Deprivation of Land Ownership

Deprivation of Land OwnershipThe surest way to deprive a peasant of his cut back is to give him a secure name and make it freely negotiable.R Schickele 1962, cited in Tim Hanstad, Designing Land Registration Systems for Developing Countries Am. U. Intl L. Rev. 13 (1997) 667. Discuss.Some get wind realm dispossession as the cornerstone of the past colonial pick out economic and political policies that has lead to the capitalism as we see it. Land dispossession is non only established on trim back grab by use of force but also has been intensified by new innovative types of topographic point and property regulation, confirming some of the Loakean philosophies of property and its relationship to society and its diverse make of ethnicity and race. Further more the gentle also intimates that there is a relationship between dispossession and social and economic standing within society. This obligate sh each(prenominal) establish the broader implication of the in a higher plac e quotation and try to examine the relationship between the powerfuls (those who argon economic onlyy and or socially superior to the different) ability to deprive the lesser from their grime and whether or not there are any obstacles in their way, or has the whole structure been set up been set up as the title suggest to make it easier.To understand the above assertion it may be necessary to understand a capitalist approach to reach and dispossession and before that we need to understand enrolment in context of this question and its historical development. Does this question suggest that dispossession of land is an exclusive relation between the rich and the poor, or is the relation more mixed and less sinister than is been suggested. To make sense of this the denomination will try to starting signal break it overmaster to its component parts and then try to hu human race universe it together.Nevertheless ownership of land is a natural phenomenon in our societies, howe ver in the scheme of human history this is a new development. , in the bulky sweep of human existence, it is a fairly recent invention. Many question arise from this statement, that where did these ideas originate, what is really ownership of land, and how hatful it be that a line wasted on the land by a sword sens denote ownership and control. These assertion in our modern society are alien, as land ownership is so ingrained into our psyche. Surely before you are dispossessed or deprived if something you must fox owned it or had rights to it premiere.Pre-RegistrationBefore title registration there was John Locke. In his writings Two Treaties of G everyplacenment1 Locke summarise prehistory on land and ownership as a God (the graven image of the Abrahamic religions) given inheritance to the Children of Men2 in common, this is a superstition that in this scenario one can or has a right to own land or a right to own land. However this is not John Lockes view on ownership of lan d. His starting position is that man has an ownership in himself3 which is exclusive to him against all others. Then he states that that a mans physical labouring and what he clears from his own hands is also his own exclusive ownership. What Locke then goes on to summarise deeply that then what he toils on the land and what he produces then becomes his own property too and becomes excluded from common ownership4. In summary what Locke can be summed up to adduce is that if man build a house on the land it is his house and if he make believes the land because of his labour it is his land, and therefore the philosophy of Locke can be used to ascribe prehistory ownership of land. Agriculture made the mans corporation to the earth more intense. Tilling the soil, making homesteads and communities all contributed to a more direct investment in the land. Nonetheless this was not the ownership of land as we know it.Historical context is incredibly significant, in particularly with conc erns to land ownership, this is important and history of land entitlement started in the United Kingdom and was exported to its colonies. This history is important to the context of this article as the histories of many dispossessed people are from the former colonies. While land was owned by the Anglo-Saxon in England prior to the invasion of England in 1066, it was William the First that usurp the land and redistributed it to his stalwart in favour for services rendered and to be rendered5. He devised tenures, the kings loyal man provided him with services which might be providing horsemen and other personal who did the kings business, tenure. The ownership of the land thus remained with the crown. This was the preserve of the Common constabulary.In Pottages writing6 The Measure of Land, he describes the archaic ways land conveyancing took place in the past (pre-registration documentation of land ownership). He describes the lengths to which potential owners would have to good t o try and get good (or advance) title to the land they wished to own. This could be by medieval turf cutting7with a sword, or to confirm fate and events as to instil it into the memory of the local as a symbolic time so that the event could denote the day the land changed owners, this grew to a stage that to have good title would mean that the possessor would have as much historical documentation as trusts in writing to dig up if there were a dispute that the possessor had better title, however any possessor could be dispossessed regardless of the quantity of documents at hand if someone put up a document that may show that they had had the better title by whatever means and that that hadnt to date been extinguished. Yes complicated and fraught with pitfalls. monomania at that time was the original evidence towards ownership, coin the phrase that possession was nine tenth of the honor accurate alluding to the fact that that one tenth could unflustered dispossess you if you h ad not covered or collected all the information.However the earliest ownership of the land is near enough historically impossible to prove, so long as you had enough retrospective history on the property in your possession you would be un plausibly to be dispossessed of it. The likely vendee would need to be satisfied the chain of ownership could be evidenced to a specific point in time, before 1875 this would have been 60 years8, in genealogical terms approximately four generations.Long lines of historical record to the ownership of land would cement the ownership of the land and the elite families that owned them. This meditation established the elite classes ownership of estate. The longer these few families kept possession of the land the more it hid in some result highly contested and disputes over land9.RegistrationIn an article written by Keenan10, she says that title registration has become recognised as a modern globalising trend in land law. Keenan say that these measu res are being readily and free being accepted by governments in greater numbers across a multitude of jurisdictions globally, and where it is not being done then the world bank and the International Monetary Fund are demanding it as parts of global deals whether the purpose it to unify or make easier land acquisition we can only speculate.With the induction of the industrial revolution, came the need and the demand for more secure ownership of land. During the 1700s law relating to real property stagnated in statutory terms, however doctrine continued to evolve by judges in the courts, for example under judges like headmaster Nottingham (from 1673-1682), Lord King (1725-1733), Lord Hardwicke (1737-1756), Lord Henley (1757-1766), and Lord Eldon (1801-1827) . As the industrial revolution took h disused globally and trade expanded, the influence of new money of the business and industrial classes was also growing, and the once dominant wealth and political clout of the landed gentry w as in decline. Adam Smith discussed in his book The Wealth of Nations that the land owners were able demand and take rent from others for very little equal in monetary term . Through the 1800s there were many attempts at nerve-racking to replace the document based ownership to some kind of registration administration.The colonialist settlers living in the colonies had a different populate of societal and political experience than those who were back in England. At the time the settlements were being colonised in North America and Australia11 by the British. As land was being possessed, occupied or settled in the colonies, a form of legal confirmation was needed in order to give the settlers security and title. So in 1857, Robert Torrens the prime look of South Australia decided that he was going to dedicate his time in land reform and in particular to develop a land registration brass for transfer of land in the colonies. He had indentified that on occasions the English system of land conveyance was sometimes more costly than the cost the land itself12.The Torrens SystemIn discussing the establishment system of title and the induction of Torrens, it is helpful study the background and direction of what Torrens wanted to establish once he finally established the system in South Australia13. There are important difference between what was happening in the past and the Torrens system, crucially the biggest change from the past was to create centralisation registration of the epithet. The reason was to combat the past systems failing and in particular the skewed character of the old system and to create a safer alternative on the central system14. Torrens was of the opinion that the old system was completely redundant and not fit for purpose15 and because of this Torrens set up the new and better and principally fair system. The idea Torrens based his system on was originated on the Mirror Principle, Curtain Principle and also the insurance Principle16. The words may suggest the Mirror Principle in the reflection of the ground realities and the facts around the owners title, the Curtain Principle would hide any defects and therefore the purchaser could rely exclusively on the just having the registration document and finally the Insurance Principle underwriting any possible errors and providing compensation when a mistakes occurs17, what this gave was provided was assurance of title and ease of use of the system. Torrens system was described as not being a system of registration of title, but being a case of title by registration18. One of the cornerstones key to Torrens system was something called indefeasibility, meaning the new title owner would only be liable to interest registered at the time19. However at the being deferred indefeasibility, was accepted20. What this entailed was that in case of fraud to a bona fide purchaser, indefeasibility was not granted until both and blameless owner and an blameless buyer were present. Thi s was however later overturned in court21. The success22 of the system comes down it simplicity. To avoid the stickyies for the buyer when doing legal searches, Torrens Mirror principle was established. This did not give any guarantee of validity but simply provided priority if valid23.As Keenan says in her article, on this aforesaid(prenominal) subject, that, the Torrenss system made it simpler, cost effective and speedier for investors to re-sale the property for the investors then before the Torrens system was introduced.English Land RegistrationThe first gear semiformal land registration system came about in the in England four years after the establishment of Torrens system in 1862. These were followed by two go on Acts in 1875 and 189724. Then in 1925, the Law of Property Act 1925 was passed and enacted. The big difference between the two systems was that PLA 1925 allowed for overriding interests, like easements25, squatters rights26, and lease with terms of 21 years or l ess27, these were similar to some of the indefeasibility expressed in the Torrens system.dispossession By TorrensBecause of Torrens and the Curtain principle any previous historical connections with interest in and any entitlement thereto where hidden behind the curtain once the land was registered. Once registered anything that came before vanished28, the people how did have the said relationships could effectively become trespassers on the land that they freely roamed or lived in historically. The Torrens system found great favour by other colonialist and spread apace through the colonies like an epidemic.DispossessionThe idea of dispossession has been insidious in the writings of academics and campaigners who want investigate, write detail of and confront ethnic capitalism. The cruelty of dispossession includes and is not restricted to, being dispossessed of property whether it is your land or your home, country, your tools and resources of survival, your historical back ground, language and your own person, your character, can describe in one way or a combination of ways a large number of the global populous at the currents times. The spread of imperialism across the world has not been forgotten. However the aftermath of imperialism or colonialism has unexpended its bitter scars, but also has developed into modern forms too. Modern capitalisms has its own incarnations of reasoning, influence and manifestations (collectively known as Cultures of Dispossession.From what has already described above this article can demonstrate how dispossession has become a common place which is not exclusively to economics, societal or the legal register. The various manifestations of dispossession demonstrates endorsement effects of hundreds of years of capitalist accumulation focused around action of the possessive personage and the consequent result of ever ready onto rationally and politically dispossessed of the ability suitably own or to be free. The sexual orientat ion/ gender and rascality is not merely dependent but are the construct of this article in the sense that these are features that are re-occurring field in dispossession. Holistically this article is demonstrating that dispassion by title is just ones means by which dispossession happens.By concentrating on means on the ways of dispossession as one of the clear modes of authority of colonial capitalist arrangement, in this article we have already looked at judicial machinery used to dispossess. In the alternative possession has to be in the realms of the judicial belongs ideologically to a spatial sphere, that takes into beak current political and economic thinking in a verity of ways. However the focus of the nest section shall be on dispossession by use.Foreclosure K-Sue Park in the article Money Mortgages and Conquest of America, highlights a discussion of foreclosure, the modern phenomena of dispossession. When the colonialist settled in America they developed on the English law that they had inherited by virtue of their origins, to develop and create their own individual and unique model taking into account and adopting to the new ground realities of a conquered land29. moreover the development of owe in America, followed one fundamental constructive change across the settlers kingdom (the colonies) and that was the how simple foreclosure had become (was it by default or design?) on land, bordering on land being dealt with in the same way as chattels, which was a contrast from the difference of land and chattel had be maintained in the old English system30.Academics have made it apparent that the everyday threat of repossession (the English word used for the America for dispossession) in the way mortgages are practiced by way of a uniquely American colonial notion31. The narrow window from which the American historian view their own historical prospective of property/mortgages dealings, illustrated ho that the transaction by enlarge occurs amongst wh ite European / American during the late seventeenth century and early eighteenth century. The alterations in mortgage can be described as happening earlier then some historians mention, and the interpretation of that is to assume the acceptance that the relaxed and unimpeded, prevalent repossession first happened on connection with dispossession of the natives.On the onset it has to be understood the originality of the American mortgage, and it is also crucial to realise that extremely lasting practice of protecting individual affiliation to land in English property law before settlers left to colonise. The deeply held principle predilection was mirrored by limitations found uniquely in English mortgages. Before the seventeenth century, at the time the first British settlers setup colonies in America, it was near on impossible to detach someone from his land because of debt dealing through English law.32 Previously the earliest documented use of land to secure debt was established an instrument known as the gage33. From the inception of debts incur a cost of interest payments as a type of usury at this period, English lenders who are allowed to a gage, were allowed to collect the rents and the fruit of the land34. The benefits granted to lenders at that time, is not without difficulty able to connect the right and duties that exist by law in estate currently, the benefits ordained to those lenders of the past emanate directly from the aerated land. A chief justice of the king of England in the twelfth century, explained and identified two types of gages the living gage and the dead gage or the Vif gage and the Mort gage35. In the Vif gage the lend and adjoin the fruits and rents towards the debt with the expectation to reduce the debt. By contrast if you had the mort gage the leader is forbidden from collecting the fruit or other correlative benefits to reduce the amount of debt but can be accumulated as a profit to the amount of loan.36 As the mort gage was the system that that avoided the prohibition on interest, it become the chosen gage37. At the beginning the right of the lender was surprisingly a feeble, but with the course if time have more likely have been able to possession for the duration of a loan.Scholar of business institute are brought closer to affiliation with the law because of the closeness of the connection actions of the association and the gambling intrinsic in the great efforts among and bounded by partners.38ConclusionIt must firstly be stated that the study of dispossession id fraught with complexities, more difficult it such a complex area is from the myriad of information and the intricate and complex writing out there, it is difficult for the author to stay focus, rather than what is likely to occur of vying off at tangent only to rein oneself back in. The conclusion for this article has to come from the writing of one of the best pieces written work read by this author, and that is from Sarah Keenans Smoke Curtains and Mirrors The turnout of race Through time and Title Registration39. Why? Because Keenan has been able to stay extremely focused on the theme through-out and written a great article. Nevertheless this author has the perilous task to follow that.The main feature of this article has been the development of title registration systems and how they all seem to be linked and woven from the same cloth. Registration was developed by the forced necessity of an overly complex, convoluted system that still left the buyer at risk even after investing huge amounts of time and money. The irony of the old system is that it could dispossess some one of their title by default as the system had no safety net, there should have been a label on the old system that alway read buyer be weary.Secondly we discovered that the landed gentry liked the old system so much that we discovered to this they hold property in the old way, where it is passed down from generation to generation described b y Keenan as a multi generational monopoly of estate ownership. We learnt that the same gentry that owned the land also were the political leader that had to bring in law reforms. It took nearly eighty years from when the idea was first floated to the inception of the Law of Property Act 1925. The comparable and original operable system was introduced in South Australia by Torrens. While it was in principle and prima facia a good system, the undertones and its net affects were very dark indeed. Torrens system was easy to use, it was quick and it was cost effective. But in its creation was hidden the mechanism by which the aboriginal indigenous people would be dispossesses. Torrens was notably the same man who previously had dispossessed the poor Irish farmers in the Potato famine, and gave the titles cheaply to the gentry.It may be easy to dispossess a poor man by giving him a title and then freely negotiating his property from him for next to no value. However why go through all t he that when it can be done by a doctrine formulated by Torrens, this document was so popular in what it could do that it was adopted very quickly in the colonies and whole nations of indigenous people were dispossessed, whether in Australia, Canada, America, India or Africa.A discussion was tried to be articulated in this article that there were other ways of easily dispossessing poor people, one being older than we might have thought, and that is by debt arrears and repossessions or as the Americans call it foreclosure.Finally it is easy to say but harder to articulate in a limited article the many ways of dispossessing the poor.1 Page 327 Chapter V, Of Property by John Locke Two Treaties of Government first published in 1960, from his original book and additional found manuscripts. https//moodle.bbk.ac.uk/pluginfile.php/590998/mod_resource/content/1/Of%20Property.pdf2 Page 327 Chapter V, Of Property by John Locke Two Treaties of Government first published in 1960, from his origin al book and additional found manuscripts. https//moodle.bbk.ac.uk/pluginfile.php/590998/mod_resource/content/1/Of%20Property.pdf3 Page 328 Chapter V, Of Property by John Locke Two Treaties of Government first published in 1960, from his original book and additional found manuscripts. https//moodle.bbk.ac.uk/pluginfile.php/590998/mod_resource/content/1/Of%20Property.pdf4 Page 329 Chapter V, Of Property by John Locke Two Treaties of Government first published in 1960, from his original book and additional found manuscripts. https//moodle.bbk.ac.uk/pluginfile.php/590998/mod_resource/content/1/Of%20Property.pdf5 http//www.wwlia.org/LegalResources/UK/ID/258/History-of-Real-Estate-Law-The-Old-English-Landholding-System.aspx6 The Measure of Land by Alain Pottage, The Modern Law Review 1994, pile 57, pages 361-3857 The Measure of Land by Alain Pottage, The Modern Law Review 1994, Volume 57, page 3618 Smoke, Curtains and Mirrors The Production of Race Through Time and Title Registration, Sa rah Keenan, School of Law, Birkbeck, University of capital of the United Kingdom, Malet Street, London WC1E 7HX, UK Springer Science+ line of work Media Dordrecht 2016, Published 27 October 2016.9 Smoke, Curtains and Mirrors The Production of Race Through Time and Title Registration, Sarah Keenan, School of Law, Birkbeck, University of London, Malet Street, London WC1E 7HX, UK Springer Science+Business Media Dordrecht 2016, Published 27 October 2016.10 Smoke, Curtains and Mirrors The Production of Race Through Time and Title Registration, Sarah Keenan, School of Law, Birkbeck, University of London, Malet Street, London WC1E 7HX, UK Springer Science+Business Media Dordrecht 2016, Published 27 October 2016.11 Smoke, Curtains and Mirrors The Production of Race Through Time and Title Registration, Sarah Keenan, School of Law, Birkbeck, University of London, Malet Street, London WC1E 7HX, UK Springer Science+Business Media Dordrecht 2016, Published 27 October 2016.12 Smoke, Curtains and Mirrors The Production of Race Through Time and Title Registration, Sarah Keenan, School of Law, Birkbeck, University of London, Malet Street, London WC1E 7HX, UK Springer Science+Business Media Dordrecht 2016, Published 27 October 2016.13 Kelvin F K Low, The genius of Torrens Indefeasibility Understanding The Limits Of Personal Equities 2009 33 Melbourne University Law Review 205, 206.14 Kelvin F K Low, The Nature of Torrens Indefeasibility Understanding The Limits Of Personal Equities 2009 33 Melbourne University Law Review 205, 206.15 Kelvin F K Low, The Nature of Torrens Indefeasibility Understanding The Limits Of Personal Equities 2009 33 Melbourne University Law Review 205, 206.16 Richard Wu and Mohd Yazid Bin Zu Kepli Expedition of Torrens system in the common law world and its Asian development in Singapore and Hong Kong (2012) 2 Property Law Review 99, 102.17 Richard Wu and Mohd Yazid Bin Zu Kepli Expedition of Torrens system in the common law world and its Asian developme nt in Singapore and Hong Kong (2012) 2 Property Law Review 99, 102.18 Breskvar v Wall (1971) 126 CLR 376, at 385 per Barwick CJ19 Tang Hang Wu, Beyond The Torrens Mirror A Framework of The In Personam Exception To Indefeasibility (2008) 32 Melbourne University Law Review 672, 672.20 Roy A. Woodman, The Torrens System in New South Wales One Hundred Years of Indefeasibility of Title (1970) 44 The Australian Law diary 96.21 Frazer v Walker 1967 1 AC 569.22 Lynden Griggs, In Personam, Garcia v NAB and the Torrens System Are they Reconcilable? (2001) 1(1) Queensland University of Technology Law and Justice Journal 76, 86.23 Kelvin F K Low, The Nature of Torrens Indefeasibility Understanding The Limits Of Personal Equities 2009 33 Melbourne University Law Review 206.24 The Land Transfer Act 1875, 38 39 Vict, c 87 Land Transfer Act 1897, 60 61 Vict, c 65.25 LRA 1925 s 70(1)(a).26 LRA 1925 s 70(1)(f).27 LRA 1925 s 70(1)(k).28 Smoke, Curtains and Mirrors The Production of Race Through Ti me and Title Registration, Sarah Keenan