Tuesday, June 8, 2010

Of Executors and Land Transmissions - Incompetence and Fraud

Ownership of Land is a serious matter. In a country like Seychelles, where land is scarce, to own land is now clearly a privilege rather than a right. The days of purchasing land from private owners at reasonable prices are virtually extinct. Landowners only want to sell for top dollars, whilst purchasers have all become wiser and are refusing to purchase at the exaggerated asking prices. The word is that the golden age of selling land at incredibly high prices are long gone, it's just that several land owners don't get it yet.

The average Seychellois cannot afford to purchase land from private owners and in general one must be very needy or very well off (or well connected) to purchase state land, which is generally sold at reasonable prices. As such, the hard working middle class feels hard done by and many leave the country in search of pastures... it doesn't have to be greener pastures just so long as it's not barren.

But there is another route to own land, and it is a route that is becoming more popular. And this is through fraud or "incredibly-gross-incompetence-that-it's-very-difficult-to-believe-that- it's-not-fraud" (henceforth referred to as "the Scheme"). This new Scheme that is sweeping the nation works due to the lack of efficiency in the law and the lack of diligence or integrity in those involved in the process. It all has to do with preventing heirs from inheriting land.

The normal process: Let's say that Philippe dies, living behind 3 children as his heirs: Andy, Bobby and Chloros. According to Seychelles law, each heir would take 1/3 of Philippe's estate. Philippe's estate can be transmitted to his heirs through the appointment of an executor who would handle the formalities of transferring the land (or the proceeds of sale, if the heirs so consent to selling the land) to the lawful heirs or through the filing of an affidavit of transmission. 

The Scheme: There are 2 methods. Method No. 1 is through the Appointment of Executor process. One of the heirs would petition the court to appoint themselves as the sole Executor. In our example, let's say that it's Andy. Andy would represent to the court, through a sworn affidavit, that he is the only living heir or that he has obtained the consent of all the other heirs (when in fact he may have obtained the consent of some of the heirs and he has excluded other heirs from the process - either unknowingly or deliberately). The court then appoints Andy as the Executor and he then transfers the land to himself or sells it off to third parties and pockets all the proceeds. We cannot really blame the court here because the court takes the evidence of a sworn affidavit as given. There are 2 problems here: (i) No one gets seems to get punished in Seychelles for swearing false affidavits - where the penalty can be several years in prison. This tempts many to swear false affidavits knowing that they are likely to get away with the consequences of so swearing; (ii) Where the application is filed by an attorney, as in most cases, he has a duty to ensure that he does not deceive the court, he should therefore conduct reasonable inquiries - such as running the deceased name by the Civil Status, which can reveal the existence of other heirs, instead of simply taking the word of his client. As a result, the attorney may have filed an application without informing/adding all the heirs to the case... unknowingly or deliberately deceiving the court and in the process facilitating the commission of a great crime - fraud.

Method No. 2 has to do with the filing of an affidavit of transmission at the Land Registry. There is no need to go through the courts here. Given certain circumstances, an heir may simply swear an affidavit, which exhibits all birth and death certificates of the landowner and all the heirs. The Land Registrar will then transfer the land onto the heir(s). And if the person who filed the affidavit claim to be the only living heir... so be it, thereafter he may sell off the land and pocket the proceeds. Again, the Land Registrar takes the evidence in the affidavit of transmission as given. But birth and death certificates proving the heir must accompany the affidavit of transmission and there are cases where the affidavit of transmission has no attached birth or death certificates - this shows incompetence. But it is incompetence that may cost the true heirs dearly - the loss of their inheritance.

Affidavits are sworn before notaries or certain court officers. In general, the notaries or court officers only have to ascertain that the person signing the affidavit is the person he or she claims to be. But there are suspicions on the innocence of certain notaries.

There are ways to tackle these problems: (1) Notices of Applications for the Appointment of Executors and the filing of affidavits of transmission could be published in a daily paper and/or online; (2) Attorneys and Notaries are properly appointed according to the law (there are instances of appointments whereby it is doubtful whether one has actually gone through the lawful process of qualifying as an attorney or notary - and if one is willing to cheat the process of qualification, one may be of the character of willing to cheat heirs of their inheritance); (3) The Police/Attorney General's Office should take complaints of swearing false affidavits seriously and prosecute such individuals, they are also committing other crimes in swearing the false affidavits. The prosecution of such offences should be made public to make the public know that the authorities are dealing with such matters and this may deter future fraudsters.

For now, heirs or heirs-to-be must be vigilant. Information on Land Ownership is publicly available at the Registrar General's Offices, which is also the Land Registry. Attorneys and Notaries who dabble in such affairs should be reported to the Chief Justice of Seychelles, who may initiate investigations into the attorney's and/or notary's conduct and take disciplinary action against them if they are found to have acted unethically or incompetently.  Those who swear false affidavits or aid in the process should must be reported and complained of to the police. And if the police fails to take the matter further, the police should be reported to the Ombudsman.

For those who may already be victims, you should see  an attorney. The Scheme can be reversed, but the passage of time does not help that end.

The Robing Room is the official blog of the Seychelles Legal Environment Website (sites.google.com/site/theseychelleslegalenvironment), the only website about the Seychelles Legal Environment that is constantly updated.