fundamentaldifferences in concepts and terminology In order to overcome these differences aneutral vocabulary has been generated This clarification of terminology and mean-ing sets the stage for the creation of the abstracted model to be applied across thetwo legal systems

The necessity for this neutral vocabulary to overcome diversity between the twojurisdictions is explored initially before the neutral vocabulary is articulated

2.3 Neutral Vocabulary

It has often been said that law and language are intimately linked, as language structures the way we think and, consequently, the way we think as lawyers It is accepted wisdom that unification or even harmonisation of the law is neither possible without the creation of uniform legal terminology, preferably laid down in a limited number of ‘authentic’ language versions, nor without a superior authority (frequently a court) that is responsible for reaching uniform interpretation 22

The lack of a uniform legal terminology and uniform interpretation also arises incomparative law research

Jurisdictions have differing systems with fundamental differences in key cepts and terminology within that system This presents difficulties for comparativelaw researchers who wish to compare these concepts or terms across jurisdictions.The question of the tertium comparationis or the comparability of the items ofcomparison arises i.e is comparison possible?

con-Ferlan and his colleagues recommend deciding at an early stage what thecomparison will entail and:

using reasonably simplified methods, to identify manageable and comparable conditions in different countries so that the person making the comparison will not need to master the whole body of each country ’s property law Comparisons have to be standardised, despite the risks that this entails.23

Hence the importance of being self-aware in modelling conveyancing actions and the importance of identifying key concepts that perform the same roleacross legal systems

trans-Fundamental differences may arise not just in relation to the systems beingcompared but also the labels or terminology used In addition even when similar orthe same terminology is used across jurisdictions the meaning assigned to that termmay be different Transplantation of terminology and concepts may not prove tooproblematic between jurisdictions in the common law family particularly wheremany of the key concepts have continued to develop along similar lines However,such transplantation would likely prove more difficult between jurisdictions with-out these similarities though some commentators are of the view that “even in thearea of property law civil and common law share more principles and underlyingpolicies than meets the eye at first glance.”24

Akhtar sees eConveyancing as the way of delivering harmonisation of Europeanproperty law25 but other commentators note that the “diversity of individual

22 Van Erp ( 2003b ).

23 Ferlan et al ( 2007 ), p 28.

24 Van Erp ( 2002 ).

25 Akhtar ( 2014 ), pp 106–122.

economies and associated legal practices alone makes the concept of a commonland market model unrealistic.”26

Clancy acknowledges the impetus towards convergence but he is of the view thatcomparison of procedures between the common law and civil law systems is likecomparing apples with oranges.27He refers to the adversarial system in commonlaw jurisdictions where conveyancing is based on the principle ofcaveat emptorversus the civil law system where there is an independent statutory official and thevendor has a duty of disclosure This independent statutory official known as thenotary ornotaire acts on behalf of both vendor and purchaser and is an agent of theState

Many of these countries have complete eRegistration systems but will neverprogress to full eConveyancing as there is little, if any, part of the conveyancingprocess taking place outside the role of the notary A clear example of this isEstonia where the notary performs all the necessary inquiries and prepares all thedocumentation which is digitally signed and sent electronically to the land registrywhere it is automatically registered.28Commentators often refer to these systems aseConveyancing systems but a fundamental tenet of eConveyancing is the creation

of a central hub between multiple stakeholders both private and public, not justbetween different arms or branches of the state.29

Clancy also notes that business processes can be benchmarked due to a commonunderstanding of the terminology but “[t]his is not the case with land administra-tion, which operates at jurisdictional level and inherits terminology that is oftenpeculiar to the particular jurisdiction being evaluated.”30 Akhtar notes that realproperty law is now one of the few legal branches which has remained essentiallynational and in which differences among national laws remain greatest.31Lemmen

et al also point out the lack of a shared set of concepts and terminology betweencadastral32and land registry systems.33

This lack of a shared set of concepts and terminology is being partly addressed inEurope by the UN34and the publication of a glossary of terms by the European

26 Dale et al ( 2006 ), p 3.

27 Clancy ( 2007 ), p 11.

28 Ra¨tsep ( 2008 ), p 3 provides a simple explanation of the conveyancing procedure in Estonia.

29 See Chap 3 for a detailed examination of the elements required for eConveyancing.

30 Clancy ( 2007 ), p 5.

31 Akhtar ( 2014 ), p 120.

32 Stubkjær distinguishes between the cadastre with its spatial focus and the land register with its legal focus See Stubkjær ( 2003 ), pp 227–238 The cadastre which exists in Norway and many other west-European countries, once under the command of Napoleon, generally deals with mapping, land use and land values for taxation Land registration often sits alongside this cadastre Together they can be defined as the land administration system (LAS) The distinction between cadastral and land registry systems is explored further in Chap 4

33 Lemmen et al ( 2005 ).

34 The Food and Agriculture Organization of the United Nations ( 2003 ) sets out a comprehensive thesaurus of terminology.

Land Information Service (EULIS).35Paasch sees this as an important contribution

in spreading knowledge of national real property domains to interested parties butpoints out that it does not provide a fully standardised description of the informa-tion.36The UN has also published guidelines on real property units and identifiersaimed at supporting efficient and effective national land administration and man-agement The guidelines include a survey of the real property rights in 18 countries

in Europe which prove to illustrate a great degree of diversity.37

Another publication across the world wide stage is the Inventory of LandAdministration Systems in Europe and North America produced by the LandRegistry of England and Wales on behalf of the UN Economic Commission forEurope Working Party on Land Administration (UNECE WPLA).38Though this is

an inventory of systems and organisations rather than a thesaurus or glossary thisalso demonstrates the diversity of real property rights39and the disparity in systemsand processes

The difficulties as they apply to property law are already acknowledged.Zevenbergen and his colleagues note that the actors and procedures involved intransactions in real property appear to differ even between countries with compa-rable economies.40 Stubkjær and his colleagues, who were working on the sameresearch project, note that different legal traditions in different European countriescreated terminological and semantic difficulties in achieving comparable descrip-tions.41Comparison across countries is difficult because the same term may be useddifferently and there may be no exact correspondence between concepts.42Thusclarification of terminology and meaning is crucial

In order to address these problems Zweigert and Ko¨tz state that comparativelawyers must cut themselves loose from their own doctrinal and juridical pre-conceptions and liberate themselves from their own cultural context in order todiscover‘neutral’ concepts.43

Thus rather than transplant and adopt the meaning orterm assigned by one system or the other, a new system neutral vocabulary can begenerated to incorporate the terms for each jurisdiction Neutral vocabulary canprovide a degree of commonality across the jurisdictions and systems being

35 http://www.eulis.eu/

36 Paasch ( 2007 ), p 168 Paasch also refers at pp 168–169 to the standardised core cadastral model developed by Van Oosterom and his colleagues which does not focus enough on the problems with establishing a common terminology in the domain See Van Oosterom et al ( 2006 ), pp 627–660.

37 United Nations Economic Commission for Europe ( 2004 ).

38 HM Land Registry on behalf of the United Nations Economic Commission for Europe Working Party on Land Administration ( 2005 ) For more up to date information in draft see the United Nations Economic Commission for Europe Working Party on Land Administration ( 2014 ).

examined The development of this neutral vocabulary increases the prospect offinding parallel provisions or an echo of similar type provisions in each system.Paasch is of the view that:

[t]he establishing of a standardised terminology for the classification of the different rights and restrictions would make it possible to ‘match’ the different real property rights and restrictions existing in one national legal system with their counterparts existing in another legal system, even if they are not created by the same legal process and have a different terminology 44

This view demonstrates the importance of developing a common terminologywithout distorting the systems being compared

The lack of an accepted definition of what constitutes eConveyancing, sistent use of terminology by researchers and commentators and the difference interminology between jurisdictions, not just in conveyancing but also ineConveyancing, thus required that a new vocabulary be generated

incon-This difficulty with terminology and scope is demonstrated by the use of the termelectronic conveyancing in a new cross border European initiative This projectcalled Cross Border Electronic Conveyancing (CROBECO)45was initiated by theEuropean Land Registry Association (ELRA)46 as a cross border transactionscheme which allows purchasers to buy foreign immovable property in othermember states The scheme provides a bilingual contract and allows the purchaser

to apply the laws of their own country thus protecting them against “the unknownconsequences of contracting a sale in a foreign legal system that is not familiar tothem”.47 The current focus is on English and Dutch buyers of property rights inSpain and Portugal

O’Sullivan refers to the fact that in some jurisdictions the terms eRegistrationand eConveyancing and related concepts are ill-defined and used somewhat inter-changeably.48He attributes this to differences in legal systems and sometimes to theuse of language Thus in outlining the developments in Ireland he proposed thefollowing working definitions:

eApplications: this covers ordering documents and services online eLodgement: relates

to the lodgement of applications resulting in changes to the register ( ‘registration’) eRegistration: lodgement of documents occurs in electronic format only (paper documents are not lodged) and all registrations are made on an electronic register eConveyancing: the term envisages paperless transactions through most or all of the stages of the convey- ancing process from pre-sale to post completion of the transaction.49

These definitions were presented at the Registering the World Conference50inDublin in 2007 where most, if not all, of the jurisdictions involved in eRegistration

and eConveyancing advances were represented.51 They have remainedunchallenged since that time and have become internationally accepted.52Thesedefinitions are drawn upon, amended and expanded substantially in order to gen-erate a neutral vocabulary for this research.

This neutral vocabulary as set out below provides commonality and a consistentset of terms that can be applied across jurisdictions and systems It provides anexplication of knowledge and meaning in order to overcome diversity betweenjurisdictions It attempts to provide unambiguously defined concepts for the model-ing process by setting out the meaning for terms in the model This vocabulary alsolimits the boundaries and sets out the parties to the conveyancing transactions to beexamined

While the phrase neutral vocabulary is used here, other commentators andresearches have chosen to use different terms For example Paasch refers tostandardised terminology53while O’Sullivan refers to working definitions.54Visserand Schlieder use the term ontology to mean a language of shared concepts.55Theypoint out that while there are already ontologies available in the law domain thesehave been confined to legal reasoning and spatio-temporal ontologies and, in theirview, the inability of these ontologies to describe processes might be one reasonwhy they have not been used frequently in the development of models of realproperty transactions.56Thus Visser and Schlieder and their colleagues turned tosoftware engineering to build their model of real estate transactions

Visser and Bench-Capon point out that few authors have explicitly specifiedtheir conceptualisation of the legal domains in a (semi-) formal language.57Havingcompared four legal ontologies they also come to the conclusion that none of theontologies seem to have adequate provisions to specify legal procedures Theypoint out many of the difficulties with comparing legal ontologies and suggest thecreation of libraries of legal ontologies, indexed on task, legal subdomain, appli-cability, and abstraction level.58

Hage and Verheij present an abstract model of the law as ‘a top ontology’.59

Their aim is to find heuristic guidelines for legal knowledge representation by amodel based on two crucial characteristics of the law Firstly, that the law is a

51 Fifteen jurisdictions were represented including Canada, Ireland, England and Wales, Australia and New Zealand.

52 United Nations Economic and Social Council ( 2007 ), p 4.

53 Paasch ( 2007 ), p 177.

54 O ’Sullivan ( 2007 ), p 5.

55 Visser and Schlieder ( 2003 ) This book is the opening book for research conducted between

2001 and 2005 The concluding book is Zevenbergen et al ( 2007 ) available at http://repository tudelft.nl/view/ir/uuid%3Ace45bcf6-2cc8-46a3-9305-8526df914887/ See also http://costg9.plan aau.dk/ for further details of this study and ongoing commentary and research.

56 Visser and Schlieder ( 2003 ), p 111 For an examination of these ontologies see pp 109–111.

57 Visser and Bench-Capon ( 1998 ), p 32.

58 Visser and Bench-Capon ( 1998 ), pp 53–55.

59 Hage and Verheij ( 1999 ), pp 1043–1077.

dynamic system of states of affairs and secondly that these states of affairs areinterconnected.60 In this way they take account of events thus reflecting thesequential nature of the legal process.

These commentators are using the term ontology to express language as a method

of organising and structuring information about law and legal systems They are ofthe view that the ontologies already available in the law domain are flawed in thatthey do not take account of law as a process or sequence of events and this is why theyhave not been used frequently in models of real property transactions

There is no doubt that many aspects of law are governed by the sequential nature

of legal transactions and this is particularly evident in conveyancing where one step

is often predicated on a prior step in the process.61

In articulating the terms forming the framework for this examination the termneutral vocabulary was chosen as providing a simple yet accurate reflection of thepurpose for its inclusion A specific attempt has been made to keep the languageclear and unambiguous so as to open this analysis to those without any detailedknowledge of the conveyancing or registration process Though much of thevocabulary stems from a common law legal perspective and this may confuse areader from a civil law background

This neutral vocabulary is as follows:

eRecords

This is the first phase of eConveyancing It requires the registering authority toconvert all its paper records to an electronic format This phase is a subset ofeApplication and eRegistration

eApplication

This is also a subset of eRegistration and is the second stage of a widereRegistration and eConveyancing project It involves electronic messaging ordata transfer from the lawyer to the registering authority but this must subsequently

be followed by the lodgement of paper This may also be referred to aseLodgement.62It is a precursor to eRegistration and may become obsolete whenfull eRegistration is introduced Until then eApplication and eRegistration mayoperate in parallel

60 Hage and Verheij ( 1999 ), p 1043 Signing a sales contract is one of the legal topics modeled See pp 1049–1050 and also p 1054.

61 This aspect is explored further at Sect 5.7 and in Chap 6

62 Note that O ’Sullivan divided the initial stages into eApplication and eLodgement See

O ’Sullivan ( 2007 ), p 5.

eRegistration is the application of technology solely to the registration element of aconveyancing transaction This will involve electronic messaging or data transferfrom the lawyer to the registering authority No paper documents are lodged.63This

is an essential element of eConveyancing and is usually a precursor to it It is thethird phase before the final development of eConveyancing

eConveyancing

The application of information technology to the conveyancing process (oftenreferred to as electronic conveyancing or e-conveyancing) O’Connor says thatelectronic conveyancing or EC is not a term of art, but can refer to any part of theconveyancing process being done through the transmission of digital data.64 Itmoves conveyancing from being a paper based system of recording transactionsand documents to an electronic system via the creation of a secure electronicnetwork and a set of processes underpinned by technology

The network can take various forms These include a desktop applicationbetween each stakeholder group, a desktop application for all stakeholder groups,

a stakeholder portal or a central hub The differences between these options and anassessment of their respective advantages and disadvantages are set out in the IrishLaw Reform Commission Report on eConveyancing.65 The Commission recom-mends the central hub model as the most appropriate model for Ireland66howevernot everyone agrees

Connolly is of the view that this model is unnecessary and too cumbersome forIreland.67Instead she is in favour of a stakeholder portal.68In another study Killileafound that generally the Queensland model of eRegistration met the requirements

of a successful service for Ireland.69He dismissed the Ontario hub model as beingexpensive to develop and maintain due to the use of electronic signature technol-ogy70however any eConveyancing system will require some form of authenticationusually involving an advanced electronic signature

eConveyancing is defined in more detail in Chap 3 which also explores therelationship between eRecords, eApplication, eRegistration and eConveyancing

63 O ’Sullivan ( 2007 ), p 5.

64 O ’Connor ( 2006 ).

65 The Law Reform Commission ( 2006 ), pp 121–134.

66 The Law Reform Commission ( 2006 ), p 136.

67 Connolly ( 2007 ), p 61.

68 Connolly ( 2007 ), p 56.

69 Killilea ( 2010 ), p 80.

70 Killilea ( 2010 ), p ii and p 3.