Cross Case Analysis

To be able to look back at the preliminary hypotheses presented in § 5.2.1 we need to depict the situation in each country with regard to the technical, legal, and organizational aspects. This is done in the table in Figure 6.10.

the Netherlands Indonesia Austria Ghana

technical modern, very good scattered, inadequate modern, extremely well unclear, inadequate legal simple, good incomplete, mediocre refined, extremely well complex, mediocre organizational sound, very good unclear, inadequate cooperative, satisfactory uncooperative, inadequate trustworthiness very good,

straightforward very weak, evasions accepted by courts near perfect, at times overbearing weak, informal evasions

Figure 6.10; Qualification of aspects of the four cases

Although it was clear from the start of this study that the technical, legal, and organizational aspects are interrelated, the interrelations turn out so intense, that it is very hard to qualify the types of aspects separately and without taking the overall ‘trustworthiness’ into account. For instance the inadequacy of the Ghanaian technical aspects is to a large extent caused by the unclear practice with regard to the licensed surveyors. The fact that the regulations that ask for approval of the survey work under the deeds system are often ignored and that licenses are rarely revoked (or granted), belong primarily to the ‘daily practice vs law in books’, one of the organizational aspects. The fact that the licensing regulations put the sole responsibility for issuing and revoking licenses with the Director of Surveys is more a legal aspect that calls for improvement. Therefore for Ghana all three types of aspect are negatively influenced by this situation, as is the overall ‘trustworthiness’.

Similarly the impact of the daily practice (vs. law in books) as one of the organizational aspects, make the qualification of the organizational aspects follow the overall success of the system. From the theoretical point of view we should have the functions of the system of land registration performed by as few organizations as possible. That would mean that the qualification of the Austrian organizational aspects would be rather low. Nevertheless in daily practice it works fine, maybe even beyond what one would expect from the ‘law in books’. Obviously this means that both the organizational aspects and the overall ‘trustworthiness’ will be qualified very positively.

Two findings can be made here. Firstly the interrelations between the three types of aspects that are distinguished within this study are even stronger than expected beforehand. Secondly the distinct aspects classified here as ‘organizational aspects’ are too different to be put under one heading. At least the institutional arrangements should be seen separately from the administrative practices. Since the level of cooperation between those involved in different functions, and even tasks, clearly seems to be more important than the level at which their units have a shared head, we possibly need to differentiate between the institutional framework and the level of cooperativeness. Based on these two findings we can conclude that usefulness of trying to classify systems of land registration along the lines of their technical, legal, and organizational aspects is about as limited as using one of currently used classifications described in chapter 3.

Although the above limits the value of the hypothesis described in § 5.2.1, we will test them here. Each hypothesis is given, followed by a short analysis, ending in its acceptance or rejection.

(1) When the organizational and technical aspects are well taken care of, weak legal aspects can be overcome.

This is based on the way the situation in the Netherlands, especially as it was before 1992, is perceived. The pre 1992 situation as such was not part of the case study, but it is clear that the Dutch system of land registration reached its present state through gradual improvements, in which the legal aspects lagged behind. Good organizational aspects (with both rather unified institutional arrangements and sound administrative practices) and good technical aspects (index maps and use of technology) are very visible, whereas the (theoretical) legal weaknesses do not really play a role. But the number and severity of these (theoretical) legal weaknesses has been so reduced since 1992, that we can no longer classify the legal aspects in the Netherlands as weak. None of the other cases really relates to this hypothesis.

Purely based on the case study we can neither accept or reject the hypothesis.

But one can still read in the Dutch case study, the lesson that with good organizational aspects (both regarding institutional arrangements and administrative practices) and good technical aspects (index maps and use of technology), some (theoretical) legal weaknesses can be overcome.

(2) When the technical and legal aspects are well taken care of, bad organizational aspects will still be a great problem.

This hypothesis was beforehand based on a situation presumably to be seen in many countries, where lawyers run a purely descriptive land registry completely independent of (land) surveying activities, e.g. for the (fiscal) cadastre. No country really matching this profile was studied as one of the cases. A cadastre in the Napoleonic sense is only present in the cases of the Netherlands and Austria. In the Netherlands the organizational aspects are better taken care of than the legal ones, so it does not match this profile. Austria does have a system with very good technical and legal aspects, and overall has a well running system. If one would limit the organizational aspects to the number of organizations involved, Austria would score badly on that, thus rejecting the hypothesis. But when the

organizational aspects focus on the level of cooperation and/or the administrative practices Austria scores well on these, and no longer relates to this hypothesis.

Purely based on the case study we can neither accept or reject the hypothesis.

One can read the lesson in the Austrian case study, that with good levels of cooperation and sound administrative practices the number of organizations involved is no real issue. (3) When the legal and organizational aspects are well taken care of, bad technical

aspects can be overcome.

This hypothesis was beforehand based on the situation in many Anglo-Saxon and Commonwealth countries, where often no coherent cadastral mapping exists (except for England and Wales where coherent topographic mapping is used), and still the legal protection can be regarded as well taken care of with the legally sound Torrens-system. None of the countries studied turned out to really match this profile. In Ghana, being part of the commonwealth, only almost 10,000 titles had been issued under the relatively new title registration system, which even has its legal and organizational weaknesses. When implemented according to the law this system should include a good index map (the registry map). The Indonesian system of land registration is regularly called a ‘modified Torrens system’. But in addition to several legal and organizational weaknesses, the lack of index mapping for parcels which were brought sporadically onto the register has caused serious problems with ‘floating’ parcels.

Purely based on the case study we can neither accept or reject the hypothesis.

One can read the lesson in the Indonesian case study, as well as in the Ghanaian one, that good index mapping, even with limited surveying accuracy, is essential when introducing a system through sporadic adjudication.

(4) Whereas flaws in technical or legal aspects can be overcome when the other two aspects are well taken care of, flaws regarding organizational aspects will quickly render the land registration inadequate.

The fourth hypothesis comes from combining the previous three hypotheses, from which we could not draw clear conclusions based on the case study.

Based on the case study we can neither accept or reject the hypothesis.

We could repeat the lessons that good cooperation between persons and organizations involved (an organizational aspect) and good index mapping (a technical aspect) are important from the previous hypotheses. From the case study as a whole the importance of getting all transfers into the system through having enough incentives (mainly a legal aspect) and having not too many disincentives (related to both organizational and legal aspects) can be added. These lessons combined include all three types of aspects and would seem to support the view that to a certain level all three types of aspects have to be tackled adequately to have a well functioning system of land registration.