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Тексты для самостоятельного изучения

Текст 1

Land tenure

The way in which rights in land are held is called “tenure”. In many countries the absolute owner of all land is the State or Head of State but for all normal purposes two common forms of tenure can be identified: freehold and leasehold.

Freehold means that the owner can do what he or she likes with the land, for example in the way of disposal, subject to any restrictive covenants and the various planning regulations that are imposed by statute with regard to the use of the land. Freehold is not absolute since the State retains the right to acquire land in the public interest, for instance for building new housing or motorways.

Leasehold means that the freehold owner, who in some cases may be the State, has relinquished most of the rights in the land for a set period of time such as 99 years during which the leasehold owner has the use of the land or property but at the end of which the title returns to the freehold owner.

Many countries operate similar land tenure systems though some do not recognize leasehold and rely on rental agreements to control the short-term use of the land.

Not all rights are written down. A title is generally subject to statutory restrictions, such’ as development control regulations that are imposed by the local municipality but which do not appear on any certificate of title. The title may also be subject to customary laws and overriding interests that likewise are not written down.

Текст 2

Central valuation agencies

In many countries there is a central valuation authority responsible for administering government valuations and, where such exists, the fiscal cadastre. Such an authority is usually under the control of the Ministry of Finance but has its own administrative structure and terms of reference. A central valuation authority should provide a comprehensive land valuation service both to departments of central Government and to local authorities and advise Government on matters affecting the value of land. It should carry out realestate valuations where appropriate, for instance for:

-Land and property taxation;

-Calculating compensation to be paid where land is acquired for public purposes either by compulsory purchase or by agreement;

-Determining compensation for any adverse consequences of planning decisions; and -Fixing the rent on government-owned property.

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Most countries in transition have had cadastral systems that focused primarily on landuse data. Most do not yet have a central valuation authority, one reason having been the lack of qualified manpower capable of undertaking valuations. Initially, valuations were undertaken by people who were untrained or inexperienced in the workings of a land market. A number of bilateral aid programmes have addressed this problem and most countries are now developing the necessary skills in methods of valuation. Often how-ever these skills are at present outside the

cadastre, where the main focus has been towards computerization.

Computerization of the processes of valuation has many advantages, since much of the data tends to be uniform in character, requiring repetitive processing and often quite complex analysis. Computers may be used in the creation and maintenance of valuation databases, to analyse price and cost data, to determine general market trends, to carry out investment and statistical analysis and to maintain departmental accounts and other records. The use of computers should lead to improvements in the levels of performance and service provided by an assessing office, particularly with regard to the accuracy and speed with which valuations can be undertaken. They should reduce clerical costs and eventually reduce the unit cost of an appraisal or assessment. More efficient scheduling of the workload of each assessor should become possible and more and better information should be available for decision-making and overall administrative control.

There is some advantage in setting up a central valuation agency either within the cadastral authority or else in close cooperation with it in order to ensure:

-A uniform application of laws and standards;

-Greater economy, by the reduction in the duplication of records, staff and effort;

-Greater potential for individuals to develop skills in specialized areas such as valuing plant and machinery, agricultural land, or mining sites;

-The opportunity especially through computerization to coordinate large volumes of land sales data;

-The monitoring of land sales to detect land speculation or to identify social or economic changes that are reflected in the land market data.

Текст 3

Cadastral surveying

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In order to be able to guarantee the accuracy of boundary surveys and to apply quality controls to the work of the cadastral surveyor, it is common for survey regulations to be introduced. These often prescribe the manner in which surveys are to be carried out as well as the standards that must be reached. Survey regulations may also prescribe the necessary qualifications for grant of a licence to undertake cadastral surveys.

While in almost all other areas of land surveying it is not necessary to have a licence, in cadastral surveying it is common to find that before any persons in the private sector can conduct a

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survey they must be registered as competent to do so. The test of competence may be organized by a professional association of surveyors or by the State, depending on the traditions within any individual country. Regulations governing licensing normally apply to individual cadastral surveyors and not to survey companies.

In some countries survey regulations have not permitted the use of aerial survey techniques. The methods of survey are prescribed in regulations while the final standard of the product is not defined. Ideally, the law should interfere as little as possible in the choice of method of survey to be used. It should focus on the product rather than the process and should:

-Define the relationship between physical and legal boundaries;

-Permit flexibility in reconciling the possession of land with its ownership;

-Include legislation to protect officially emplaced survey monuments from damage and to provide rights of access to surveyors so that they can make full use of these monuments;

-Prescribe who may carry out cadastral surveys, prescribing qualifications for individual surveyors, for companies, and for institutions;

-Indicate acceptable survey standards without prescribing the methods whereby these must be

achieved.

From a legal perspective it is necessary to prescribe the qualifications of those who may conduct cadastral surveys. It is also necessary to establish the legal liability of the surveyor for work undertaken and for the consequences in the short and the long term of any errors in measurement. In many countries the State guarantees the quality of work as far as the general public is concerned but may reserve the right to sue the surveyor in cases of negligence. Sometimes the responsibility remains forever with the surveyor. In either case, the licensed surveyor should hold professional indemnity assurance to protect the ordinary landowner. Clear contractual relationships need to exist between the surveyors and their clients, whether the latter are private citizens or the State.

The definition of legal liability is important, since quality control is more cost-effective when it is undertaken by sampling. Since this implies the risk of missing incorrect data, the level of risk and consequences of mistakes must be clear in order to prevent expensive, unnecessary and time-consuming checking of surveys.

Текст 4

Land tenure

The literature on land registration generally focuses on property or the set of rights people have with respect to the land. Unfortunately the term property is often equated with private property, thus limiting the understanding of other interests such as community rights, rights recognized by custom, restrictions, and obligations people have with respect to the land. In this work the term land tenure is used to include private property arrangements but also other interests with significance to land management.

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According to MacPherson, property is a set of enforceable rights, held by individuals, to the use or benefit of some object. As an institution, property comprises established, legally recognized relationships among people that govern their behavior with respect to the resources they control as a community. Individuals may include quasi or artificial persons that act as individuals, such as married couples, corporations, co-operatives, aboriginal groups, or governments.

The role of a property system is to define who will be included in or excluded from the enjoyment of resources and what conditions will apply. Property roles establish a framework for allocating scarce resources and for enforcing nonviolent solutions when these claims are in competition or are perceived as inequitable. As summarized by Ackerman, ",..the law of property considers the way rights to use things may be parceled out amongst a host of competing resource users." He adds that "..the ways in which user rights may be legally packaged and distributed are wondrously diverse".

Land has unique characteristics that make it a fundamental object of property in every society. Since it is an essential element in most human activities, land has value (economic and cultural) and is subject to claims for exclusive control by individuals and groups. Land is also immovable and in theory indestructible, enabling a successful claimant to actually recover the lost property object rather than only receive compensation for damages. To reflect this real action of recovery, the common law classifies land as real property.

The land itself is not property; property is the set of rights in land, enforceable either through custom or law. In common law the rights and interests held by an individual are called an estate; tide refers to the legal relationship between the holder and the estate. Classifications of these estates, such as freehold and leasehold, are derived from the feudal system of land holding in England. Property interests and estates in land are also classified as being either legal (protected by law) or equitable (traditionally protected only by the courts of equity). This distinction is still important in many common law Jurisdictions when determining the effect of interests in land and sometimes how they are recorded. But the question of whether an estate is equitable or legal is specific to the land law (including law reforms) of the jurisdiction.

Текст 5

Property systems

Property systems describe how the relationships among people with respect to the land are defined and enforced. Specific property systems reflect cultural traditions and the dominant

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values in a society and thus often favor specific groups based on such criteria as race, gender, and social class. Property is therefore a political as well as a legal institution.

In describing property systems, three general classes of relationships can be distinguished: private property - where an individual has the right to exclude all other individuals from the

use or benefit of land:

common property - where, by membership in a group, individuals have the right not to be excluded (e.g., communes, public highways, certain condominium areas);

state property — which is private property held by the state as an artificial person or corporation, although lesser interests may be allocated to others (e.g.. Crown and municipal lands).

No society has a pure system of private property in land and even in systems where all land is held by the state, some private and common rights (however limited) will exist. Or as Runge explains:

... it is possible to identify a rather wide continuum of., property institutions operating in the real world. These institutions are composed of a mixture of rights to exclude and be included. At one end are the cases in which each individual has a full right to exclude others from everything he or she owns -pure private property. At the other end are cases of purely common property, in which each has a full right to be included in particular resources. In reality, we seldom see property rights defined over resources which do not have some blend of these exclusionary and inclusionary characteristics.

Among the roles or functions of property systems are the following:

- allocation of access to land resources, and thus access to power, status, and wealth, within

society;

allocation of scarce resources among competing uses, including present and future

uses;

-provision of incentives to individuals to invest in improving land, by granting control and

ensuring security;

-reduction of bureaucratic decision-making and adjudication and the associated costs, through

delegation of all or part of the rights to individuals and smaller groups of individuals.

Property is a dynamic institution, and today systems in many parts of the world are undergoing significant change. Where full exclusive individual rights have predominated, environmental issues are beginning to demonstrate the need to protect community rights as well. At the same time, exclusive rights are now being defined for resources that were once considered

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common property (e.g., ocean resources, ground water, and even in a limited way, the air). In many nations, equity issues are forcing changes in how rights are distributed. Economic and environmental problems related to common property systems in Eastern Europe are causing major reforms, a situation indirectly predicted by Hardin in his article entitled "The Tragedy of the Commons." Part of the impact of these and other changes is the need to revise how and what rights are recorded and protected.

Текст 6

Parcel delimitation

Parcel or boundary delimitation provides the documentation and/or description of the parcel. A parcel is a three dimensional unit of space to which a unique set of homogeneous interests apply although in most cases only two dimensions are considered. In practice the term parcel is only used to define rights, but in this thesis the term is also applied to define the land units affected by such restrictions as land use regulations. Similarly cadastral mapping is generally only used to describe maps of freehold tenure or surface land ownership. But in this thesis, cadastral map is used to describe any graphical index or inventory of interests in land. Thus even a zoning map is a form of a cadastral map since it shows units of land to which restrictions apply.

Delimitation includes three related processes: definition, delineation, and demarcation. Definition is the process of describing the locus of the boundary (e.g., high water mark, in cardinal directions specific distances as in mining claim regulations, 20 metres from the centreline of the highway). Demarcation is the physical documentation of the boundary and provides actual notice of the boundary location. Delineation is the description of the boundary location in words (e.g., a description by metes and bounds) or by depicting the boundaries graphically on a plan, map, chart, or other visual display.

Which of these processes are involved for a particular parcel will depend upon the type of land tenure system, including laws and regulations for specific types of interests. In some cases field surveys will be conducted to assess evidence of the boundary location and their relation to other features (e.g., buildings, highways, or rights-of-way). In others, parcel boundaries are only delineated on maps (e.g., topographic map, cadastral map) or in diagram form.

There are various systems for parcel and boundary delimitation and they are most often classified as general or fixed boundary systems. General boundaries are those in which the precise location is left undescribed and the bounds are usually, but not always, marked by a physical feature that is then shown in a diagram or on a map. So-called fixed boundaries are more precisely

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delineated and are usually marked with some form of survey monument. But this distinction can be misleading. Dale and McLaughlin provide a more useful classification in which boundary systems and parcel delimitation are distinguished by the degree of precision (general or specific) and by how their location is referenced (e.g., physical features, monuments, or co-ordinate values).

Parcel delimitation spans a range of activities from field surveys to mapping and writing descriptions. The variations in jurisdictions are great and affect the information collected, the survey methods and precision, and the examination and recording of the information. The parcel delimitation process may include:

-collection and evaluation of evidence of the parcel boundaries (this nay include instructions as to how the parcel is to be located or subdivided, descriptions of adjacent parcels and the parcel of interest, and collection of field evidence);

-measurement, sometimes including measurement of land use and physical features;

-documentation, including the establishment of any witness monuments;

-preparation of a field plan, final plan, and/or a diagram showing parcel size, shape, and location (usually specific dimensions are shown);

-preparation of a written description;

-verification and certification of the information by the surveyor and/or a public officer;

-distribution, filing, registration of plans (this may be private or public);

-updating the cadastral map from the plan, diagram, or description.

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Текст 7

Cadastral surveying and mapping

At their simplest level, cadastral surveys are concerned with setting out and recording the turning-points or comers along property boundaries. A variety of techniques may be used, each having its own inherent accuracy and cost. The necessary and sufficient accuracy that is needed for any survey depends on the purposes for which that survey is conducted. When the accuracy is defined, different methods of achieving it can be considered. If the cadastre is to achieve its aim of being a support for land management and possibly land taxation, it should be established according to the same general principles throughout the whole country. This does not however mean that all areas must be surveyed to the same precision, since the requirements will be different in different areas of the country. In cities a precision of between 0.1 and 0.3 metres may be required while in rural areas 1 to 3 metres may be sufficient. In some areas, for instance where the land must be registered as speedily as possible in order to meet social and economic objectives, lower precision may be required in order to permit the use of more rapid survey techniques. If the monuments that delimit the boundaries are suitable and relatively permanent, the

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