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LAND REGISTRATION

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Originally appearing in Volume V16, Page 166 of the 1911 Encyclopedia Britannica.
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LAND REGISTRATION, a legal process connected with the transfer of landed property, comprising two forms—registration of deeds and registration of title, which may be best described as a species of machinery for assisting a purchaser or mortgagee in his inquiries as to his vendor's or mortgagor's title previously to completing his dealing, and for securing his own position afterwards. The expediency of making inquiry into the vendor's title before completing a purchase of land (and the case of a mortgage is precisely similar) is obvious. In the case of goods possession may ordinarily be relied on as proof of full ownership; in the case of land, the person in ostensible possession is very seldom the owner, being usually only a tenant, paying rent to someone else. Even the person to whom the rent is paid is in many cases—probably, in England, in most cases—not the full owner, but only a life owner, or a trustee, whose powers of disposing of the property are of a strictly limited nature. Again, goods are very seldom the subject of a mortgage, whereas land has from time immemorial been the frequent subject of this class of transaction. Evidently, therefore, some sort of inquiry is necessary to enable a purchaser to obtain certainty that the land for which he pays full price is not subject to an unknown mortgage or charge which, if left undiscovered, might afterwards deprive him of a large part or even the whole of its value. Again, the probability of serious consequences to the purchaser ensuing from a mistake as to title is infinitely greater in the case of land than in the case of goods. Before the rightful owner can recover misappropriated goods, he has to find out where they are. This is usually a matter of considerable difficulty. By the time they have reached the hands of a bond fide purchaser all chance of their recovery by the true owner is practically at an end. But with land the case is far otherwise. A dispossessed rightful owner never has any difficulty in tracing his property, for it is immovable. All he has to do is to bring an action for ejectment against the person in possession. For these reasons, among others, any attempt to deal with land on the simple and unsuspecting principles which obtain in regard to goods would be fraught with grave risks. Apart from very early and primitive social conditions, there appear to be only two ways in which the required certainty as to title to land can be obtained. Either the purchaser must satisfy himself, by an exhaustive scrutiny and review of all the deeds, wills, marriages, heirships and other documents and events by which the property has been conveyed, mortgaged, leased, devised or transmitted during a considerable period of time, that no loophole exists whereby an adverse claim can enter or be made good—this is called the system of private investigation of title—or the government must keep an authoritative list or register of the properties within its jurisdiction, together with the names of the owners and particulars of the encumbrances in each case, and must protect purchasers and others dealing with land, on the faith of this register, from all adverse claims. This second system is called Registration of Title. To these two alternatives may perhaps be added a third, of very recent growth—Insurance of Title. This is largely used in the United States. But it is in reality only a phase of the system of private investigation. The insurance company investigates the title, and charges the purchaser a premium to cover the expense and the risk of error. Registration of deeds is an adjunct of the system of private investigation, and, except in England, is a practically invariable feature of it. It consists in the establishment of public offices in which all documents affecting land are to he recorded—partly to preserve them in a readily accessible place, partly to prevent the possibility of any material den d or document being dishonestly concealed by a vendor. Where registration is effected by depositing a full copy of the deed, it also renders the subsequent falsification of the original document dangerous. Registration of deeds does not (except perhaps to a certain extent indirectly) cheapen or simplify the process. of investigation—the formalities at the registry add something to the trouble and cost incurred—but it prevents the particular classes of fraud mentioned. The history of land registration follows, as a general rule, a fairly uniform course of development. In very early times, and in small and simple communities, the difficulty afterwards found in establishing title to land does not arise, owing to the primitive habit of attaching ceremony and publicity to all dealings. The parties meet on the land, with witnesses; symbolical acts (such as handing over a piece of earth, or the bough of a tree) are performed; and a set form of words is spoken, expressive of the intention to convey. By this means the ownership of each estate in the community becomes to a certain extent a matter of common knowledge, rendering fraud and mistake difficult. But this method leaves a good deal to be desired in point of security. Witnesses die, and memory is uncertain; and one of the earliest improvements consists in the establishment of a sort of public record kept by the magistrate, lord or other local authority, containing a series of contemporary notes of the effect of the various transactions that take place. This book becomes the general title-deed of the whole community, and as long as transactions remain simple, and not too numerous, the results appear to be satisfactory. Of this character are the Manorial Court Rolls, which were in the middle ages the great authorities on title, both in England and on the continent. The entries in them in early times were made in a very few words. The date, the names of the parties, the name or short verbal description of the land, the nature of the transaction, are all that appear. In the land registry at Vienna there is a continuous series of registers of this kind going back to 1368, in Pragueto 1377, in Munich to 1440. No doubt there are extant (though in a less easily accessible form) manorial records in England of equal or greater antiquity. This may be considered the first stage in the history of Land Registration. It can hardly be said to be in active operation at the present day in any civilized country—in the sense in which that term is usually understood. Where dealings become more numerous and complicated, written instruments are required to express the intentions of the parties, and afterwards to supply evidence of the landowner's title. It appears, too, that as a general rule the public books already described continue to be used, notwithstanding this change; only (as would be expected) the entries in them, once plain and simple, either grow into full copies of the long and intricate deeds, or consist of mere notes stating that such and such deeds have been executed, leaving the persons interested to inquire for the originals, in whose custody soever they may be found. This system, which may be regarded as the second stage in the history of land registration, is called Registration of Deeds. It prevails in France, Belgium, parts of Switzerland, in Italy, Spain, India, in almost all the British colonies (except Australasia and Canada), in most of the states of the American Union, in the South American republics, in Scotland and Ireland, and in the English counties of Yorkshire and Middlesex. Where it exists, there is generally a law to the effect that in case of dispute a registered deed shall prevail over an unregistered one. The practical effect is that a purchaser can, by searching the register, find out exactly what deeds he ought to inquire for, and receives an assurance that if, after completion, he registers his own conveyance, no other deeds—even if they exist—will prevail against him. The expenses and delays, not to mention the occasional actual losses of property through fraud or mistake, attendant on the system of making every purchaser responsible for the due examination of his vendor's title—whether or not assisted by registration of deeds—have induced several governments to establish the more perfect system of Registration of Title, which consists in collecting the transactions affecting each separate estate under a separate head, keeping an accurate account of the parcels of which each such estate is composed, and summarizing authoritatively, as each fresh transaction occurs, the subsisting rights of all parties in relation to the land itself. This system prevails in Germany, Austria, Hungary, parts of Switzerland, the Australasian colonies, nearly the whole of Canada, some of the states of the American Union, to a certain extent in Ireland, and is in course of establishment in England and Wales. The Register consists of three portions:— (1) The description of the land, usually, but not necessarily, accompanied by a reference to a map; (2) the ownership, giving the name and address of the person who can sell and dispose of the land; and (3) the encumbrances, in their order of priority, and the narifes of the persons for the time being entitled to them. When any fresh transaction takes place the instrument effecting it is produced, and the proper alterations in, or additions to, the register are made: if it be a sale, the name of the vendor is cancelled from the register, and that of the purchaser is entered instead; if it be a mortgage, it is added to the list of encumbrances; if a discharge, the encumbrance discharged is cancelled; if it is a sale of part of the land, the original description is modified or the plan is marked to show the piece conveyed, while a new description or plan is made and a new register is opened for the detached parcel. In the English and Australian registries a " land certificate " is also issued to the landowner containing copies of the register and of the plan. This certificate takes the place more or less of the old documents of title. On a sale, the process is as follows: The vendor first of all produces to the purchaser his land certificate, or gives him the number of his title and an authority to inspect the register. In Austria and in some colonial registries this is not necessary, the register being open to public inspection, which in England is not the case. The purchaser, on inspecting this, can easily see for himself whether the land he wishes to buy is comprised in the registered description or plan, whether the vendor's name appears on the register as the owner bf the land, and whether there are any encumbrances or other date. Lord Cairns again introduced this bill (with some modificaburdens registered as affecting it. If there are encumbrances, tions) in 1874, but it had to be dropped. In 1875 Lord Cairns's Land Transfer Act of that year was passed, which was much the same as the register states their amount and who are entitled to them. the former bill, but without compulsion. This act had no better The purchaser then usually' prepares a conveyance or transfer success in the way of voluntary general adoption than the act of of the land (generally in a short printed form issued by the 1862, but as its adoption has since been made compulsory, its pro-registry), and the vendor executes it in exchange for the purchase visions are important. Its most noticeable feature, from a practical point of view, is the additional prominence given to an expedient money. If there are mortgages, he pays them off to the persons called " Possessory " registration (which also existed under another named in the register as their owners, and they concur in a name in Lord Westbury's Act), whereby is removed the great initial discharge. He then presents the executed instruments at the difficulty of placing titles on the register in the first instance. Two registry, and is entered as owner of the land instead of the vendor, sorts of registration were established, "Absolute "and " Possessory." the mortgages, if any, being cancelled. Where "land certificates " The effect of an absolute registration was immediately to destroy all g claims adverse to the registered title. But this was only to be granted are used (as in England and Australia), a new land certificate is on a regular investigation of title, which, though not so strict as under issued to the purchaser showing the existing state of the register the former act, yet necessarily involved time and cost. Possessory and containing a copy of the registered plan of the land. The registration, however, was to be granted to any one who could show a prima facie title—a quick and cheap process. But the effect above is only a brief outline of the processes employed. For of such registration would not be immediately felt. It would not further information as to practical details reference may be destroy existing adverse claims. It would only prevent new diffimade to the treatises mentioned at the end of this article. culties from arising. In course of time such a title would be practic- England and Wales.—The first attempt to introduce general regis- ally as good as an absolute one. In 1885 the duke of Marlborough tration of conveyances appears to have been made by the Statute of introduced a bill for a registry of titles, and in the following vacation Enrolments, passed in the 27th year of Henry VIII. But this was Lord Davey wrote three letters to The Times advocating the same soon found to be capable of evasion, and it became a dead letter. thing on the general lines afterwards adopted. In 1887 Lord A Registration Act applying to the counties of Lancaster, Chester Halsbury, by introducing his Land Transfer Bill, commenced a and Durham was passed in Queen Elizabeth's reign, but failed for struggle with the opponents of reform, which, after ten years of a want of providing the necessary machinery for its observance. almost continuous effort, resulted in the passing of his act of 1897, The subject reappeared in several bills during the Commonwealth, establishing compulsory registration of title. Lord Halsbury intro-but these failed to pass, owing, it would seem, to the objection of duced bills in 1887, 1888 and 1889. Lord Herschell, who succeeded landowners to publicity. In 1669 a committee of the House of Lords him after the change of government, introduced bills in 1893+ 1894 reported that one cause of the depreciation of landed property was and 1895, these last three being unanimously passed by the House of the uncertainty of titles, and proposed registration of deeds as a Lords on every occasion. The bill of 1895 reached committee in the remedy, but nothing was done. Commons, but was stopped by the dissolution of parliament. In During the next thirty years numerous pamphlets for and against 1897 Lord the samse bill( twho d to hhad returne dific to noolWhich cauin sed i the certain a general registry were published. In 1704 the first Deed Registry Incorporated Law Society to withdraw its opposition in the House Act was passed, applying to the West Riding of Yorkshire. In 1707 of Commons, and the act was finally passed on the last day of the the system was extended to the East Riding, and in 1708 to Middlesex. session. Under It the Privy Council has power to issue orders These Middlesex and Yorkshire registries (modified considerably in declaring that on a certain date registration of title is to be corn- practice, but not seriously in principle, by the Yorkshire Registries pulsory on sale in a given district. The effect of such an order is Acts 1884, 1885, and Land Registry [Middlesex Deeds] Act 1891) to oblige every purchaser of land in the district after that date to remain in operation, and are greatly valued by the smaller pro- register a "possessory title," immediately after his purchase. The prietors and mortgagees, owing to the security against fraud which compulsory provisions of the act extend to freeholds and (by a rule th they provide at a trifling cost. The selection of these counties seems afterwards made) to leaseholds having forty years to run. No order capricious: its probable explanation is that in them trade was except the first can be made, save on the request of a county council. flourishing, and the fortunes made were frequently invested in land, The first order was made in July 1898. It embraced the whole and a protection against secret encumbrances was most in demand. administrative county of London (including the City of London), In 1728 and 1732 Surrey and Derby petitioned, unsuccessfully, for proceeding gradually by groups of parishes. Under this order local registries. In the North Riding Deed Registry Act was upwards of 122,000 titles had been registered by 1908, representing passed. In 1739 a General Registry bill passed the Commons, but a value exceeding one hundred millions sterling. did not reach the Lords. Next year the Lords passed a similar bill, Under the oeration of this act, at the expense of a slightly but it did not reach the Commons. In 1759 a General Registry bill increased cost on all transactions during a few years, persons dealing was thrown out by a majority of one. In 1784 Northumberland un- with land in the county will ultimately experience great relief in the successfully petitioned for a local registry. After this the subject ect matter both of cost and of delay. The costs of a sale (including went almost out of sight till the Real Property Commission of 1828. professional assistance, if required) will ultimately be for the vendor They reported in 1830 in favour of a general register of deeds, but about one-fifth, and for the purchaser (at the most usual values) less though several bills were introduced, none were passed. In 1846 e a than half, of the present expenses. The delay will be no more than committee of the House of Lords reported that the marketable value in dealings with stock. Mortgagees will also be protected from risks of real property was seriously diminished by the tedious and ex- of fraud, which at present are very appreciable, and of which the pensive process of the transfer of land, and that a registr-attempt title to Redgrave and Richards cases are recent examples. Further par- real p [operty was essential to the success of any to titulars of the practical operation of the acts will be found in the simplify the system of conveyancing. In 1850 a Royal Commission Registrar's Reports of 1902 and 1906, embracing the period from reported in favour of a general register of deeds, and in 1851 Lord 1899 to 1905 inclusive, with comments on the general position, Campbell introduced a bill accordingly, but it was opposed, and was suggestions for future legislation, &c. In the autumn of 1908 dropped. In 1853 Lord Cranworth introduced a bill, which passed a Royal Commission under the chairmanship of Lord St Aldwyn, the Lords but not the Commons. was appointed to inquire into the working of the Land Transfer Hitherto only registration of deeds had been considered, but in Acts. The evidence given before them in October, November and 1854 a new Royal Commission was appointed, which reported in December 1908 comprised a general exposition by the registrar of the 1857 7 in favour of a register of title. The scheme they recommended origin and history of the acts, and the principles of their working, was substantially embodied in a bill introduced in 1859 by Lord and suggestions for amendments in certain details. It also coin-Cairns—then Solicitor-General—but a dissolution stopped its pro- prised the experience of several landowners and others, who had gress. In 1862 Lord Westbury had the satisfaction of carrying the found the acts highly beneficial, and who had carried through a first act for registration of title. This act enabled any landowner large number of dealings under absolute titles, without professional to register an indefeasible title on production of strict proof. The help, very quickly, and at a greatly reduced cost. proof required was to be such as the court of chancery would force Scotland.—In Scotland registration of deeds was established bf unwilling purchaser to accept. Only a few hundred titles were an act of 1617, which remained unaltered till 1845. There are alsd registered under this act, and in 1868 a Royal Commission was ap- acts of 1868 and 1874. The registry is in Edinburgh. Deeds are pointed to inquire into the causes of its failure. They reported in registered almost invariably by full copy. The deeds are indexed 1870, making various suggestions of detail, and especially adverting according to properties—each property having a separate number to the great expense caused by the strictness of the official investiga- and folio called a " search sheet," on which all deeds affecting it are lion of title before a property could be admitted to the register. referred to. About 40,000 deeds are registered annually. The In the same year Lord Hatherley introduced a Transfer of Land Bill, consequence of the existence of this register is to render fraud in title but it was not proceeded with. In 1873 Lord Selborne introduced a absolutely unknown. Forty years is the usual period investigated. Land Titles and Transfer Bill, following more or less the recom- The investigation can, if desired, be made from the records in the mendations of the report of 187o, proposing for the first time com- pulsory registration of title upon every next sale after a prescribed ' In Prussia all conveyances are verbal, made in person or by attorney before the registrar, who forthwith notes them in his books. 2 This summary is an abridgement (with permission) of pp. 7 to 26 of Mr R. Burnet Morris's book referred to at the end of this article. registry alone. The fees are trifling, but suffice to pay the expenses registry. All ordinary dealings are transacted with the greatest of the office, which employs between 70 and 8o permanent officers in addition to temporary assistants. The total costs of conveyancing amount, roughly speaking, to between 1 and 2% on the purchase money, and are equally shared between vendor and purchaser. In 1906 a royal commission was appointed, with Lord Dunedin as chairman, to inquire into the expediency of instituting in Scotland a system of registration of title. Australia and New Zealand.—These states now furnish the most conspicuous examples in the British empire of the success of registration of title. But prior to the year 1857 they had only registration of deeds, and the expense, delay .and confusion resulting from the frequent dealings appear to have been a crying evil. Sir Robert Torrens, then registrar of deeds in South Australia, drew up and carried an act establishing a register of title similar to the shipping register. The act rapidly became popular, and was adopted (with variations) in all the other Australasian states in the years 1861, 1862, 187o and 1874. Consolidating and amending acts have since been passed in most of these states. Only absolute title is registered. All land granted by government, after the passing of the several acts, is placed on the register compulsorily. But voluntary applications are also made in very large numbers. It is said ordinary purchasers will not buy land unless the vendor first registers the title. The fees are very low—£I to £3 is a usual maximum—though in some states, e.g. Victoria, the fees rise indefinitely, ad valorem, at a rate of about 1os. per £f000. Insurance funds are established to provide compensation for errors. At a recent data they amounted to over £400,000, while only £14,600 odd had been paid in claims. All the registries pay their own expenses. Bankers and men of business generally are warm in their appreciation of the acts, which are popularly called Torrens Acts, after their originator, who, though not a lawyer, originated and carried through this important and difficult legal work. Canada.—Registration of title was introduced in Vancouver Island in 1861, was extended to the rest of British Columbia in 187o, and was in 1885 adopted by Ontario, Manitoba and the North-West Territories. Only Quebec, Nova Scotia, New Brunswick and Prince Edward Island retain the old English system, plus registration of deeds. The three provinces which have adopted registration of title have adopted it in somewhat different forms. In British Columbia it is similar to Lord Westbury's Act of 1862. The North-West Territories follow closely the Torrens Acts. The Ontario Act is almost a transcript of Lord Cairns's Act of 1875. The fees are very low, seldom exceeding a few shillings, but all expenses of the office are paid from this source. The Ontario registry has five district offices, as well as the central one at Toronto. This is apparently the only colonial registry not open to public inspection. Other British Colonies.—In the other British colonies private investigation of title, plus registration of deeds, is the prevailing system, but registration of title has been introduced in one or two instances. Germany and Austria-Hungary.—By far the most important examples of registration of title at present existing—because they show how the system works when applied to large European communities, with all the intricacies and complications of modern civilized life—are to be found in Germany and Austria-Hungary. In some parts of these countries registration of title has been established for several centuries—notably in Bohemia; in most parts it has existed for the greater part of the 19th century; in some districts, again, notably Tirol and the Rhine Provinces, it is still in course of introduction. In all cases it appears to have been preceded by a system of deed registration, which materially facilitated its introduction. In some cases, Prussia, for instance, the former registers were kept in such a way as to amount in themselves to little short of a registry of title. Very low scales of fees suffice to pay all official expenses. In Prussia the fees for registering sales begin at 5d. for a value of £1; at £20 the fee is 2s 7d.; at £loo it is 7s. 3d.; at £1000 it is £1, 1os.; at £5000, £4, 5s., and soon. In case of error, th@ officials are personally liable; failing these, the state. Other states are very similar. In 1894, 1,159,995 transactions were registered in Prussia. In 1893, 938,708 were registered in Austria. Some idea of the extent to which small holdings prevail in these countries may be gathered from the fact that 36% of the sales and mortgages in Austria were for under £8, 6s. 8d. value—74% were for under £5o. Owing to the ease and simplicity of the registers, it is not always necessary to employ professional help. When such help is required, the fees are low. In Vienna £1 is a very usual fee for the purchaser's lawyer. £10 is seldom reached. In Germany the register is private. In Austria it is open to public inspection. In these registers may be found examples of large estates in the country with numerous charges and encumbrances and dealings therewith; peasants' properties, in numerous scattered parcels, acquired and disposed of at different times, and variously mortgaged; town and suburban properties, flats, small farms, rights to light and air, rights of way, family settlements, and dealings of all sorts—inheritances and wills, partitions, bankruptcies, mortgages, and a great variety of dealings therewith. The Continental systems are usually administered locally in districts, about2o to 30 m. across, attached to the local law courts. In Baden and Wurttemberg every parish (commune) has its own expedition. Security is absolute.' The United States.—Up to a late date the ordinary English system, with registration of deeds, was universal in the United States. The registries appear to go back practically to the original settlement of the country. Registration is by full copy. It is said that in the large towns the name indexes were often much overgrown owing to the want of subdivision into smaller areas corresponding to the parishes into which the Middlesex and Yorkshire indexes are divided. In the New York registry not many years ago 25,000 deeds were registered annually. At the same time 35,000 were registered in Middlesex. Complaints are made by American lawyers of want of accuracy in the indexes also. In 1890 an act was passed in New York for splitting the indexes into " blocks," which is believed to have given much relief. The average time and cost of an examination of title, as estimated by a committee of the Bar Association of New York in 1887, was about thirty days and 150 dollars (about £30). A later State Commission in Illinois estimates the law costs of a sale there at about 25 dollars (£5) ; the time may run into many months. Allusion has already been made to the insurance of title companies. The rates of insurance are substantial, e.g. 65 dollars (£13) on the first 3000 dollars (£600), and 5 dollars (£1) on each additional moo dollars (£200). This would amount to £20 on £2000 value, £110 on £20,000, £510 on £100,000. The guarantee given is very ample, and may be renewed to subsequent owners at one-third of the fee. Registration of title has lately been introduced, on a voluntary basis, into the states of California, Oregon, Illinois, Massachusetts, Minnesota and Colorado, and also into Hawaii and the Philippines. France.—In France registration of deeds is universal. Sales, mortgages, gifts and successions; easements, leases of over eighteen years, and transactions affecting the land to the extent of three years' rent may lose priority if not registered. Wills need not be registered. Mortgages must be re-registered every ten years. Purchase deeds are registered by filing full copies. Registries are established in all the considerable towns. The duty on sales amounts to the high figure of about 61% on the value. Part of this is allocated to registration, in addition to which a fixed fee of one franc, and stationers' charges averaging 6 francs are also chargeable. The title can usually be fully investigated from the documents in the registry. Official searches for mortgages are commonly resorted to, at a cost of about 5 francs. Under the monarchy the land system was practically copyhold tenure, but greater validity was attached to the Court Rolls than was the case in England. The present system was established by a law of 1790 after the abolition of seigniorial institutions in 1789. This was modified by the Code Napoleon, and further perfected by a law of 1855. The average value of transactions in France is very small. Probably at the present time four-fifths of the properties are of under £25 value. The costs of a sale for 200 francs (£8) would be about as follows: Duty, 13 fr.; Notary (1%), 2 fr.; expenses, 12 fr.—total 27 fr. A sale for woo fr. (£40) would cost about 110 fr. Taking all values, the cost of conveyance and duty reaches the high figure of Io% in the general run of transactions. The vendor as a rule has no costs. Indefeasible title is not obtainable, but frauds are almost unknown. A day or two usually suffices for all formalities. On large sales a further process known as the " purge " is undergone, which requires a few weeks and more expense, in order to guard against possible claims against which the deed registries afford no protection, such as dowries of wives, claims under guardian-ships, &c. A commission (Commission Extraparlementaire du Cadastre), appointed in 1891 to consider the revision of the government cadastral maps (which are in very serious arrear) and the establishment of registration of title, collected, in nine volumes of Coinptes Rendus, a great mass of most interesting particulars relating to land questions in France, and in 1905 reported in favour of the general establishment of a register of title, with a draft of the necessary enactment. ' Full information as to the German and Austrian systems is to be found in a Parliamentary Report of 1896 (C.-8139) on the subject. (Melbourne). Prussia—Oberneck, Die Preussischen Grundbuchgesetze (Berlin). Austria—Das allgemeine Grundbuchsgesetz, &c. (Vienna) ; Bartsch, Das Oesterreichische allgemeine Grundbuchsgesetz in seiner practischen Anwendung (Vienna). Saxony—Siegmann, Sachsische Fivpothekenrecht (Leipzig). Statistics—Oesterreichische Statistik (Grundbuchs-amter) (Vienna, annually). (C. F.-BR.)
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Why dose it take so long to complete the land title paper work,and the actual cash (which was pre-approved prior to sale)to flow. I know interest is charged against the buyer, but 3 weeks on a pre-approved deposit,a large cash down payment and a pre-approved mortgage seems to be a way too long. W.A.Moore
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