Analysis: The recurring Cuban claims question, part 2

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Palli column headBy José M. Pallí, esq.

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 1940s, mean for your prospects of recovering title to that property as one of Aunt Yuya’s heirs?

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

And it may even give you standing before a U.S. court, although the required standing under good and sound legal principles should be reserved to those who were U.S. citizens invested in Cuba when the Revolution took their properties. Yuya’s title may also give you standing before a special tribunal that could be set up in the United States 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.

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

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

Key is the law of the land

The problem you and your aunt Yuya, together with all “Cubans” whose assets 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 U.S. law. This is not a quirk of Cuba’s revolutionary laws: it is a universal principle of International Private Law. 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 1940s. 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 Público de la Propiedad Inmueble.

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

If, as I believe is the case, Cuba’s current land title recording system is effectively patterned after the one in place before the Cuban Revolution, it should be very easy to search for 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 parcel of land. No need to work through personal (as in Buyer – Seller) indexes, as we do in our less sophisticated U.S. public records system.

I say “If” because, even having personally done in situ title searches in almost every nation in the Western Hemisphere and beyond, I have never undertaken such a search in a Cuban title recording office because of the constraints of being a U.S. subject held hostage by the absurdity of the U.S. 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 U.S. subject like me can now undertake such a title search in a Cuban Registro Público de la Propiedad, will I be able to do so?

The word Público 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 Unted States is not exempt — to restrict access, sometimes requiring a legitimate reason.

In the case of Cuba, because of the heavily politicized U.S.-Cuba relationship and the existence of the kind of claim-driven client I describe in this humble writing is 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 or whose property you are using 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 any 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 U.S. 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.

Cuba has opened up archives to concerned foreign investors

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”.

José Manuel Pallí is president of Miami-based World Wide Title. He can be reached a

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