LAW OF IMMOVABLE PROPERTY

INTRODUCTION

Dr. Samuel B. Adarkwah Esq.

Lecturer, Faculty of Law, KNUST
 INTRODUCTION

 What is property?

‘The interest, which can be acquired in external objects or things. The things themselves are not, in
a true sense, property, but they constitute its foundation and material, and the idea of property
springs out of the connection, or control, or interest which, according to law, may be acquired in
them or over them.’ C.R. Noyes, in his book The Institution of Property, at p. 357

 This explains why it is possible for conflicting claims to be brought by two or more
‘subjects’ in respect of the same ‘object’ such as land.
 INTRODUCTION
Types of property

 There are two main types of property, namely Tangible and Intangible Property.

 Tangible property generally are physical in nature, e.g. house, etc.

 Intangible property are not physical in nature but are regarded as property because they are

capable of ownership, e.g.………….?

 INTRODUCTION
Personal and Proprietary Rights in Property

A personal right is an entitlement, which a person enjoys against another specific

individual or person. Its central characteristic is that it can only be enforced against that
specific person. It is described as a right in personam.

Personal rights are rights in personam and thus enforceable not against the property, but
against the person who granted the right.
 INTRODUCTION
Proprietary Rights in Property

A proprietary right is a right, which exist in relation to a thing, whether tangible or intangible.
In other words a proprietary right is a right existing in the “res” or thing to which it relates.
Such right is described as a right in rem – in the thing itself.

This means that they are rights enforceable against the actual property itself (here land) rather
than just against the person who granted the right in the first place

 For example a house, which is “owned” by one person may be leased to a tenant and
mortgaged to a bank. In this case the owner, tenant and bank will all enjoy proprietary
rights in the house.

 For example a lease is capable of enduring through changes in ownership and is

enforceable against the new owner.
 INTRODUCTION

Corporeal and Incorporeal hereditaments.

Hereditament signifies rights that are heritable, i.e. capable of passing by way of descent to
successors in title.

Corporeal hereditaments include the physical and tangible characteristics of land. These are the
physical features of land and consist of the physical surface and everything attached to the land.
For example minerals, buildings attached to the surface and plants and trees growing on the land.

Incorporeal hereditaments refer to certain intangible rights which may be enjoyed over or in
respect of land. These are intangible rights existing in the land as a physical entity. Thus
proprietary rights in the land are classified as land. For example lease, easement and mortgage
may all be regarded as land.
 INTRODUCTION

What is Law of Immovable Property?

 It is the branch of law concerned with the relationships which arise between persons in
respect of things.

 The law of immovable property comprises the range of legal rules and principles,
which regulate the proprietary issues concerning that, which is classified as land.
 INTRODUCTION

What is land?

Land has been defined as ‘an area of the earth usually inclusive of improvements, bodies
of water, and natural or man-made objects and extending indefinitely upward or
downward.’ Merriam Webster’s dictionary of law, 2014.

The Land Act, 2020 (Act 1036), section 281 defines land to include ‘the solid surface of
the earth, trees, plant, crops and other vegetation, a part of the earth surface covered by
water, any house, building or structure whatsoever, and any interest or right in, to or over
immovable property.’
 INTRODUCTION

According to Ollennu and Woodman:

‘The term land as understood in customary law has a wider application. It includes the
land itself, i.e. the surface soil, things on the soil, which are enjoyed with it as being part
of it by nature, i.e. rivers, streams, lakes, lagoon, creeks, growing trees like palm and
dawadawa trees or things artificially tied to it like buildings and any structure whatsoever.
It also includes any estate, interest or right in, to or over the land or over any of the other
things which land denotes, i.e. right to collect herbs or snails or to hunt on the land.’
OLLENNU, PRINCIPLES OF CUSTOMARY LAND LAW IN GHANA (1962) at pg. 1.
 INTRODUCTION

Land as defined above include the earth and development on it, the airspace and the space
beneath the earth.

 Land also includes all trees, shrubs, hedges, plants and flowers growing thereon, whether
cultivated or wild.

 water is seen as a species of land.

 See generally; Samuel K. B. Asante. “Interests in Land in the Customary Law of Ghana.
A New Appraisal.” The Yale Law Journal, vol. 74, no. 5, 1965, pp. 848–85,
https://doi.org/10.2307/794709.
 INTRODUCTION

Surface Rights, Rights Above and Below the Surface

The general rule under the common law is that ownership of the surface of land carries
with it rights to what is below the surface and to control of the airspace above.

This is expressed in Latin as: “cuius est solum, eius est usque ad coelum et ad inferos” -kū
´yūs āst sō´lūm ā´yūs āst ūs´kwā ad kœ´lūm (āt ad ēn´fārōs)-(meaning whoever owns the
soil owns everything up to the heavens and down to the depths of the earth). It is also
rendered to means a person entitled to possession of land has exclusive rights upwards to
the sun and downward to the centre of the earth:
 INTRODUCTION

Surface Rights, Rights Above and Below the Surface

Kelsen v. Imperial Tobacco (1957) 2 QB 334.

McNair J granted a mandatory injunction ordering the defendants to remove a sign

protruding from the building on one property into the airspace of the adjoining property.

In so holding, McNair J relied on the decision of Romer J in Gifford v Dent [1926] WN

336 where the judge had taken the view that a sign which was erected on the wall above
the ground floor premises and which projected some four feet, eight inches (ie 1.4 metres)
from the wall constituted a trespass over the plaintiff’s airspace.
 INTRODUCTION

In Bernstein v. Skyviews and General Ltd (1978) QB 479, Skyviews were a

company who took aerial photographs of properties for sale to their owners. Lord
Bernstein complained when he was offered an aerial photograph of his country
home, Coppings Farm, in Kent. He said it was taken without his consent and was
a gross invasion of his privacy.

The court reasoned that trespass was limited to the height at which it was
contemplated that an owner might be expected to make use of the airspace as a
natural incident of the user of his land.
 INTRODUCTION

The court found that, even though Skyviews' aircraft had flown over Lord
Bernstein's property, it did not infringe any of Lord Bernstein's rights to airspace,
and thus no trespass was committed. Lord Bernstein had complained, not that the
aircraft had interfered with his use of his land, but that a photograph was taken.
There was no law against taking a photograph, however, and the taking of a
photograph could not turn an act which was not trespass into trespass.
 INTRODUCTION

The effect of the cuius est solum, eius est usque ad coelum et ad inferos maxim has now
being watered down.

Read the following cases:

Holland v. Hodgson (1872) LR 7 CP 328

Pountney v. Clayton (1883) 11 QBD 820 at 838

Bendal Pty Limited v Mirvac Pty Limited (1991) 23 NSWLR 464

 INTRODUCTION

Quicquid plantatur solo, solo cedit

The common law notion quicquid plantatur solo, solo cedit means whatever is attached to the
ground becomes part of it. Thus ‘fixtures’ attach to the ground and as such become part of the
land.

Fixtures comprise that category of material objects which, when physically attached to the land,
are regarded as becoming annexed to the land. Irrespective of their previous ownership, title to
such objects, thenceforth vests automatically and exclusively in the owner of the land. Fixtures
are regarded as having merged with the ‘land’ by reason of legal metamorphosis, and thus pass
with all subsequent conveyances of the land unless and until lawfully severed from the land.

See Holland v. Hodgson (1872) LR 7 CP 328 at 334.

 INTRODUCTION

Quicquid plantatur solo, solo cedit

If A attaches his own property to B's land, the maxim requires the land and fixtures to be
treated as a single entity. This property must be enjoyed either by A alone or by B alone,
although both have contributed to it. This may appear unjust.

For practical purposes a plot of land and the house or farm on it are a single entity: it is
physically impossible to enjoy the land without interfering with the fixture, and vice versa.
The maxim is a simple statement of fact rather than a legal doctrine. If a compromise is to
be found between the claims of A and B, it can only be by awarding the property to one of
them, and giving pecuniary compensation to the other.
 INTRODUCTION

Quicquid plantatur solo, solo cedit

Is the common law notion applicable to customary land law?

In Asseh v. Anto [1961] G.L.R. 103, Opanyin Yena had cultivated cocoa farms on the land of the Barfo
Family with their permission. He had given two of these farms to one Apreku. It was argued for the
appellant that this gift was ineffective, at least after the deaths of Opanyin Yena and Apreku. One ground
was that, since the land belonged to the Barfo family, farms made on that land were necessarily the property
of the family, and so could not be given away by Apanyin Yena. The court rejected this argument. Korsah
C.J. held:

"There is ample authority for the view that the legal maxim quicquid plantatur solo, solo cedit is not
applicable to land held under native tenure. Once permission of the owner has been obtained to build a
house or to farm on family land the house or farm remains the property of the licensee and his heirs and
successors until the house is demolished or destroyed, when the land would revert to the owners."
 INTRODUCTION

Quicquid plantatur solo, solo cedit

In Kofi Adu v. Sarkodee-Addo (1969) C.C. 59; March 31, 1969, the plaintiff sued to recover
rents paid by a third party to the defendant for the use of certain buildings. The defendant
argued inter alia that the plaintiff was estopped by a previous decision in which the present
defendant's predecessor in title had obtained a declaration of title against the present
plaintiff. The plaintiff replied that the previous case was not conclusive of ownership of the
buildings, because it had concerned only the land on which they stood and not the building.
 INTRODUCTION

Quicquid plantatur solo, solo cedit

Apaloo JA stated, "I think therefore that there is no warrant for the proposition that the
maxim quicquid plantatur solo, solo cedit is not applicable to land held under native
tenure . . .”

He stated further that the dictum in Asseh v. Anto was too wide. He considered that it had
been intended to apply only to cases where the person making the farm or erecting the
building had acted with the consent of the landowner. This was shown by the words “once
permission of the owner has been obtained . . . ,” and by the fact that in all the cases cited
the farming or building had been by licence of the landowner.
 INTRODUCTION

Quicquid plantatur solo, solo cedit

Moreover, it was clear from many decisions that if a trespasser attached fixtures to land, the
owner of the land could, in the absence of acquiescence, rely on the maxim to recover
possession of both the land and the fixtures.

Thus Kofi Adu v. Sarkodee-Addo establishes that the maxim applies in customary law just
as in common law, except where the fixtures have been attached by permission of the
owner.

Does this rule apply to strangers only? See Amissah-Abadoo v Abadoo [1974] GLR 110-132.
 INTRODUCTION

Quicquid plantatur solo, solo cedit

Further reading:

Danquah v. Wuta-Ofei 2 W.A.L.R. 185 (W.A.C.A.); sub nom. Wuta-Ofei v. Danquah [1961]
G.L.R. 487 (P.C.)

QUICQUID PLANTATUR SOLO, SOLO CEDIT [1969] VOL. I. NO. 2 RGL 151—152;
Kofi Tetteh E.

NOTES AND COMMENTS: RIGHTS TO FIXTURES IN CUSTOMARY LAW [1970]

VOL. VII NO. 1. UGLJ 70—76. WOODMAN GORDON R.
LAW OF IMMOVABLE PROPERTY

LECTURE ON THE ALLODIAL TITLE

Dr. Samuel B. Adarkwah Esq.

Lecturer, Faculty of Law, KNUST
 Customary Law Interests in Land

Land Act, 2020 section 1 recognizes the following interest in land:

1. Allodial title

2. Customary law freehold

3. Common law freehold

4. Usufructuary interest

5. Leasehold interest

6. Customary tenancy
 THE ALLODIAL TITLE

Land Act; section 2

The allodial title is also referred to as the “absolute title” and the “ultimate title.” It
describes the only customary law interest in land which was not traditionally held by a
tenant from a lord. Thus the owner is the lord.

The allodial title is the highest interest an owner can hold in land under customary law. If
one considered a hierarchy of interests under the customary law, the allodial title occupies
the apex.

 Which entities can hold the allodial title?

Customary communities (Stools and skins), families, Individuals and the state.
 THE ALLODIAL TITLE

 There are authorities which have held that in certain parts of the country the allodial title
is vested in customary communities called Stools.

Akwei v. Awuletey (1960) GLR 231.

Kotei v. Asere Stool (1962) 1 GLR 312.

However in Jamestown Stool v. Sempe Stool (1989-90) 2 GLR 393, it was held that the
allodial title was vested in sub-stools i.e each of the substools had allodial title to a quarter
as designated to them i.e Sempe, Alata, Akumajay
 THE ALLODIAL TITLE

 In other parts of the country, the allodial title is vested in customary communities called
Skins.

Saaka v. Dahali (1984-86) GLR 149.

Azantilow v. Nayeri (1952) DC (Land) (1952-1955)

 THE ALLODIAL TITLE

 There are authorities holding that the allodial title could be vested in families.

Ameoda v. Pordier (1967) GLR 479.

Prampram Stool v. Central University and Others Suit no: H1/19/2011 unreported.

 There is the possibility of the allodial title being vested in Individuals.

See Dennis & Arthur v Ababio

Nyaasemhwe And Another V. Afibiyesan [1977] 1 GLR 27-36

However contrast with:

Amodu Tijani v. Secretary of Southern Nigeria (1921) 1 AC, 399

Golightly v. Ashirifi (1961) 1 GLR 28 (PC).

Sasraku v. David (1959) GLR 7.

 THE ALLODIAL TITLE

Incidents of the Allodial Title

Incidents refers to the bundle of rights which accrues to the holder of the allodial interest or
for that matter any interest in land. It describes the rights of user and control that the holder
of an interest in land can enjoy.

In terms of enjoyment of rights there is sometimes a distinction between subjects of the

stool on one hand and strangers on the other.

Land Act, 2020 section 8 provides as that the bundle of rights and obligations that attach to
any form of interest in land shall be determined by the applicable source of law which is the
basis of that interest.
 THE ALLODIAL TITLE

Incidents of the Allodial Title

 The community may control the members’ use of the land.

 Community can grant land to subjects or strangers.

 The community has the right to defend its interest in litigation.

 The community is entitled to allegiance and customary services from the subjects or strangers in
occupation.

 Members of the community are entitled to take natural fruits and products, farm or build upon the
land and thus acquire the customary law freehold or usufruct in the land.

 The community retains the reversionary interest in cases where the holder of the customary law
freehold abandons his interest or dies without heirs.- allodial holders may take possession of land
when the holder of the usufruct abandons the land/dies
 THE ALLODIAL TITLE

Acquisition of the Allodial Title

In Ohimen v. Adjei (1957) 2 WALR 275, the modes of acquiring the allodial title were listed
as follows:

“There are four principal methods by which a stool acquires land, they are conquest and
subsequent settlement thereon and cultivation by subjects of the stool; discovery by hunters
or pioneers of the stool, of unoccupied land and subsequent settlement thereon and use
thereof by the stool and its subjects; gift to the stool; purchase by the stool."
 THE ALLODIAL TITLE

Acquisition of the Allodial Title

 Conquest and subsequent settlement and cultivation by subjects of the stool.

 See the following cases:

Nyamekye v. Ansah (1989-90) 2 GLR 152.

Owusu v. Manche of Labadi (1933) 1 WACA 278.

 THE ALLODIAL TITLE

Acquisition of the Allodial Title

 Discovery by hunters or pioneers of the stool and subsequent settlement thereon and use
thereof by the subjects of the stool.

 See:

Ngmati v. Adetsia (1959) GLR 323.

 Gift and purchase are also modes of the acquisition of the allodial title.
 THE ALLODIAL TITLE

Acquisition of the Allodial Title

 The acquisition by another of the allodial interest of a stool or skin land was proscribed by 1969
Constitution which came into force on the 22nd August, 1969.

• There may be cases where there is unoccupied land between two paramount stools (contiguity)? Who
owns those lands?

See:

 Wiapa v. Solomon (1905) Ren. 405.

 Ababio v. Kanga (1932) 1 WACA 253.

 Ofori-Ata v. Atta Fua (1913) D & FCt. (1911-16) 65-66.

 THE OWNERLESS LANDS OF GHANA [1974] VOL. XI NO. 2 UGLJ 123—142 KLUDZE A. K. P.
 THE ALLODIAL TITLE

Loss of the Allodial Title

1. Abandonment. Ohimen v. Adjei

2. Conquest. Owusu v. Manche of Labadi (1933) 1 WACA 278.

3. Adverse possession under the Limitations Decree 1972 (NRCD 54).

4. Extinction by effect of constitutional provisions.

See 1992 Constitution, Article 266(3), which converts existing freeholds held by non-
citizens into leases for 50 years effective August 22, 1969. The statutory pronouncement
was achieved on August 21, 2019. What does this mean for people who held interest in
lands affected by the constitution?
 THE ALLODIAL TITLE

Loss of the Allodial Title

5. Sale.

See Golightly v. Ashirifi (1961) 1 GLR 28 (PC); Sasraku v. David (1959) GLR 7.

6. Compulsory acquisition.

1992 Constitution, Article 20, clauses 1,2,3,5 & 6. to be distinguished from vesting or
vested lands; See Nana Hyeaman II v. Osei (1982-83) GLR 495

Land Act, 2020 section 233