How to avoid disputes and purchase land legally in Haiti

« The greatest danger in terms of land insecurity in the country work at the DGI, » accuses the President of the Fort-Liberté Bar Association

Agronomist Lovinsky had already paid 80% of the 2 million gourdes required for the purchase of a 2,500-square-meter plot of land in Canapé Vert when he discovered that another buyer was also in the running.

Like other real estate buyers in the country, he signed a so-called « private deed » agreement in October 2023 directly with the owner, without going to a notary.

Although popular, these forms of sale remain fragile, according to real estate specialists contacted by AyiboPost.

« Sales under private deed, explains notary Gilbert Émile Giordani, consist of selling a property without an intermediary. It is based solely on trust between the two parties. This represents a danger in itself. Because in the event of conflicts relating to the right of ownership, the private deed does not have the same evidentiary power as an authentic deed. »

A private sale […] consists of selling a property without an intermediary. It is based solely on trust between the two parties.

– Gilbert Émile Giordani

Selling through a deed of sale offers more assurance. It requires the presence of a notary, follows a rigorous process, and obeys the laws.

In fact, specialists recommend contacting a notary as soon as you are interested in a property. According to them, payment is not at the top of the list of priorities.

The first step is a basic agreement to kicks things off.

In this first stage of the procedure, the seller and the buyer agree on the property for sale, the price, its description and its surface area.

All the formalities and procedures leading to the signing of the deed of sale are also set at this time.

This is called « the promise to sell. »

Legally, a promise to sell is equivalent to a sale.

It is recommended that this be done in writing before a notary and to always include an automatic termination clause. That is to say, a sentence or a paragraph that defines in advance the conditions under which the promise to sell can be automatically terminated, without the judicial authorities being able to oppose it.

Selling by deed of sale offers more assurance. It requires the presence of a notary, follows a rigorous process and obeys the laws.

Once the stage of the promise to sell has been completed, all responsibility for the transaction falls on the notary. They must ensure that the documents in question are really valid. And for that, they have to go back several decades.

This obligation has its origin in « la grande prescription. »

« This is the famous 20-year period that allows anyone to claim ownership when, for twenty years, they have occupied land without any title deeds and no one has ever come to reclaim it, » explains the president of the Fort-Liberté Bar Association, Me Evens Fils.

Following this period, the law assumes that this person must be eligible for ownership.

To prevent their client from buying potentially disputed land, the notary traces all the transactions that have been carried out on the property over at least two decades.

Through a survey, they will ensure that no one other than the seller claims to be the owner of the land or has taken it over. A surveyor is in charge of this process.

The latter is obliged to go to the site, with their work permit obtained from the Dean of the Civil Court or the Government Commissioner. Once the operation is complete, they register the survey deed with the General Directorate of Taxes (DGI), then send it to the notary.

« Of course, says notary Giordani, sometimes the results of the survey do not allow us to go back to the 20 years required by law. In that case, the notary may abstain from working on the file. Because if they decide to go ahead anyway, no matter what happens afterwards, they can be held civilly and criminally liable. »

In the event of land disputes, if the notary is at fault during the document verification process, they will be required to return the money given to the seller, and liable to imprisonment.

To prevent their client from buying potentially disputed land, the notary traces all the transactions that have been carried out on the property over at least two decades.

Despite the great risk involved, Me Evens Jr. points out that it is precisely at this stage of the transaction that notaries engage in the most deleterious activities.

Some, in complicity with the sellers, carry out the sale process with documents that they know to be illegal, says the attorney. They know that the deed of sale that will result from it will not be admissible. But some do it anyway.

To avoid any risks, the current member of the High Council of the Judiciary recommends hiring a lawyer and making sure that they are present at every appointment.

They will therefore be able to closely follow the administrative investigation conducted by the notary. And if everything goes well, the notary will be able to draw up his report.

The public officer will then proceed to draw up the deed of sale and sign it. They will pay the seller with the funds entrusted to them by the buyer. Then, they will give the buyer the title deeds and ask them to pay the registration and transcription fees to the General Directorate of Taxes.

The authentication of the deed of sale to the DGI is the final step in the procedure. « And 90% of the transactions that end up following the legal process are viable transactions, » says Evens Fils.

But even in this scenario, we are not immune to racketeers.

The President of the Fort-Liberté Bar Association points out that the situation generally at the origin of land conflicts is the multiplicity of title deeds for a single piece of land. And if this is the case, he denounces, it is largely the fault of the DGI. Because « it is what [often] allows several people to have access to a transcript for a single plot of land. »

Transcription is the process which, in notarial law, transfers the right of ownership to the buyer.

It occurs after the manual registration of the deed of sale in the land registry (Répertoire d’Entrée) and is decisive in the finalization of the sale. As long as the property purchased is not transcribed in one’s own name, they are not be the legal owner of it.

Transcription is the process which, in notarial law, transfers the right of ownership to the buyer.

To be enforceable against third parties and to be legally recognized as a title deed, the private deed of sale must also be registered and transcribed.

Lovinsky, quoted above, says he has hired a lawyer for this part of the procedure.

The registration and transcription of the deed of sale takes place at the Directorate of Land Registration and Conservation where the property is located.

In a notebook called a land ledger, a magistrate of the second rank of the judiciary, known as the land registry judge, is responsible for recording each change of ownership carried out.

Thanks to this, it is possible to confirm the identity of one or more owners of a property.

But above all, it enables all transactions carried out on each plot of land to be traced. A fact that should constitute a guarantee for land tenure security.

However, « those who represent the greatest danger in terms of land insecurity in the country work at the DGI, » accuses Fils.

Notary and vice-dean at the Faculty of Law of Quisqueya University, Gilbert Emile Giordani, also shares this opinion.

« DGI executives responsible for transcription are doing everything possible to maintain a climate of corruption within the service, » he says. And to do this, they use the system characterized by its phenomenal latency.

Recording and transcription are both manual.

Assuming that, due to the large number of transactions taking place, a dozen files can be filed with the Directorate in a single day, the land registry judge will not have the resources to process them all on the day they are filed.

When there is also socio-political unrest that paralyzes the functioning of the institution, the pile of files only increases, which implies that there will always be delays.

DGI executives responsible for transcription are doing everything possible to maintain a climate of corruption within the service.

– Gilbert Emile Giordani

At this rate, « a transcription can take between two and three years, » laments the professor. This leaves a lot of time for shenanigans.

For example, in the case of sales through an authentic deed, dishonest sellers take advantage of the period during which the transcription is not yet effective to resell the same plot of land to another person. This is one of the most common reasons for land conflicts.

But not the most serious.

« Generally, » Giordani reveals, « those who don’t want to wait long to transcribe their property, pay the judge to take care of it right away. » And, based on the testimonies of several of his colleagues, Gilbert Émile Giordani affirms that there are spaces left free in the registers voluntarily.

These spaces are, according to him, « opportunities for anyone who would like, in the future, to have a document dated before someone who already has their title deed. »

If several individuals hold an authentic deed of sale for the same property, it is the person who was registered and transcribed at the DGI first who is considered the legal owner. With these empty spaces that allow for the insertion of a new transcription « for a fee, » the land registry judge offers themselves the means to be able to go back in time.

Speaking on condition of anonymity, Y. C., a notary, acknowledges that the DGI contributes to the reinforcement of the problems inherent in the Haitian land tenure system.

However, he refuses to blame them alone. « Conflicts, he says, also come from notaries, surveyors, and lawyers, who manipulate the documents as they please. »

In the « Manual of Haitian Land Transactions, Vol. 1 » published in June 2012, the Working Group on Land Law in Haiti warns: to speed up the procedure, some notaries register the deed of sale with the DGI in a commune other than the one where the property is located. This practice, in addition to not being legal, can invalidate the act. And of course, lead to land conflicts.

In these cases, if the buyer has complied with the procedure, and finds themselves faced with another person who claims their land with papers showing that they are the true owner, they can hire a lawyer and take legal action against the notary.

If they are the ones who did not attempt to verify everything correctly, the notary will have to hand over the money and compensate the victim. On the other hand, if it is the seller who did not have the right to sell and who managed to deceive the notary, they can be arrested for having sold a property that does not belong to them.

Conflicts also arise from notaries, surveyors and lawyers, who manipulate the documents as they please.

– Y. C., Notary

The most likely way to deceive a notary is the use of a [forgery]. That is to say, a false document that meets all the criteria of a valid document.

But « only someone inside the system can manipulate it in such a way as to provide such papers, » notes Giordani.

To remedy this problem, specialists advocate for the precise identification and location of each parcel of land in Haitian territory, which is called the « cadastre. » This work has yet to be carried out and updated regularly throughout the country.

In addition to the question of the land registry, Y.C., the notary, believes that the possession of land without papers is also a source of land conflicts.

The notary argued in favor of dividing up land belonging to several heirs.

Because of the very often informal distribution of this type of land, it remains difficult to sell. And when they are divided, there are often disputes from an heir who has not been informed of the sale.

Haitian legislation is certainly not clear on inheritance issues, but it requires that in the event of a parent’s death and the absence of a will, the property be divided into equal portions among all the children of the deceased.

By Rebecca Bruny

Cover image edited by AyiboPost illustrating a land sale.

Keep in touch with AyiboPost via:

► Our channelTelegram:click here

► Our ChannelWhatsApp:click here

► Our CommunityWhatsApp:click here