In areas where the shanty housing legislation and rehabilitation zoning measures have been applied, the title deed allocation certificate is foremost among the documents issued by the administration to rightholders. This certificate does not by itself create ownership; it does, however, generate a serious expectation that, once the conditions required by the legislation are fulfilled, the property may in the future be registered in the name of the certificate holder.
In practice, however, instances are encountered in which the administration, relying on various grounds, withdraws certificates it has previously issued and brings the person’s status as rightholder to an end. Yet there can be no question of an unlimited power of withdrawal conferred on the administration without any time limit. The principles of the protection of acquired rights, legal certainty and administrative stability render such acts open to review. An act that removes entitlement may accordingly be brought before the administrative courts and set aside.
In this briefing note we examine the situations in which the administration resorts to withdrawing the certificate, the legal framework of the action to be brought against that act, the time limit for applying, and the course of the proceedings.
What Does a Title Deed Allocation Certificate Mean?
A title deed allocation certificate is a document of an administrative character establishing the entitlement of persons meeting certain criteria over the property they use in fact. The great majority of these certificates were issued on the basis of Act No. 2981 on Certain Procedures to Be Applied to Structures Contrary to the Zoning and Shanty Housing Legislation.
The certificate cannot be equated with a title deed; it does not confer on the person a definitive and complete right of ownership over the property. Even so, it is a legally significant basis that opens the way to the conversion of the property into title in the name of the rightholder where the required conditions are fulfilled.
The function of the certificate in practice may be gathered under a few points. Above all, it establishes who is in the position of rightholder and shows by whom the property is in fact used. Beyond this, it prepares the ground for the conduct of rehabilitation zoning measures and constitutes the starting point of the process by which the property may later be registered.
It should not, however, be thought that everyone holding a certificate will automatically have the property registered in his name. For registration to take place, the zoning measures must be concluded, the property must have become capable of transfer, and the other conditions laid down by the legislation must also be met.
Our companion study entitled The Rights Conferred by a Title Deed Allocation Certificate and the Process of Conversion into Title may also be consulted in this context.
On What Grounds Does the Administration Revoke the Certificate?
Since the title deed allocation certificate is established as an administrative act, it may be withdrawn or revoked by the administration once certain conditions arise. The subsequent emergence of the fact that the qualities required for entitlement never in fact existed, the certificate having been issued contrary to procedure, or a change in the legal position of the property are the principal situations that bring a revocation act onto the agenda in practice.
It cannot be said, however, that the administration may exercise this power whenever it wishes and to whatever extent it wishes. Acts of withdrawal are limited by the principles of acquired rights, legal certainty and administrative stability, and are subject to judicial review.
The Declaration Not Reflecting the Truth
Where it subsequently emerges that the person concerned made an untrue declaration when the certificate was issued, the administration may resort to revocation. The situations most frequently encountered under this heading are the following: creating the appearance that the conditions of entitlement were present, concealing the fact that the property was not in reality used, and submitting forged documents or incorrect information.
The Absence of Factual Use
These certificates rest as a rule on the premise that the property is in fact being used. Where it is established that the use never existed at all or was presented otherwise than it was, the administration may establish a revocation act.
The property being under the factual control of other persons, or the use having ceased altogether, are typical situations giving rise to disputes in practice.
Failure to Meet the Criteria of Entitlement
The issue of the certificate depends on the presence of the conditions of entitlement listed in the legislation. If it is later established that those conditions never in fact arose, revocation may arise. By way of example, the failure of the conditions enabling a claim of right over the property to arise, the failure to meet the criteria of benefit required by the legislation, or the existence of more than one entry of entitlement in the name of a single person may be assessed within this scope.
Allocation of the Property to a Public Service
Where the property has subsequently been set aside for a public service such as a school, a hospital, a park or a road, the legal foundation on which the certificate rests may fall away.
It is seen that the administration establishes a revocation act particularly following amendments made to zoning plans and decisions of public interest.
The Property Not Being Capable of Transfer
The existence of the certificate does not mean that the property may in every event be converted into title. Where transfer is impossible by reason of the ownership position, the cadastral structure, the zoning plan or a special legal status, revocation acts may be encountered.
Disputes of this kind arise more frequently in respect of properties not held in Treasury ownership and of places subject to a special legal regime.
The Act Being Established Contrary to Procedure or Erroneously
Where the certificate has been issued contrary to the legislation, the withdrawal or revocation of the act by the administration may arise. In practice the matters standing out under this heading are the following: measures contrary to the legislation, errors made in keeping records and in carrying out assessments, the act having been established by a unit lacking competence, and the mandatory examinations not having been carried out at all.
Termination of the Status of Entitlement
Revocation of the certificate most often results in the removal of the status of rightholder conferred on the person as well. Where it is established that the conditions required for entitlement did not in fact exist, or where the factual use of the property has come to an end, the administration may remove that status.
Removal of the status directly affects the claims the person may advance over the property, his existing right of use and the continuation of the process of conversion into title. Because of these serious consequences, acts of revocation and of removal of entitlement are among the acts most frequently made the subject of proceedings before the administrative courts.
The Action for Annulment Before the Administrative Courts
Since the acts in question directly affect both the person’s right of use and his expectation of acquiring title, judicial review performs a decisive protective function in this field.
Legal Nature of the Action
The action brought against an act revoking a title deed allocation certificate is an action for annulment founded on the allegation that the administrative act is unlawful.
The proceedings are conducted within the administrative judicial order under the Administrative Procedure Act No. 2577. The court reviews whether the administration remained bound by the law when establishing the act. At the centre of that review lie the adequacy of the ground and the reasoning relied on for the act, whether the conditions of entitlement genuinely existed, the soundness of the assessment concerning the factual use, and whether the rules of procedure were observed.
Subject-Matter and Territorial Jurisdiction
In these disputes subject-matter jurisdiction lies as a rule with the Administrative Court.
The court with territorial jurisdiction is the administrative court of the place where the administration that established the revocation act is situated.
Time Limit for Bringing the Action
The action must be brought within the period laid down by law, running from the date on which the act was served or otherwise came to the person’s knowledge. The general time limit for bringing an action in respect of administrative acts is 60 days. Allowing the period to elapse may result in the loss of the right to bring an action.
Request for a Stay of Execution
Since a revocation act may give rise to losses of rights that are difficult to make good, a stay of execution may also be sought together with the statement of claim. For the court to grant such an order, two conditions must be fulfilled together: the act must be manifestly unlawful and its implementation must be liable to give rise to damage that is difficult or impossible to remedy.
Means of Proof
In these actions official records and documents play a decisive role as regards proof. Among the types of evidence resorted to in practice are the records in the municipal and administrative archives, the title deed allocation certificate and the contents of the file relating to it, cadastral records, on-site examination and expert examination, and witness statements. Whether factual use exists and whether the conditions of entitlement have been fulfilled are for the most part clarified by conducting an on-site examination and obtaining a court-appointed expert report.
Consequences of the Court’s Decision
The judgment to be given at the end of the proceedings directly affects both the person’s status of entitlement and the legal position of the property. Reviewing the lawfulness of the act established by the administration, the court may uphold the action or equally dismiss it.
Setting Aside of the Revocation Act
If the court finds the act revoking the certificate to be unlawful, it may order the annulment of the administrative act.
By such a decision the unlawful act is erased from the legal world and the validity of the title deed allocation certificate becomes open to discussion once more. Judgments of this kind as a rule operate retrospectively to the moment the act was carried out; the defective act may therefore take effect as if it had never been established at all.
Fresh Consideration of Entitlement
Following an annulment judgment, the administration may be obliged to reassess the person’s position as regards entitlement. Where the certificate is treated as valid, the administrative acts and the process relating to conversion into title arise once more.
It should not be forgotten, on the other hand, that the court’s decision does not in every case mean that title will be issued directly. For registration to take place, the parcelling and zoning measures may need to be completed and the other conditions required by the legislation separately met.
Dismissal of the Action and Survival of the Act
Where the court dismisses the action, the administration’s revocation act continues to exist and to be valid in law.
In that event the status of entitlement falls away and the person’s expectation of acquiring title comes to an end. In the same way, where the time limit for bringing the action has been missed or the act has been found lawful, the effects of the administrative act likewise continue to be valid.
Independent Legal Assessment
In disputes founded on a title deed allocation certificate, what is decisive is most often not the legal characterisation but the facts reflected in the file. On what dates and by whom the factual use was maintained, whether the records in the administrative archive are consistent with one another, and the changes in the zoning status of the property directly determine the fate of the action. For this reason the administrative file must be examined as a whole before the statement of claim is prepared.
In managing the process it is useful to give priority to the following matters:
- Documenting the date on which the act was served and following the sixty-day period from the very first day
- Advancing the request for a stay of execution in the statement of claim with the element of damage difficult to make good set out in concrete terms
- Gathering in advance the utility subscription, tax and headman’s office records that establish the uninterrupted nature of the factual use
- Questioning, on the basis of the case file, whether the ground relied on by the administration is the true reason
- Assessing the planning process separately where allocation to a public service and amendment of the zoning plan are alleged
- Planning the subsequent administrative stages, bearing in mind that an annulment decision does not by itself result in registration
Independent Legal provides advisory services and conducts litigation in disputes over entitlement arising from title deed allocation certificates, from the administrative application stage to the conclusion of the action for annulment.