RS Lastarria-Cornhiel - Barnes (Peru): Chapter 6 c

This part of the Operational Procedures section will deal directly with the registration process as organized and practiced by the Registro Predial in the Region of Lima.

Since the Registro Predial is a registry that operates in parallel with the existing Registro de Propiedad Inmueble, it is important that there are clear legal and geographical jurisdictional boundaries between the two systems. Any overlap in jurisdiction can lead to duplication in landownership (i.e., different owners with valid registrations in separate registries), resulting in a decrease in tenure security. Although there are some reports of duplication, this does not appear to be a significant problem.

The legal jurisdiction of the Registro Predial is defined by law (see discussion on legislation DL 495 and DL 667, Section V, A & D), and in practice the Registro Predial extends its geographic (or spatial) jurisdiction by declaring an area under its jurisdiction. This means that once land in a certain area (for example, an agricultural valley or a Pueblo Joven) is declared to be within the jurisdiction of the Registro Predial, all properties already registered in the Registro de Propiedad Inmueble are to be transmitted to the Registro Predial and all subsequent transactions must be processed through the Registro Predial. The criteria for selecting which areas are to be included in the new Registry have changed over its five-year lifetime. Initially (1989-90), the Registro Predial worked only in urban areas around the City of Lima focusing on the surrounding informal settlements (Pueblos Jóvenes). In these cases, the geographical jurisdiction of the Registro Predial expanded settlement-by-settlement.

In 1993 Japanese development funds (administered by the World Bank and funneled through the ILD) financed a pilot project to expand the Registro Predial to additional urban areas as well as to certain rural properties in the Region of Lima. In many cases these rural properties were ex-cooperatives which had been parcelized and priority was given to those areas where landholders already had title and were registered in the Registro de Propiedad Inmueble (see Graphs 2 and 3).

The existence of well-defined tracts of land, either rural cooperatives or informal urban settlements, which contain many parcels for which titles are already in hand or easily obtained, has allowed the Registro Predial to quickly register many properties and to rapidly expand its geographical jurisdictional expansion with the Lima region.

The success of a titling and registration project depends to a large degree on the promotion that precedes the fieldwork and continues through the active life of the project. Promotion may take many forms (newspaper, radio, TV, etc.), but the primary method used by the ILD in Peru has been to work through local community groups. The promotional activity was most intense during the 1993-94 Japanese-funded pilot project. This activity has since ceased and we saw no evidence of promotional activities during our visit. Box 2 is a description, as related to this assessment team, of how the ILD and Registro Predial conducted their promotional campaigns in the rural sector under this pilot project.

Box 2: Titling & Registration Campaign in Palpa

The ILD staff together with the Registro Predial started its promotional campaign to register agricultural land in the Palpa valley in August 1993. The promotion team searched out the agricultural leaders throughout the valley asking them to bring together all the small farmers in the valley for a meeting. They told the leaders and the farmers that the valley of Palpa was now under the jurisdiction of the Registro Predial and that they were going to title and register all parcels in the valley. In practice, however, the ILD campaign targeted the easiest properties to register, the parceled cooperatives. Many of the parceleros had title document and were already registered in the Registro de Propiedad Inmueble. The registrations of these properties were transmitted in bulk to the Registro Predial. Out of the 26 cooperatives in the valley, 7 were registered in the Registro Predial very quickly because there were no problems with their documentation. At present four cooperatives are still in the process of being registered.

The president of the Farmers Association in Palpa stated that the Registro Predial has not worked with other small farmers in the valley to regularize their documents. Some farmers had other types of title documents (not titles given out by the cooperatives), and some temporary workers had Possession Certificates to cooperative land. These farmers were ignored during the 1993-94 titling and registration campaign when Registro Predial staff were physically in the valley. Once the pilot project was over, the staff withdrew from the valley and currently any registration transactions must be done in the Lima city office.

There are many different types of transactions that enter the Registro Predial and the application requirements differ a little in each case. One of the key instruments that has been used to simplify and standardize all transactions entering the Registro Predial is the use of registry forms. These standardized forms replace the escritura pública (deed), used in the Registro de Propiedad Inmueble, which must be drawn up by a notary. Five different forms have been developed which cover all major transactions. The following forms are used (with the applicable transactions shown in parentheses):

Form A must accompany all transactions except simple consolidations and subdivisions not involving transfer of ownership.

All forms, including Form A, must be signed by a lawyer or notary who certifies that:

The lawyer or notary also certifies to the veracity of the data contained in the form and the accompanying documents, the capacity of the involved parties, and the fulfillment of the pertinent legal norms. The possibility of using a lawyer in this capacity is an innovation of the Registro Predial, for only appointed notaries are allowed to fulfill this role in the Registro de Propiedad Inmueble. Understandably, there is some opposition (on the part of the notaries) to this move, but the extent and strength of the political pressure exerted by the notaries is unclear.

The property modification form and the registration of lots and/or buildings form must be signed by a civil engineer, agronomist, agricultural engineer or architect who verifies that the data in the form correspond to the reality in the field (Law 495, Art. 12). This person also verifies that subdivided parcels are not less than the housing code minimum for dwelling or the agricultural parcel minimum as established by law.

One of the claimed advantages of the Registro Predial over the traditional system is the existence of a cadastre in the former, even though it does not in fact exist. Some cadastral information (e.g., perimeter and subdivision plans) is being computerized within the Informatics Department of the Registro Predial, but there is no cadastre supporting the registry data. There is also cadastral information (but no cadastre) in the Registro de Propiedad Inmueble and in the Ministry of Agriculture's PETT for some rural properties. It is unclear who will be responsible for managing cadastral information and maintaining the cadastre in the long term.

It is useful to review the attributes of a cadastre in order to reveal the shortfalls in the current cadastral arrangements. McLaughlin (1975, p. 60) defined a cadastre as follows:

The cadastre is therefore a comprehensive system of records which is by definition integrated with the land registration system. The cadastre can be regarded as that part of the system which defines the spatial dimensions (where? how much?) of land rights, whereas the land registration system deals with the nature and the holders of land rights (who? what?). If these two subsystems are not connected, it becomes impossible to maintain the currency of the records. While the Registro Predial holds the potential to house and operate the two subsystems together, the cadastral component has not yet developed to the point where it is an integral part of the registry database.

Latin America has a long tradition of describing land parcels by referring to adjoining owners or parcels in an alphanumeric form, typically included in wordy deeds. In countries with a history of using a cadastre, the practice has been to simply refer to the relevant map to obtain spatial information. In other words, practitioners make use of a graphic depiction of the property to describe it. We believe that spatial information is more readily and more clearly described in a graphic form and, provided the cadastral data are available, should be used as a basis for describing parcels. Currently in the Registro Predial, the traditional practice of retaining alphanumeric descriptions is being continued, albeit in a more summarized fashion. This is not only difficult to maintain over time as changes occur due to parcel divisions and consolidations, but challenges the role of the cadastre as the descriptor of property parcels.

The requirement that the Registry agencies provide PETT with documentation (copies of plans) of new registrations to update their cadastral records (DL 667, Arts. 17, 18) is not being fulfilled. If PETT is accepted as the rural cadastre agency (this is arguable), then this inaction is leading to a lack of consistency between the cadastral information in the Registro Predial and in PETT. Some Registro Predial personnel feel that the registry should maintain the cadastre. The lack of enthusiasm for the Registro Predial within PETT may be explained by their perception that the Registro Predial is laying claim to what they perceive as their domain (the cadastre).

Apparently the cadastral code at PETT, which should be a unique identifier for each parcel in the country, is not being strictly allocated on a parcel basis. For example, the same cadastral code is being given for parcels held by the same owner. We received such information after our visit to Peru, so were unable to confirm it. If this is indeed true, then the implication is that the system is reverting once again to a person-based system as opposed to one based on parcels. Since parcel identifiers are literally the key to managing a parcel-based system, this practice will eventually lead to problems with the management of the registry and cadastral information and with linking the two subsystems.

We were unable to assess the quality of the cadastral plans in the Ministry of Agriculture, but received unfavorable comments from rural community leaders as well as from a cadastral consultant working in Peru. Apparently, some of these plans were based on visual inspections and sketch plans which did not truly represent the shapes or sizes of rural parcels. The verification process built into the registration requirements is also based only on a visual inspection and cannot be regarded as a cadastral survey. In principle, the verification process is designed to check that the plan adequately represents the field reality. It is questionable whether this is possible in rural areas without at least some measurement.

The Graphics Section of the Informatics Department is currently computerizing paper cadastral plans. This is done by manual digitizing as well as through the use of coordinate geometry (CoGo). Where possible, they make use of the dimensions given on the plans. The fact that two 486 personal computers and two trained individuals are dedicated to this work seems to indicate that it is a relatively high priority in the Registro Predial. No general index map is kept of what has been digitized or what is planned, though a record book of work completed is maintained. There is also no technical manual defining the procedures to be followed.

In general, the approach seems to be one that relies entirely on the software available, and the personnel in the Graphics Section appeared to be weak on such fundamental topics as coordinate systems and map projections. There also does not seem to be any strategic plan or conceptual design for the integration of the textual registry data and the graphic data from the cadastral plans. Everyone in the Registro Predial recognizes this weakness and is in favor of integrating these two databases and creating a cadastre.

Figure 3 provides a generalized view of the property registration process for all major transactions. In order to understand the details behind these generalizations, it is necessary to distinguish both between urban and rural transactions and between ownership rights and possession rights as well as to examine the different requirements within these different contexts. This section also describes the situation of those properties that were initially registered in the Registro de Propiedad Inmueble and which were simply transmitted to the Registro Predial.

Both possession rights and full ownership rights can be registered in the Registro Predial. Possession rights can be registered only on those urban lots (and buildings on the lots) which are located in Pueblos Jóvenes and which are in the process of being recognized and titled by the provincial municipality. In other words, the registration of possession rights is viewed as a temporary stage until full ownership rights are titled and subsequently registered. Although much of the earlier focus in the development of the Registro Predial was on the registration of possession rights, this has not been a popular option and registration of these rights has been negligible.

Applications for the initial registration of ownership rights to land and buildings must be accompanied by a title and the relevant registry forms. The registry forms must be signed by a registered (colegiado) verifier who confirms that the information on the forms is valid. Applications for possession rights also require supporting documentation, but further details on these are largely irrelevant given the infrequency of such applications.

Registry forms (see Annex 1) were specifically designed to simplify and facilitate the registration process in the Registro Predial. These forms contain general geographic and location information (region, province, district, settlement, sector, group, block, and lot name), street address, cadastral code, area, adjoining properties, building characteristics (number of floors, roofed area, building code, etc.), date of construction, and name of landowner.

When the applicant does not have a certificate of possession from the municipality, alternative documentation showing evidence of possession may be presented.

Possession rights registered in the Registro Predial may be used as collateral for a popular mortgage (hipoteca popular) (Art. 27). The term common mortgage (hipoteca común) is used for mortgages based on full property rights. Under the popular mortgage system a mandator (mandatorio) is named in order to handle the sale of the property in the event that the borrower fails to repay his / her loan.

The specific application requirements for each of the different registration cases (see Section V, D) are listed in DL 667 (Arts. 6-16). In general, a Registry Form signed by the competent authority (lawyer or notary) must be presented to the Registro Predial. Usually this must be accompanied by copies of supporting documents such as titles, resolutions, etc.

When the claims are based on possession, evidence of the use of the parcel for a period of at least 5 years is required to support the application. If the possession is on state-owned land, then the applicant must have worked the land and possessed it in a direct, continuous, peaceful, and public manner for a period of at least one year prior to the application (DL 667, Art. 20). In the case of private land the possession period is raised to at least 5 years. The time defined for adverse possession in the Civil Code is 10 years, but this may vary between 2 to 10 years depending on circumstances (Civil Code, Art. 2001).

The Registro Predial is required to notify all adjoining property owners (by mail) within a period of 30 days that an application has been received to register possession rights over a parcel. In addition, they are required to publicize this through a local newspaper. If no challenges or opposition to this possession is received within a period of 30 days (from the first day of publication), the Registro Predial will automatically register full ownership rights to the parcel in the name of the possessor (DL 667, Art. 23). This means that a possessor can acquire full ownership rights by adverse possession [FN 20] (uso capeon) in a minimum period of 5 years and 30 days.

Procedures are also included in the law to deal with adverse possession over parts of a parcel (DL 667, Art. 25). Challenges to such prescriptive claims are transmitted to a Land Judge (Juez de Tierras), who deals with this through a judicial procedure culminating in a resolution. The resolution is sent to the Registro Predial where the possession rights are either transformed into full ownership rights (if the challenge is unfounded) or canceled (if challenge is successful).

In general, the following information must be presented to the registry for rural land parcels:

c. Registration Transmittals from Registro de Propiedad Inmueble to Registro Predial

As the Registro Predial expanded its geographical jurisdiction within the Lima region, it initially focused on registering those properties that had already been registered in the Registro de Propiedad Inmueble. During its promotional campaigns, it encouraged property owners to request that the Registro de Propiedad Inmueble transmit their registrations to the Registro Predial.

On the one hand, targeting already titled and even registered properties rapidly incremented the volume of registrations in the Registro Predial. On the other hand, some problems were encountered. For example, in some cases the information on registered settlement plans was not consistent with the information on the registered title. When this information is transmitted to the Registro Predial for registration, these problems are identified by their checking procedures. These problems are sometimes significant, particularly if new plans have to be drawn up. Since the families in the Pueblo Joven have already paid once for the defective plans, they are naturally reluctant to pay again.

Since the Registro Predial is computerized, summary statistics indicating the types and levels of activity can be extracted from the relevant databases. We were provided with a full set of statistics for the period 1 January 1990 to 15 March 1995. The statistics were divided into three sets since the data in the computer are separated into the three zones of operation (South, Central, North). Within each set, a full listing of all transactions was reported on an annual basis. Each listing included the alphanumeric transaction code (e.g., I0301, T1004), the type of transaction (e.g., Inscripción Derecho Propiedad de Lote, Traslado de Hipoteca Común), and the number of registrations for transaction type over the whole year. Because the statistics for 1995 were limited to the only two and a half months, these were excluded from the analysis.

The first letter in the transaction code indicates whether the transaction relates to rural areas, urban areas, transmittances from the traditional registry to the Registro Predial, judicial decrees, cancellations, and rectifications. Graph 1 shows the total number of all types of transactions on an annual basis from 1990 to 1994. A total number of 51,363 transactions were registered over this period, with most (62%) activity in 1990 and 1993. The high level of activity in 1990 was generated by the first pilot project which focused almost exclusively on registering property rights in Metropolitan Lima. This urban focus is further illustrated in Graphs 1 and 2 which show initial registration of properties in urban and rural areas, respectively. Of the 12,595 initial registrations in 1990, approximately 98% were in urban areas around the City of Lima.

Graphs 1, 2 and 3 show a lull in registration activity over the period 1991-92 with slightly less than 8,400 total transactions. This was primarily due to a change in political administration marking the beginning of the Fujimori presidency. Economic reforms introduced by the new administration placed severe restraints on budgetary support for the Registro Predial, with the result that several key staff members resigned.

In late 1992, a second pilot project funded by the Japanese government (administered by the World Bank) was initiated prompting renewed activity visible on the graphs for 1993 and, to some extent, 1994. While the majority of transactions were still located in the urban areas, the pilot project was extended to rural areas to the north and south of Metropolitan Lima. In these rural areas the project focused on agrarian reform land which had already been titled. Graph 3 shows that 57% of rural properties registered in 1993 were already titled and registered in the Registro de Propiedad Inmueble. In these cases the title documents were transmitted from the Registro de Propiedad Inmueble to the Registro Predial. A similar pattern can be observed for 1994 with the majority of initial registrations being based on transmittances from the traditional registry. While these transmittances were also done for urban areas, they were not nearly as widespread, constituting only about 11% of initial property registrations in the period 1993-94. This indicates a continued focus on unregistered urban lots typically found in the Pueblos Jóvenes around Lima.

Graph 4 shows the number of property sales (compraventas) per year that were registered in the Registro Predial. This reflects property market dynamics for the years 1990-94. Not surprisingly, the large majority of registered sales (69%) are in urban areas. Activity has increased from a mere 5 registered sales in 1990 to a peak of 1,315 in 1993 to a total of just over a thousand in 1994. Graph 5 shows the number of common mortgages (as opposed to popular mortgages) per year for the period 1990-94. It reflects a similar trend to that shown in Graph 3. A portion of these mortgages (20%) were mortgages that had already been registered in the traditional registry and were subsequently transmitted to the Registro Predial.

The statistics obtained from the Registro Predial databases and summarized in these five graphs appears to be inconsistent with the ILD claim that over 150,000 properties have been registered over the first three-and-a-half years of the Registro Predial's existence. This significant difference is most likely due to how "registration of a parcel" is defined. As the discussion on the titling and registration processes (see Section VI, A & B) explained, when a Pueblo Joven or agricultural cooperative begins the titling process, a perimeter plan (showing the boundaries of the Pueblo Joven or cooperative) and a subdivision plan (showing the individual parcels within the perimeter) are submitted to the titling agency for approval. As part of the registration process, these plans are also submitted and registered in the Registro Predial. At that time, each parcel is given a "generated parcel code" (código de predio generado), whether or not that parcel is ever titled to a property owner or registered by the owner. The ILD apparently includes as registration transactions the assigning of these generated parcel codes to pieces of land. The Registro Predial database, on the other hand, apparently counts as registration of property rights only those properties which have been actually registered to a property owner.

While we have no reason to question the veracity of the ILD statistics, it is important to understand that different levels of formalization exist. When comparing the experience and results in Peru with those in other countries, it is essential to examine the starting and ending points of the formalization process in each case. In particular, do the processes include adjudication (saneamiento), titling, and registration or only one of these formalization processes.

Information in the Registro Predial for the Lima region is organized according to the geographic zone in which the parcel is situated. The three zones are North, East/Central, and South, and the staff as well as the supporting hardware is divided along these lines. Two independent local area networks (LAN) support the computerization functions within the Lima office, one for the south zone and one for the north and east zones (see Figure 4). Each LAN is supported by a server which deals with the data storage, file handling, and processing. The system makes use of a UNIX operating system. The Informatics Department of the Registro Predial also has a few additional computers dedicated to system administration and development.

The software used to enter and manage the registry data, known as Regis-P, was initially developed by the ILD. The earliest version of Regis-P was DOS-based, but it was subsequently converted to UNIX. Regis-P is built as a shell around a database management system called FoxBase. It provides a user-friendly interface in the form of a series of menus which allow the registry staff to enter all the data directly. Regis-P has evolved over time through in-house improvements implemented by personnel in the Informatics Department of the Registro Predial and presently appears to work effectively. On-the-job training is used to teach the software to new registry staff. Other computer peripherals on these two networks include printers (large and small) and back-up tape drives as shown in Figure 4. Each tape stores approximately 525 megabytes. Back-ups are made on a daily, weekly, and monthly basis and a security copy of the weekly back-up is kept in a local bank.

It should be clear from the above description that the Registro Predial does not issue titles nor does it issue copies of titles. The registry forms that have been designed are also meant to circumvent the need for complicated deeds. Part of the design of any registry must address the issue of what documents or certificates are to be issued by the registry office in response to users who require information on a particular parcel. In a purely manual system it is conventional to duplicate the documents that had entered the registry office, but where the system is completely computerized, it is the data in the database that are most important. Furthermore, the computerized database allows for efficient searches and compilation of relevant data on a parcel or person basis. The Registro Predial in Peru makes use of two types of certificates for reporting on data in their digital archives.

The first type of certificate is called a constancia, which literally translates to documentary proof. An example of this certificate is given in Annex 2. Generally, a constancia is issued when a user requires only a short summary of the tenure status of a parcel. The information reflected on the constancia includes the name(s) of the current owner(s), parcel information (parcel number, cadastral unit, administrative location), and number of the title along with when it was registered.

When a user requires a more detailed description of the tenure history of a particular parcel, this is provided via a copia literal. This includes a description for every transaction that has affected the parcel and which has been computerized. A sample of this document is given in Annex 2.

This historical record is a transaction-by-transaction account, moving from the oldest to the most recent transaction (asiento). In addition to the information contained in the constancia, the copia literal also contains details on the adjoining properties, all background documents and their numbers, a written summary of the description, and any other data that are recorded against that parcel (e.g., mortgage value).