The recurrent Cuban claims question: Part Two

What does having a copy of the title document whereby your aunt Yuya took title to a parcel of land in Cuba back in, say, the forties, mean for your prospects of recovering title to that property as one of Aunt Yuya’s heirs?

Well, having the title document at hand makes your position as an eventual claimant slightly better, if nothing else in the sense that you have a better chance of convincing yourself and others (even some who may be bold enough to buy your “claim” from you) that you have a valid expectation to be reinstated as the owner of the land.

And, as already stated, it may even give you standing before an American court (or a special tribunal that could be set up in the US to process claims like yours: never underestimate the per$ua$$ivene$$ of the pro-embargo lobby, a very active species in our yet to be drained swamp), although the required standing under good and sound legal principles should be reserved to those who were American citizens invested in Cuba when the Revolution took their properties from them.

To clarify, this little essay does not delve in the prospects for those “certified claims” held by American “victims” of revolutionary upheaval: my assumption is aunt Yuya was not a US citizen at the time her property was taken from her.

Even the legislative bill authored by Arkansas representative Rick Crawford you may have recently read about in the newspaper, the one allowing for the seller financed sales of agricultural products to Cuba, distinguishes between the certified claims of those who were American citizens at the time their property was taken by Cuba, and those who were not. The bill calls for an excise tax of 2 per cent on all such sales to Cuba, with the funds thus collected to be used by the Treasury Department to compensate those certified claimants.

The problem you and your aunt Yuya, together with all “Cubans” who were confiscated and/or expropriated by the “Cuban” Revolution face is that it is Cuba’s law, “the law of the land” where the land is situated, that governs who owns what in Cuba, not American law. And this is not a quirk of Cuba’s revolutionary laws: it is a universal principle of International Private Law (Derecho Internacional Privado or, as we call it in the US, “Conflict of Laws”), which is not to say our pro-embargo lobbyists will ever be deterred by it.

This means it is not the piece of paper you hold in your hand (aunt Yuya’s title document) that determines who presently owns the parcel of land she acquired back in the forties. What counts is the mechanism through which Cuba, under its laws, assigns or recognizes (publicizes) the ownership of interests in land, meaning the contents of the entries found at the Registro Publico de la Propiedad Inmueble .

Which brings us back to the “America-centric” due diligence efforts a prospective American investor seeking to open a store or set up an office in Cuba will adamantly want to pursue, specially if he is advised by an “America-centric” minded lawyer.

If, as I believe is the case, the land title recording system Cuba now has is effectively patterned after the one in place before the Cuban Revolution, it should be very easy to search those records, since such a Spanish style recording system is built upon the concept of the “folio real”, which concentrates in a single recording entry all the relevant information pertaining to each single parcel of land. No need to work your way through personal (as in Buyer – Seller) indexes as we do in our less sophisticated American public records system.

And I say “If” because, even having personally done title searches, in situ, in almost every nation in our Western Hemisphere, and even beyond, I have never undertaken such a search in a Cuban title recording office (again, because of the constraints of being a US subject held hostage by the absurdity of the Cuban embargo laws). I visited one such office years back, though, and I could verify the system follows the “folio real” principle.

So let’s assume the lobbyists’ swamp is thoroughly drained and a US subject like me can now undertake such a title search in a Cuban Registro Publico de la Propiedad , will I be able to do so?

The word “Publico” in the recording office’s name should mean that anybody should have access to the information contained in the entries kept there. Unfortunately, there is a trend worldwide –and the US is not exempted from it- to restrict accessibility to otherwise public records, sometimes requiring that those who want to access them show a legitimate reason to do so.

In the case of Cuba, because of the heavily politicized issue of the US-Cuba relationship and the fact the existence of the kind of claim prone client I describe in this humble writing is, obviously, common knowledge, I would not be surprised if access is denied to someone like me.

But you –the prospective foreign storeowner in Cuba- can, of course, give it a try, since you clearly have a legitimate interest in knowing if the person you are buying the land from is the owner of record. And, if you cannot do it yourself, you can always retain a good Cuban lawyer, of which there are plenty.

But please, don’t ask that Cuban lawyer to search back beyond what is presently relevant to the determination of who holds interests (not just the ownership rights) over the particular land parcel you are interested in. The Cuban lawyer you hire is subject to Cuba’s laws, just as I am subject to American laws, even the utterly nonsensical Helms Burton and its maddening regulatory progeny. And the rights of someone like aunt Yuya are simply irrelevant in Cuba today, because laws that have been in place, in many cases, for over half a century, have superseded them.

Does this mean the prospective investor in Cuban land cannot find out what the past links -even if irrelevant- in the title chain show? Not necessarily. The Cuban government has for many years responded to the concerns of foreign investors in Cuba regarding that past history of the land they want to invest in. They have opened up to them the archives where the old pre-revolutionary title documents -now irrelevant for purposes of Cuba’s present and improving land title recording system- are kept, in order to assuage their fears. In a number of cases, that disclosure has led to the purchase of potential claims like those aunt Yuya’s heirs may entertain.

But Cuba does this from a position of strength, based on their laws which, whether we in Miami like it or not, are the laws of the land.

Cuba does not hide its history of past expropriations or takings. It has even published books telling us what was taken from whom and why in the early revolutionary years.

And Cuba has never turned its back to a discussion of those laws and their consequences as we have systematically done by conditioning such talks to Cuba first becoming Switzerland, as a good friend and colleague of mine likes to say.

In any event, I will try to arrange a visit to one of Cuba’s “registros” the next time I visit the island, in order to perform a dry run (pro bono) of the type of title investigation I have pursued in so many other similar offices around the world.

I will be reporting back to you all once I accomplish that, “believe me”…