XV ANNUAL CONFERENCE
ASSOCIATION FOR THE STUDY OF THE CUBAN ECONOMY (ASCE)
AUGUST 4 – 6, 2005
When the Cuban Revolution overthrew the Batista government, most of Cuba’s institutions faced impending and, in many cases, radical change: the Cuba of 2005 has very few things in common with the Cuba of 1959.
One of those institutions, the Cuban Land Title Registration System, has survived, in the Law-books at least, almost intact. The same Registral Law under which land title registration was conducted in Cuba in 1958 -the Spanish Mortgage Law of 1893 (Ley Hipotecaria de Ultramar), even with many of the amendments it has undergone since its adoption, and specially over the past 46 years- is still Cuba’s Registral Law. It has never been abrogated, and the professionals running Cuba’s registry system today -many of them very young and bright lawyers- are trained in Spain, by other very bright professionals, the Spanish Registrars, who resemble, in their very high level of competence and in their -mostly conservative- perspective of the world around them, those who, in all likely-hood, would be the Cuban Registrars today but for the “success” of Castro’s Revolution.
My essay attempts to show why these circumstances may prove auspicious when the time comes to sort out, among Cubans, in Cuba, and after open and unhindered consultation with the people of Cuba, the difficult issues surrounding pre-revolutionary property rights.
In Memory of Dr. Oscar Salas Marrero,
Model, Teacher and Friend
LAND TITLE REGISTRATION IN CUBA: PAST, PRESENT AND FUTURE (?)
Cuba was the last country in our hemisphere to emerge from the Spanish colonial empire. As such, it was also the last country in our hemisphere where the application of Spanish laws prevailed, and –at least in some areas of the law- continued to prevail well into the Republican era. One of those laws was the Spanish Mortgage Law (Ley Hipotecaria), by which the recordation of legal documents for publicity purposes –in what we in the United States call the public records and in Spain is known as the Registro de la Propiedad– was regulated and organized.
A Cuban version of the Spanish Registral System remained in force by the time the castroite revolution took over. A registral system that came very close to resemble the one in Spain, meaning one that, despite having evolved pursuant to Cuban societal needs (which have always differed from those of Spain), distinguished Cuba from almost every other nation in the hemisphere.
Even to this day, the Spanish Mortgage Law remains Cuba’s Registral Law.
A reference to the rules and regulations governing the public records system as being a special and distinctive branch or area of the Law – Registral Law – may sound odd to Anglo-American legal ears, but this is how it is regarded in Spain and in many other countries in the world.
The Spanish Mortgage Law and the body of laws and regulations generated by it is still today a monument to transparency, safety and expediency at the service of the real estate and the financial markets. Despite the fact that it dates back, in its original version, to the XIX century, the Spanish Mortgage Law is as market oriented a piece of legislation as you are likely to find anywhere in the world today.
Contrary to the longstanding perception (or prejudiced mis-perception) according to which most of the problems afflicting Latin America are a consequence of its Iberian heritage, Spanish Registral Law is a heirloom all Cubans –and many other people in Latin America, to the extent that their laws are permeated by it- can be proud of.
The preservation of this Registral Law as the one still in force in present day Cuba, may be a favorable sign that some of the most delicate tasks ahead when the time comes to consensually conceive and develop the blue-print for the Cuba of the future, may turn out to be much less strenuous than they may seem to us today.
The first Mortgage Law (Ley Hipotecaria) was adopted by Spain in 1861, and its adoption was driven by the changes Spain -and the World at large- experienced through the first half of the XIX Century. The fact Spain’s population had almost tripled, the advent of the railroad in 1848, and the World economic expansion, all contributed to the growth of foreign investment in Spain and to the also growing perception that more needed to be done in order to solidify and guarantee property rights (and the traffic on them in the real estate market), to facilitate real estate financing, and to satisfy growing housing needs. Spain responded to those challenges through the adoption of its Ley Hipotecaria, and before long, began considering the benefits its application could bring to its provincias de ultramar, Cuba amongst them.
It took about twenty years for the 1861 law to be implemented in Cuba, and by the time it was adopted –by means of a Royal Decree dated December 19th, 1879- it contained the reforms and improvements made in 1869 to the original version, as well as a number of changes that took into consideration problems which were of particular importance for the island of Cuba (and different from the problems Spain faced). For instance, the two last Sections (Títulos) of the Regulations for that first registral law to be enforced in Cuba, dealt with matters like the registration (inscripción) of unrecorded title documents1) Reglamento General para la ejecución de la Ley Hipotecaria de la Isla de Cuba, Titulo XV, articles 468 to 483
and the effects of old recording entries2)Ibid, Titulo XVI (efectos de las inscripciones antiguas) articles 484 to 495. These issues, as well as the large number of undivided ranches3)Ibid, Titulo IV (fincas comunera) articles 120 to 123
, and the special importance that the financing of small agro-business (créditos de refacción agrícola) had for Cuba, were given a special treatment and consideration by the drafters of both, the 1879 Law and its Regulations.
This interaction for the development of this law between Spain and its far away provinces –Cuba, Puerto Rico, and the Philippines- was very fluid and fruitful, as shown by the fact that, when in 1893 Spain reformed the registral law in force in its three “provincias de ultramar” by sanctioning a uniform mortgage law for them –Ley Hipotecaria de Ultramar, or Ley Maura, as it was also known (the Ministro de Ultramar was then Don Antonio Maura y Montaner)- the changes and innovations introduced by it foretold the reforms implemented in Spain in 1909. This meant, for instance, that for over 16 years, Cuba and its two sister provinces had a summary or expedite procedure for the execution of mortgages (procedimiento judicial sumario) that was not available in Spain.
The market friendly approach pursued by the drafters of this law -inspired by both Latin and Germanic legal principles- is evinced by the fact that the law prescribes that the information publicized through the registry entries is presumed to be truthful and exact, and the person shown by those entries as the owner (the owner of record or titular registral) is deemed to be the legitimate owner, meaning he is legitimized to efficiently act as the owner in the real estate market (principio de legitimación registral or legitimacy principle).
A consequence of this pro-market feature is seen in the protection the Spanish registral system affords the third parties (bona fide purchasers for value that take title from the legitimized owner of record) who rely on the information contained in land record entries (at the Registro de la Propiedad): the rights of these third parties are upheld (in effect, they are guaranteed by the public registry) even against the verus dominus or true owner. This feature (the result of the interplay between the principle of registral public faith, or fe pública registral, and the aforementioned legitimacy principle) is supported by two other important features or principles of Spanish Registral Law:
(i) the Registrar must determine the due form of all documents presented for registration, examining them thoroughly (principio de calificación registral o de legalidad) and linking them to the information he or she already has in the registry office in question (principio del tracto-sucesivo or chain of titles principle);
(ii) the registry must be kept or organized according to the folio real system or technique, which requires the opening of an individual record for every parcel or tract: it is in that individual record where all transactions (all property rights and encumbrances) pertaining to that parcel or tract are registered or inscribed, so that by looking at this single folio real record, all the information affecting that piece of property can be ascertained (something akin to the concept around which our title insurance industry builds its title plants).
Plainly, the features of this registral system and the extent of the powers it confers on its registrars, suggest that not just anybody -not every well intended and dedicated public servant- will meet the requirements for the role of Registrar. A Spanish Registrar is an extremely well trained legal professional, whose remuneration is commensurate to his or her training. He accedes to the office of Registrar after a painstaking competitive selection process. The Spanish registrars comprise an elite corps within the legal profession in Spain.
The same could be said about the Registrars in Cuba before Castro.
Since those lawyers presently in care of the registry system in Cuba are trained by this same Spanish Registrars that we described above, and are familiar, through that training, with many of the principles and the mechanics that guide the Spanish registral system to this day, we may have reasons to foresee a solid foundation for the registral system in the Cuba of the future.
This is not to say that registral law practice in Cuba today resembles that in Spain. The measures taken by the revolutionary government with regard to the Cuban registry system over the past 46 years make such a comparison impossible. But from the late nineties on, the direction Cuban registral law has taken seems to point towards a re-valorization of the Spanish registral system.
Over the almost forty seven years the revolution has been in power, the registral system in Cuba has been through different and extreme opposite stages: from a stage of utter disinterest and disdain on the part of the Cuban government, to a rediscovery of its significance in the late nineties, a stage that is still being played out.
Some of the first revolutionary laws affecting or changing real property interests contained provisions for making those changes public through the existing registral system, even if, in some cases, the revolutionary law called for special new sections within the existing registry offices for such publicity purposes.
For instance, the 1959 Agrarian Reform Law “created” a Rural Property Section (Sección de Propiedad Rústica) where all transactions related to rural property (fincas rústicas) were to be recorded. But the implementation of this special section was left to regulatory norms that were never adopted. This omission led to the loss of anything resembling a chain of title (tracto sucesivo) to most rural properties, since the agrarian reform –continued and exacerbated through the 1963 Agrarian Reform Law- entailed a massive transfer of property rights, on which few reliable records were left, a problem not just in terms of property rights per se, but also with regard to measurements and boundaries of parcels resulting from the fragmentation of larger ones.
Similarly, Law No. 1180 of July 1st 1965, “created” a Urban Property Section (Sección de Propiedad Urbana) in the existing registry offices, where the “beneficiaries” of the 1960 Urban Reform Law –those who completed the payments towards the acquisition of the urban dwellings they were occupying when the revolutionaries seized power- were expected to record their titles. Few of these new “owners” complied with this requirement, and those who did, filed “title documents” that were so lacking in detail –for example, they showed no description of the premises (parcel, condominium unit)- that uncertainty reigned, even for those who recorded. It did not take long for the Urban Property Section to follow the Rural one into the waste-bin of Cuban registral law history.
The existence of special sections like these undermined the Spanish Mortgage Law in yet another way: filings were made without the Registrar passing muster on the titles presented for recordation, leading to the demise of one of the system’s guiding principles (the principio de calificación registral) and damaging the system’s very core.
It should be pointed out that this was not Cuba’s first experience with special sections where documents are filed with barely any examination by the Registrar: very early in the Twentieth Century, during the American occupation, special sections were also used to expedite the recording of newly created –and privileged- property rights. The first such special section was established for the benefit of railroad companies involved in the construction of the Ferrocarril Central, pursuant to Executive Order No. 34 of 1902.
Law No. 1180 foreshadowed the phasing out of the old registral system and the advent of a new/revolutionary one, embodied in Land Tenure Registries (Registros de la Tenencia de la Tierra) and Urban Residential Property and Vacant Site Registries (Registros de la Vivienda Urbana y Solares Yermos), the latter created by the 1984 and 1988 Housing laws.4)Law No. 48 of December 27, 1984 –Ley General de la Vivienda, and Law No. 65 of December 23, 1988 –Segunda Ley General de la Vivienda
The Land Tenure Registries fell under the control of the Agriculture Department, and the Urban Residential Property Registries were placed under the supervision of a National Housing Institute (Instituto Nacional de la Vivienda) and were to be run by the Municipalities. But as had happened years before, none of these registries were ever formally established, because the regulatory norms required for them to function were never passed.
In can be argued that the type of property rights –personal property rights over real estate, or propiedad personal– legally recognized in Revolutionary Cuba is, by its nature, not likely to be recorded; in other words, that the holder of such rights will have no incentive to record them. At least not the type of incentives the holder of private property rights may have in a different type of society.
Under Cuba’s economic and social system, all goods and assets which do not rate as means of production are deemed to be destined for individual consumption, and are thus capable of being the subject of individual or personal property rights. Houses are considered gradual or extended (long term) consumption assets, and Cubans are allowed to have a personal right to use them to satisfy the housing needs of their families. But they hold those rights practically at the State’s will, since only with the consent of the State can those rights be negotiated or transferred. This is not an incentive for the right-holders to rush to the registry office.
What is more, Resolution number 259 of June 19th, 19895)Article 3, (a) and (b), issued by the National Housing Institute (Instituto Nacional de la Vivienda, in charge of running what we might call the urban side of the registry system), temporarily barred the recording of any real property interests other than those held by the State (“. . . títulos que acrediten la propiedad del estado . . .”) or through the State, by way of usufruct (“ . . . títulos en los que se establezca el usufructo sobre terrenos urbanos de la propiedad del estado . . .”).
But the 1984 General Housing Law (Ley General de la Vivienda de 1984) -which temporarily “liberalized” the rules governing the rights to urban housing until it was superseded by a similar law in 1989- considered those personal rights (the housing rights included) inheritable, and according to the opinion of some of our Cuban colleagues –as manifested in Registral Law seminars and conferences- one of the most “active” registries in Cuba today is that of wills and testaments. As it is frequently the case in Civil Law countries, a will needs to be recorded by the time of its author’s death if it is to be probated. Cubans eagerly record their wills, we are told.
The 1989 Housing Law kept the transmission of these rights through inheritance viable, although it added a series of requirements tied to issues such as who was in fact occupying the house in question –together with the decedent- and the size of the premises: if the decedent wants the house to go to you, you need to have been a resident there for the legally prescribed time (two to five years), and if the house is deemed –by the Municipal Housing Directorate- too large for your needs, the State takes it over –and you get another one in substitution.
But despite this ample room for arbitrariness, there seems to be a very strong feeling of proprietorship in most Cubans, many of them telling you proudly that they have paid for their houses (for their “personal” housing rights, if you wish), buying them from the State. They do not seem in need of any incentive to record and protect their rights, once such recordation becomes available.
The latest chapter of this brief “history” of the Cuban Revolution’s ever changing views regarding the publicity of property rights begins with the changes made to the 1989 Housing Law by the Decreto-Ley 185, of May 28th, 1998.
This piece of legislation, by amending Chapter IX6)Ley General de la Vivienda, articles 116 to 121
of the 1989 Housing Law, to some extent “restored” the old registry system7)Chapter 9 is now captioned Registro de la Propiedad, and there are claims in Cuban legal literature that this law “established” the Registral System in Cuba, so as to avoid saying that it “re-established” it
, as it adopted the following measures:
(i) the registry system was placed back under the supervision of the Minister of Justice8)Ibid, article 116, while the Municipalities retained the administrative control and remained in charge of rendering the registral services; this supervisory function by the Ministry of Justice (“Minjus”) was strengthened in 2003, when article 120 of the Housing Law was last reformed;
(ii) it compelled all owners (titulares) of housing units, other buildings and vacant lots, to record their title documents, as well as any transaction whereby ownership (dominio) -or other rights over property- is transferred, or any encumbrances (cargas) are created, or even any changes in the structures built in the premises are obtained9)Ibid, article 117;
(iii) it required the use of a public or notarial instrument (escritura pública) for the transfer of ownership (transmisiones de dominio), and for the description of new structures built in the premises.10)Ibid, article 118
The reformed Housing Law also attempted to restore the authority of the Registrars to decide upon the legality of the documents of title presented for recordation,11)Ibid, article 119 as modified by Decreto-Ley 233/03 issued by the State Counsel (Consejo de Estado)) extending it to the point the Registrars are allowed to fix and/or adjust (fijar o ajustar) the measurements and boundaries of the properties which are described in the title documents, an expansion of the poder de calificación registral that can only be explained by the low quality of the title documents used in Cuba and the Cuban authorities’ “decision” to fast track into a workable registry system. The 2003 reform to the Housing Law appears to subordinate the Cuban Registrars’ surveyor like powers to the cadastre, by requiring that any such adjustments must be supported by a cadastral certification.
When people in Cuba talk about their “title” to a given property, they are, in most cases, referring to administrative titles: documents issued by some bureaucratic governmental entity –documentos administrativos– as opposed to the notarial deeds or escrituras públicas which were used before 1960, that is, before the Urban Reform Law. The goal of this Urban Reform Law was to regulate the occupancy (or possession) of urban housing, and it was not concerned with guaranteeing any rights, which is the function of a registry system: therefore, the law all but ignored the needs of the existing Registry of the Property (Registro de la Propiedad). The massive property transfers obtained through its implementation were documented in a variety of administrative titles –in some cases issued by the Popular Savings Bank (Banco Popular de Ahorro), where those “buying” from the State the housing units they used to rent had to pay their dues. These title documents did not fulfill many of the formalities you might expect to see in a title document suitable for recordation –the description of the property is frequently missing or is deficient, the parties personal information is incomplete, etc- which led to the re-introduction of the public deed through article 118 of the Housing Law.
The re-discovery of the significance of having a workable registry system was apparently grounded on two perceived needs:
- the need to satisfy the expectations of foreign investors in real property with regard to the certainty and stability of their rights; and
- the need to “protect” the rights of those who benefited from the Urban Reform property transfers.
Under Chapter VI of Cuba’s 1995 Foreign Investment Law –Ley 77 de 1995-, foreigners –meaning those who are not permanent residents in Cuba- were allowed to acquire property rights in certain varieties of Cuban real estate, including residential property, tourism related properties, and commercial property for use as office space by foreign companies.
But some of those foreigners tended to form relationships –like marriage, for instance– with Cuban nationals –permanent residents in Cuba- who could eventually claim a stake over the property in question. The realization of the impact this could have down the road seems to be the reason behind a sudden change in Cuba’s attitude towards foreign investment in real estate: the Cuban government’s enthusiasm with it barely made it into the New Century, and in the Summer of 2000 the authorities put the clamps on this incipient market –the Foreign Investment Ministry describes the situation as an “interruption”. The explanation was that the condominium high rises that were being built -mostly in the Miramar area of Havana- for the foreign investment market were straining the city’s utilities infrastructure, which called for an exhaustive re-assessment of the viability of pending projects.
Still, those foreigners who bought Cuban real estate during this brief period –the roaring late nineties- have their titles recorded, most of them at the registry office (oficina del Registro de la Propiedad) at La Lisa, one of the four currently functioning in Cuba’s capital as a result of the attempt to restore the historical (Spanish inspired) registry.
The concern regarding the rights of those Cubans who benefited from the Urban Reform of the early sixties is tied to one of Castro’s favorite bugaboos: the return of the former owners. Some may see this new-found love for the registry system as part of a governmental ploy to fend off future claims by those pre-1959 owners.
But even then, there are certain good signs in this process of re-affirmation of some of the traditional principles of Spanish Registral Law: the concern with strengthening the rights of the present owners/occupants of property taken from the former owners –by publicizing the present owners/occupants’ chains of title- has not led to the destruction of any of the records that would evince and sustain the claims of the former owners.
These “old” records may well be in better shape than their counterparts in other countries in Latin America, where it is not unusual to find registry books that tend to crumble when you are trying to read through their pages. The reason is that, as described above, the Cuban registry system was practically dormant during the first thirty some years of the Cuban revolution, and not until the advent of foreign investment in real estate did anybody need to handle these registry books. However, when you want capital to flow into your society –even if your society is built around socialism- you have to be ready to meet capitalist expectations regarding stability and legal certainty for investments.
But the registry system in Cuba is still permeated by another perceived need which is a trait of a society that looks at freedoms and democratic principles from a different angle than we do: the need Cuba’s rulers have to control most aspects of the daily life of its citizens.
In Cuban legal literature, as in some of its statutory laws, the registry system is often described as serving a “public interest” such as ‘controlling land tenure’. For instance, Article 4 of the 1990 regulations for the Land Tenure Registry or Registro de la Tenencia de la Tierra, when listing this registry’s functions, highlights as number one the role of accounting for –and regularly updating- the status of land-holdings in Cuba, at every level: national territorial and municipal.
The holders of rights over agricultural lands (tenedores) are required to come before the Land Tenure Registry and record their “tenancies”, and at that same time, their legal situation or status as holders of those rights can be “adjusted” by the Registrar. And not only at the time of recordation of their interests are Cuban property rights holders subject to such adjustments: under the aforementioned regulations, their recorded “legal situations” are to be periodically reviewed by registry personnel, which gives a clear indication that the registry was created in order to facilitate the State’s vigilance and control over the tenants, and not necessarily for their protection.
The same can be said about the Urban Housing and Vacant lots registries overseen by the National Housing Institute, and even about the Registro de la Propiedad described later in this paper, at least in its present stage of development.
The shortcomings of the Cuban registry system become apparent if we use the parameters our title insurance companies use to gauge the viability of their line of business in a given foreign market:
- The country’s legal frame-work must include a record keeping system relating to land transactions which is solidly protected by law and capable of providing notice to the public of the existence of the transactions;
- The country’s laws must protect the rights of bonafide purchasers and mortgagees;
- The recording system must allow a title researcher to follow the chain of title to a given property in order to determine the existence of any defects or encumbrances;
- The transactions must relate to land described in a definable way.
The registry system in Cuba is not as “public” as a title insurance underwriter may require, although this seems to be changing. Still, it is difficult to foresee our title insurance industry, never overly enthusiastic with the idea of taking on risks, entering a market like Cuba.
But it is equally difficult to conceive a product along the lines of a title insurance policy selling well in a legal environment like the one provided by the Spanish Mortgage Law: present day Spain shows a booming real estate sector and one of the most active and fluid mortgage markets outside of the United States. Still, no title insurance is used because legal certainty in Spain rests on that very solid legal environment anchored by the one hundred and forty three years old “Ley Hipotecaria”.
Had there been no Castro, Cuba’s registry system –the old Registro de la Propiedad Inmueble– could have sustained a booming market like the one in Spain today. But the revolutionary registries –the Registro de la Tenencia de la Tierra and the Registros de la Vivienda Urbana y Solares Yermos– were something else.
Could the present Registro de la Propiedad turn out to be different?
The “revolutionary registries” were superseded by the aforementioned Decreto-Ley 185/98, which amended the 1988 Housing Law, as a result of which the old/historic registry system was, in a way, revitalized.
Ever hesitant to implement this type of changes to the registry system by adopting the necessary enabling regulations, it took the Cuban government four years before the Minister of Justice issued Resolution number 39 of March 1st, 2002, which enacts the rules for the recordation of title to real property and other real property interests in the Registry of the Property (“Normas para la inscripción de los títulos inmobiliarios y otros derechos sobre bienes inmuebles en el Registro de la Propiedad”).
This regulatory act -comprising 27 articles, six “special provisions”, and two “final provisions”- determines which titles or “títulos traslativos o declarativos de dominio . . .”12)Resolución 39/02 del Ministerio de Justicia, article 1. Another Resolution number 212/01 –was previously issued to implement similar rules for the recordation of titles and other rights over state owned real property in the Registry (“normas para la inscripción de Títulos Inmobiliarios y otros Derechos sobre Bienes Inmuebles Estatales en el Registro de la Propiedad”): in 2001 only rights over state owned properties were recordable. These two resolutions were unified into a single “harmonized”, set of rules for the recordation of titles and real property interests, by means of Resolution number 247/03 of the Ministry of Justice.
and what kind of rights or “derechos reales y otros derechos relativos a viviendas, otras edificaciones y solares yermos . . .”13)Ibid, article 2 can be recorded in the Public Registry of the Property.
It stipulates the formalities a title must meet and what its contents must show in order to be recorded14)Ibid, article 3, establishes who –foreigners amongst them- can seek the recordation of titles15)Ibid, article 4, and how to go about it.16)Ibid, articles 5 to 12
The bulk of these regulations17)Ibid, articles 13 to 20 describe different methods whereby title chains can be restored (procedimientos para la reanudación y convalidación del tracto registral), and contain references to pre-revolutionary titles and recording entries.
In essence, these rules –read together with the reformed Housing Law they regulate- tend to confirm the path undertaken towards a restored –and redeemed- old registry system, which slowly begins to resemble the one prescribed by the 1893 Spanish Mortgage Law, still Cuba’s Registral Law. Hopefully, there will be no “interruption” this time around.
At about the same time, in early 2002, the National Housing Institute adopted resolutions that complemented these registry regulations:
Resolution number 6/02 established the procedure to be followed in order to get all State owned housing assets (viviendas que integran el patrimonio estatal) from an Administrative Registry into the Registro de la Propiedad described in Chapter Nine of the Housing Law: article 9 of Resolution 6/02 makes this mandatory within sixty days from the completion of a verification process at the municipal housing authority level. And in several of its twenty articles or sections, there are references to said Registro de la Propiedad with a definite Spanish Mortgage Law flavor –for instance, the reference to a “nota simple informativa” issued by the Registro (a report used by registries in Spain when a legally binding certificate is not requested from them) in article five (b), which must be attached as supporting evidence in the aforementioned verification process.
By voiding all prior inconsistent regulations, this resolution seems to set aside Resolution number 259/89 of the National Housing Institute18)Instituto Nacional de la Vivienda, Resolution 6/2002, article 20 (see note number five at page 9). Still, the verification process supported by the information filed at the administrative registries, gives the municipal offices of the Housing Institute air-tight control over the information that is to reach the Registro. The Departamento de Control del Fondo, an internal division within the Housing Institute which oversees the estate owned housing stock or inventory (viviendas vinculadas y medios basicos), is in charge –and in control- of processing, legalizing and registering said information.
The same control is exerted by the municipal housing authorities when it comes to putting together the information to be recorded in the Registro de la Propiedad with regard to private individuals’ personal rights to housing “titles” and other parcels held under personal property rights (“trámites para la inscripción de los títulos de las viviendas y terrenos de propiedad personal en los registros de la propiedad”), pursuant to Resolution number 33/02 of the National Housing Institute.
The controlling vocation is also evident in an Agreement (Acuerdo) of the Executive Committee of the Consejo de Ministros –Cuba’s Cabinet- adopted in May 2003 calling for the management and control of the country’s real estate assets.
Soon after this agreement, there was a new round of measures related to the registry system. Cuba’s legislative organs easily travel from an almost catatonic state to hyper-activity, at least in this area of the law. But this may also be due to the fact that, for some time now, the need to deal with property rights and their publicity –as well as with other related issues- has been recognized by the authorities (in the late nineties there were great expectations about the sanction of a Property Law, which, if anything, may be in the process of being adopted piecemeal), and this perceived need may well go beyond managing and controlling their stock of housing and agricultural land.
The re-creation of the old or historic registry system seems to be geared towards a solidification of the rights born out of the several revolutionary laws that changed the property rights landscape in Cuba over the past forty-six years. By orderly recording each housing asset, and “publicizing” the property rights of those presently benefiting from them, the Cuban government may be seeking to establish a credible root of title for each of those situations. And they may be trying to do this without avoiding the issue of pre-revolutionary property rights.
Just how this Registro de la Propiedad Cuba is trying to build will eventually look is foretold in Chapter VI –articles 46 to 51- of yet another Resolution issued by the Ministry of Justice in 2003. It is a Registry that will be gradually built19)Resolución 247/03 del Ministerio de Justicia, September 15, 2003: article 46, following a block by block mass registration program, using two recording Sections, one Rural and the other one Urban. The technique to be used is the same found in the old Spanish Mortgage Law: it is a registry system kept in books20)Ibid, article 47, where the Rural Section is organized by opening a record for each parcel (finca), and the Urban one by opening one record for each block (manzana) –and within it, one for each housing unit-, with both sections patterned after the folio real technique.21)Ibid, article 49 Recordings related to certain properties that do not fit into the block by block program envisioned by the Cuban authorities, will be made in the books of the Old Registry, following what is provided in the Mortgage Law and its Regulations (“. . . se practican en los libros del antiguo Registro, de conformidad con lo estipulado en la Ley Hipotecaria y su Reglamento”).22)Ibid, article 51
That is why I believe that -in this area of the law, as well as in others- it is important to be cognizant of the type of legal construction that is being emplaced in Cuba, no matter how one may feel about its foundations.
The Cuban government’s position with regard to the legality of the nationalizations undertaken by the revolution in the early sixties is grounded on a series of resolutions passed by the General Assembly of the United Nations, as well as on a line of cases from the United States Supreme Court where the Act of State Doctrine is upheld against the claims of those contesting the legality of Cuba’s actions.
The Act of State Doctrine has also been interpreted by our Judiciary in ways inimical to Cuba’s actions and position, but even if we consider those actions illegal seizures of property that infringe upon and contradict both, International law and Cuba’s own laws, we will still have to deal with them –and with Cuba’s “legal brief” on the subject- and with the fact that many of the eleven million Cubans in the island (as well as many of the young lawyers trained in Cuba over the past decade)23)Even if Castro once asked, in one of his oratorical marathons, “who needs lawyers?” (¿abogados para que?) the number of lawyers –and law schools- in Cuba have increased at a very brisk pace lately. are bound to see Cuba’s position under a very different light than we do.
So rather than ignoring and dismissing Cuba’s arguments, we should be thinking of ways in which we can have influence in the future development of Cuba’s legal system with regard to property rights, whether by effectively –which is to say convincingly- refuting those arguments, or by seeking common ground with those we will need to persuade.
The fact that many of the guiding principles of Spanish Registral Law are still well understood among those legal professionals in charge of the apparent restoration of the Cuban Registral and Notarial Systems, may open the door for the use of tools like the “acta de notoriedad”, a document signed before a Notary whereby diverse parties may recognize certain facts that carry juridical or legal consequences or effects, in order to re-establish –or fill some gaps in- a given chain of titles.
But it is vital that we emphasize the consensual nature of tools like the one just described, because it is through such a collective attitude that the Cuba of the future will be able to re-establish, not just the title chains shown in the Registro Público, but it’s legal system itself, making it durable and truly representative of the views and aspirations of all Cubans. Because all people, every society, aspires to develop a legal system (an ordenamiento jurídico) that is an accurate reflection of its special needs, culture and idiosyncrasies. But in order for that legal system to be efficient and capable of satisfying the needs of the society it serves, it must be the product of the broadest possible consensus within the society in question. A consensus arrived at in absolute freedom, without exclusions or prejudices of any kind.
The experiences of other societies in transition, the expectations of investment capital, the principles of International Law, are all factors to be taken into account. But ultimately, it is the freely expressed will of a sovereign people that will count when the time comes to lay the foundations for the Cuban legal system of the future. And here, the emphasis should be on “freely expressed”: a legal system arising, by democratic means, from the consent of the Cuban people as a whole.
Jose Manuel Palli, Esq.
Oscar Salas Marrero, Huellas de la Legislación Española en las Legislaciones Registrales Iberoamericanas, Leyes Hipotecarias y Registrales de España, Tomo VI, Volumen II-B : Cuba, (Editorial Castolia, Madrid, Spain 1991).
Antonio R. Zamora, Real Estate Investments in Cuba : Back to the Future, Florida Journal of International Law, Fall 1997, Volume XI, Number 3.
Stephen J. Kimmerling, Rights and Remedies Concerning Cuban Residential Properties Cuba in Transition, Volume 11 (2001)
Oscar H. Beasley, Highlights of Commercial Coverage for Lenders and Owners,
XII Congreso Internacional de Derecho Registral (CINDER), Punta del Este, 2001
Orlando Rivero Valdés, Temas de Derechos Reales, (Editorial Felix Varela, La Habana, Cuba, 2001)
Regino A. Gayoso Rosabal and Jhosvany Martinez Barreiro, Principales Retos que Enfrenta el Ordenamiento Registral Cubano en una Etapa de Transición hacia una Nueva Ley Registral, XVIII Encuentro del Comite Latinoamericano de Consulta Registral, Santo Domingo, RD, 2004
Timothy Ashby, Cuban Real Property – Current Laws and Future Prospects, 23 Real Estate Journal 125 (Fall 2004)
References [ + ]
|1.||↑|| Reglamento General para la ejecución de la Ley Hipotecaria de la Isla de Cuba, Titulo XV, articles 468 to 483|
|2.||↑||Ibid, Titulo XVI (efectos de las inscripciones antiguas) articles 484 to 495|
|3.||↑||Ibid, Titulo IV (fincas comunera) articles 120 to 123|
|4.||↑||Law No. 48 of December 27, 1984 –Ley General de la Vivienda, and Law No. 65 of December 23, 1988 –Segunda Ley General de la Vivienda|
|5.||↑||Article 3, (a) and (b|
|6.||↑||Ley General de la Vivienda, articles 116 to 121|
|7.||↑||Chapter 9 is now captioned Registro de la Propiedad, and there are claims in Cuban legal literature that this law “established” the Registral System in Cuba, so as to avoid saying that it “re-established” it|
|8.||↑||Ibid, article 116|
|9.||↑||Ibid, article 117|
|10.||↑||Ibid, article 118|
|11.||↑||Ibid, article 119 as modified by Decreto-Ley 233/03 issued by the State Counsel (Consejo de Estado)|
|12.||↑||Resolución 39/02 del Ministerio de Justicia, article 1. Another Resolution number 212/01 –was previously issued to implement similar rules for the recordation of titles and other rights over state owned real property in the Registry (“normas para la inscripción de Títulos Inmobiliarios y otros Derechos sobre Bienes Inmuebles Estatales en el Registro de la Propiedad”): in 2001 only rights over state owned properties were recordable. These two resolutions were unified into a single “harmonized”, set of rules for the recordation of titles and real property interests, by means of Resolution number 247/03 of the Ministry of Justice.|
|13.||↑||Ibid, article 2|
|14.||↑||Ibid, article 3|
|15.||↑||Ibid, article 4|
|16.||↑||Ibid, articles 5 to 12|
|17.||↑||Ibid, articles 13 to 20|
|18.||↑||Instituto Nacional de la Vivienda, Resolution 6/2002, article 20|
|19.||↑||Resolución 247/03 del Ministerio de Justicia, September 15, 2003: article 46|
|20.||↑||Ibid, article 47|
|21.||↑||Ibid, article 49|
|22.||↑||Ibid, article 51|
|23.||↑||Even if Castro once asked, in one of his oratorical marathons, “who needs lawyers?” (¿abogados para que?) the number of lawyers –and law schools- in Cuba have increased at a very brisk pace lately.|