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Opinions of Saturday, 10 December 2005

Columnist: Tsikata, P. Y.

Our Land Tenure System, Our Development Bane--A Rejoinder

I am returning to the above subject today, as promised in my previous article ( http://www.ghanaweb.com/ ) of November 06, 2005, to make the case for a REGULATORY AGENCY that could infuse some measure of discipline and orderliness into our land tenure system as we presently know it. Nothing makes the case for a regulatory agency more compelling than the reports in the Ghanaian press that there are over 60,000 land cases currently clogging the court system in our country. Nothing more compelling! Indeed, not a single day passes in Ghana today that you don't hear of some brand new land fraud case somewhere. How long can we afford to remain literally frozen in the status quo of an antiquated system? How long? Can we learn from countries like China, South Korea and India which have literally copied by rote from the developed world and are running away with their economies today?

If you ask the average Ghanaian or even a real estate agent in Ghana what the real estate laws are in our country, you will be surprised nobody seems to have a clue! And if you fast forward to find out what regulatory agency there is that you can report to if you are defrauded in a land case, nobody can point to one! Don't be surprised to find out that the real estate agent in Ghana does not need a license to practice his craft: He doesn't even need any specialized education to do his job. No, he doesn't! Is it surprising that the real estate industry and, by extension, our land tenure system have become the "wild, wild, west"? Folks, seriously, if we require lawyers, doctors, accountants and engineers to have some specialized education and get licensed before practicing in Ghana, why don't we have the same standards for those who deal with our land and housing issues? If we require even automobile drivers to be licensed to drive on our roads, why isn't it appropriate to license those who deal in the most precious and most permanent asset our country has--land?

Let's face it: The reality on the ground is that for the last 48 years of Independence, we as a country have not seriously looked at real estate as a profession. No, we haven't! Perhaps, it is only within the last ten years or so that we have barely woken up from our slumber, thanks to entrepreneurs like Stephanie Baeta-Ansah of HFC Bank fame and William Opare of GREDA. We have not looked at real estate -- and by extension, our land tenure system -- the same way we've looked at Law, Medicine, Accountancy and Engineering. If you doubt it, show me how many real estate schools we have in Ghana today! The Department of Land Economy at UST? Which else? How many schools in Ghana teach real estate subjects? Where in the world can we find all the real estate laws in Ghana for reference purposes? Does anybody know? How many professional real estate associations do we have in our country? GREDA (Ghana Real Estate Developers Association)? Which else? Which government agency in Ghana regulates the real estate industry and enforces the real estate law (if any) in order to protect the general public? Is it any surprising that, for so many years now in our country, a plot of land could be sold to ten different buyers and the seller could pocket the monies and get away with it? Is it surprising?

As I did in my previous article, I will use a living example from the system I am most familiar with to buttress my case for a REGULATORY AGENCY that will police, license, and regulate the real estate industry and our land tenure system in order to enforce the real estate laws (if any) in our country. I will pick my example from the state of California, the state which has led all the other 49 states in the US in real estate innovation.

It was California's Legislature that enacted the nation's first Real Estate Law in 1917. Back then, it was truly the "wild, wild, west" as we know it from the land tenure system we have in Ghana today. As the years have passed, California has become the bellwether and the gold standard by which real estate trends are measured in the US today. With a population of 36 million people, real estate issues dominate the landscape and the very vibrant California economy everyday.

Just like all the other 49 states in the union, there is a state agency in charge of real estate -- and by extension, land tenure -- issues. In California, this agency is called the Department of Real Estate, popularly known here as the DRE. A Real Estate Commissioner is appointed by the Governor of the state to serve as the chief executive officer of this agency. The Commissioner, in turn, by law, appoints a 10-member Real Estate Advisory Commission, six of whom are real estate brokers and the remaining four from the general public. The revenue necessary to run this agency is NOT from the public domain. No! It is derived from all the fees charged by the DRE for all the real estate licenses, land subdivision fees and the fees charged for the several permits issued to those who want to develop the land. The Commissioner's role is to facilitate the administration and enforcement of the Real Estate Law. To lend teeth to the enforcement of this law, the Commissioner is empowered to issue regulations known as the Regulations of the Real Estate Commissioner, which regulations have the force and effect of law. The Real Estate Law is literally the Bible for all real estate practitioners in California and it can--yes it can!--all be found in a beautiful handbook called The Real Estate Law Book! The Commissioner also has the authority to hold formal hearings to decide issues involving real estate licensees or license applicants. Such hearings may result in disciplinary actions such as revocation, suspension or denial of real estate licenses. The Commissioner has the sole authority to issue Desist and Refrain orders to stop activities which are in violation of real estate law. Truth be told, there is even a quarterly bulletin from the DRE in which all violations of real estate law, suspensions, revocations and denials of real estate licenses are published very religiously for public consumption! If you don't want to jeopardize your real estate career and your future, then better behave yourself and not get on that list only to incur the wrath of the public, the embarrassment to your employers and the scorn of your peers!

In a nutshell, it is the Commissioner's responsibility to enforce the real estate law to achieve maximum protection for real estate consumers. The protection shield for the consumer is mightily embedded in what is known as a Recovery Account, set up as far back as 1964, out of which members of the public who have been defrauded by real estate licensees could be compensated. Funded from a portion of the fees paid by real estate licensees to the DRE, the Recovery Account idea has served the people of California extraordinarily well. What better insurance policy do you need than knowing that even if you end up being defrauded by a real estate agent, you will be compensated by a regulatory agency that will eventually discipline that agent? What more peace of mind do you need than that? Since its inception in 1964, the Recovery Account in California has paid over $33 million to members of the public as compensation for real estate fraud. Beware all land guards and multiple land fraudsters in Ghana! Your day of reckoning is coming!

Yes, there is no question that regulatory agencies all over the US have brought a lot of sanity, orderliness, discipline, education and legal enforcement into real estate practice. If we truly want to eliminate all the bribery, the corruption and the fraud currently plaguing our land tenure system, we must look elsewhere to see how others have done it. As my previous article has shown, there is no question that it is these very sound practices that have created the healthy economic environment that has enabled real estate to become the foundation of the US economy today. No question!

Real estate fraud in Ghana is an abomination. The horror stories are legendary! Even our courts don't have a clue how to resolve the 60,000 land cases or so currently clogging their system. Can we deny that there is a better way elsewhere we could copy from? If it works for California, a state of 36 million people, it could work for Ghana, a country of only 20 million, too. Need I say more?



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