138. Actions for recovery of damages
Feedback & supportAny person who is deprived of land or sustains loss or damage through any omission, mistake or misfeasance of the Registrar, or any member of his staff, in the bringing of the land under the provisions of this Act or in the registration of any instrument, and who is barred by this Act from bringing an action of ejectment or other action for the recovery of land, may bring an action for the recovery of damages against the assurance fund.
land
“land” means the surface of any defined parcel of the earth, and all substances thereunder, and so much of the column of air above the surface as is reasonably necessary for the proprietor’s use and enjoyment, and includes any estate or interest in land and all vegetation growing thereon and structures affixed thereto. Subject to any provision to the contrary the proprietorship of land includes natural rights to air, light, water and support and the right of access to any highway on which the land abuts;
In any action for the recovery of damages or compensation, whether for deprivation or for error or otherwise, the Court shall take into consideration the fact that the claimant’s own neglect, default or incaution may have caused or contributed to the deprivation, loss or damage, and in any such case may withhold or abate damages or compensation accordingly.
For the purposes of this section —
a person who could bring an action for the recovery of land pursuant to section 137 shall be deemed not to have been deprived of that land; and
any person who has obtained a certificate of title pursuant to section 8 shall be deemed to be the person by whom the land in that certificate of title was brought under the provisions of this Act and who derived benefit therefrom.
The assurance fund is not liable to compensate a party to any action authorised by this Act unless the Registrar was a defendant therein, or was served with 14 days’ notice thereof.
assurance fund
“assurance fund” means the assurance fund constituted under section 134;
On receipt of notice, the Registrar is entitled to appear in any such action and may offer to compensate any party to the action out of the assurance fund.
Registrar
“Registrar” means the Registrar of Titles appointed pursuant to this Act.
On any such offer being made further action shall be limited to determination of the compensation to be paid.
Except as provided by subsection (1), no action shall be brought against the assurance fund by any person deprived of land or sustaining loss or damage through —
the bringing of the land under the provisions of this Act; or
the registration of any wrongful or erroneous instrument,whether the land was, or is, brought under the provisions of this Act or the instrument was or is registered on, before or after 1st December 1970 (when that subsection came into operation).[134