Land Law

Chapter Two: Land Ownership

Ali Oday
 Introduction
• land rights: ‘land law rights can affect persons other than
the parties who created the rights. This is the ‘proprietary’
nature of land law rights, and it is completely different from
the merely ‘personal’ obligations that an ordinary
contractual relationship establishes.
• Proprietary rights can ‘run’ with the land and can confer
benefits and burdens on whomsoever comes to own the land.
 Example
• Where A and B entered into a contract for the creation of a proprietary right in
favour of B, Over A’s Land is enforceable between A and B like any other
Contract:

• A- Land Owner: the grantor of the right

B- person to whom A granted a lease, easement or some other proprietary

right in A’s Land: grantee of the rights
• Where A sells his land to X (or, more accurately, sells his right of ownership in
the land), the proprietary nature of B’s right means that it is capable of ‘binding’
X. the proprietary right is enforceable beyond the original parties to the contract
(A and B) and so B’s right is potentially enforceable against X, even though X had
no part in the creation of the right

• A X

B the person with a lease, easement or some other proprietary right in A’s land,
and who may be able to enforce that right against X, the transferee or purchaser of
A’s land, even though X had no part in the creation of the right.
 Types of proprietary rights

• Generally, and with some necessary simplification for the purposes of exposition,
‘proprietary rights’ fall into two categories:
• estates in land and
• interests in land.
 Estate in land

• The ‘doctrine of estates’ forms one of the cornerstones of the law of real property,
and this is as true today as it was in feudal times, even with the introduction of
near universal registration of title.
• Theoretically, all land in England and Wales is actually owned by the Crown, and
all other persons may own ‘merely’ an ‘estate in the land’, rather than the
land itself and all other persons may own ‘merely’ an ‘estate in the land’, rather
than the land itself.
 The fee simple or freehold estate

• When people say that they own their land, usually they mean that they own this
estate in the land: ‘the fee simple absolute in possession’. A fee simple comprises
the right to use and enjoy the land for the duration of the life of the grantee and
that of his heirs and
successors. Furthermore, the fee simple estate is freely transferable (‘alienable’)
during the life of the estate owned (i.e. by gift or sale), or on his death (i.e. by will
or under the rules of intestate succession when there is no will), and each new
estate owner is then entitled to enjoy the land for the duration of his life and that
of his heirs and successors.
• Consequently, although the fee simple is, at its legal root, a
description of ownership for a limited duration – as are all estates
– the way in which the duration of the estate is defined and its free
alienability means that, in most respects, the fee simple is
equivalent to permanent ownership of the land by the person who
is currently the estate owner. In practice, the paramount
ownership of the Crown is irrelevant. Each fee simple owner has it
within his own power to transfer the estate to another (even on
death), and because the full duration of the estate may be enjoyed
by a new estate owner and he may then transfer it (and so on), the
estate can, and usually does, survive through generations.
• However, in one situation, the true nature of the fee simple estate
is revealed and the land will revert to the Crown as ultimate
absolute owner. If the current owner of the fee simple estate has
not transferred the land during his life and then dies leaving no
will and no next of kin to inherit under the rules of intestate
succession, the estate has run its course and the land reverts to
the Crown. This is uncommon for natural persons (but more
common where an estate is held by a company that dissolves with
no successors), but it does illustrate the inherent nature of the fee
simple as ‘ownership for a slice of time’.
• This type of ownership means that you own the land and the building with few
restrictions

§ Also known as fee simple

§ It is the most common type of ownership

§ *** It is important to note that in any municipality there can be

additional restrictions and limitations as per the zoning and bylaw
requirements.
 The leasehold estate

• The leasehold estate comprises a right to use and enjoy the land
exclusively as owner for a stated period of time. This may be one
day, one year, one month, 99 years or any defined period at all.
Somewhat misleadingly, the leasehold estate (however long it is
stated to last) is frequently referred to as a ‘term of years’ even if the
‘term’ is shorter than a year Under property is on, rather, the
leaseholder has the right to occupy the land for a specific time based
on stipulated conditions. leasehold you don’t own the land your
• There are often restrictions on what you can do on the land.
 The fee tail

• The fee tail is an interest permitting its ‘owner’ the use of

land for the duration of his life and that of his lineal descendants
(not all heirs). A lineal descendant is a person who can show a
parental, grandparental, great-grandparental (and so on) link to
the person who was originally granted the fee tail. As with the fee
simple, a fee tail (or ‘entail’) may turn out to be of very long
duration indeed, save that an ‘entail’ may be curtailed in practice
by restricting the qualifying successors to either male or female
lineal descendants. For example, the fee may be ‘entailed’ from
father to son and so on to the exclusion of daughters.
• At the death of the last lineal descendant (e.g. the current
interest-holder who has no sons or daughters), the land will
revert either to the person entitled to the estate in fee simple
or to the Crown if there is none.
• Estate of inheritance – Estates which stay within a family to a
specific descendant – No longer possible, historical
 The life interest

• A life interest (or ‘life estate’) gives the holder the right to use and
enjoy the land for the duration of his life. On death, the life
interest comes to an end and the land reverts to the superior
estate owner, who is usually a long leaseholder or fee simple
owner. Duration of the estate is governed by the length of the life
of the named person
 Interests in land

• The above section considered those rights in land that give the
holder the equivalent of a right of ownership for a defined period of
time. By way of contrast, ‘interests in land’ may be used to denote
those proprietary rights that one person enjoys in the land
(technically,in the ‘estate’) of another. Good examples are the right
of way over someone else’s land (an easement), a debt secured on
the debtor’s land (a mortgage), the right to prevent an owner
carrying on some specific activity on his own land (a restrictive
covenant) or the right to buy another’s land within a fixed time
frame (an option).
 The scope of right to land

• Cujus est solum, ejus est usque ad coelum

• He who is proprietor of land is proprietor also of every thing on it. All buildings, all
natural fruits, and everything above as well as below the surface, belong to the
owner of the land. This Latin maxim was also reaffirmed by the English judge Lord
Coke when he said cujus est solum ejus est usque ad coelum ad inferno, the owner
of the surface of the real estate has property rights in the air above the surface and
in soil below. Hence using this medieval time concept of land some writers give
definitions such as the following:
• Land…includes not only the ground, or soil, but everything that is
attached to the earth, whether by course of nature, as are trees and
herbage, or by the hands of man, as are houses and other
buildings. It includes not only the surface of the earth but every
thing under it and over it. Thus in legal theory, the surface of the
earth is just a part of an inverted pyramid having its tip, at the
center of the earth, extending outward through the surface at the
boundary lines of the tract, and continuing on upward to the
heavens.
• The ancient dictum of Lord Coke, which gave the owner of the
surface the rights ad coelum (literally, to heavens), was utterly long
before the development of air travel.
• Change in technology and travel have raised a number of legal
questions concerning the scope of real estate ownership, rendering
the ancient concept of unrestricted ownership to the heaven’s depths
unduly simplistic. Modern society limited this right for different
reasons that not only in relation to aviation’s but also for the reason
that the state wants to control natural resources below the ground.
 Land Ownership in Somaliland

• First and foremost, it is important to note that Somaliland

Constitution in its article 12 and article 1 of Somaliland Urban
Land Management Law states that ‘All land in Somaliland belongs
to the state of Somaliland and the authority to manage; appropriate
land shall lie with Somaliland government’. While article 2 of
Agricultural Land Ownership Law – Law no: 08/99 is clearly
stipulated that agricultural land ownership in any way of
possessions in general, all agricultural land ownership belongs to
the state. And the person can own only when the legal document
have been issued to the owner.
• Additionally, the authority and management of agricultural land comes under
this law No 08/99 while Urban Management law No17, Established National
Commission on land. Therefore in line and with compatibility of the ownership of
private property is one of the basic rights guarantee in Somaliland Constitution
as Art: 31 of Constitution declared in this sub article (1) “every person shall
have the right to own private property, provided that it is acquired
lawfully. 2) Private property acquired lawfully shall not be expropriated
except for reasons of public interest and provided that proper
compensation is paid. 3) The law shall determine matters that are within
the public interest, which may bring about the expropriation of private
property.”
 Acquisition of property ownership

• 1. Original Acquisition of Ownership and

• 2. Derivative acquisition of ownership
 1. Original Acquisition:
• The original mode is the result of some independent personal
act of the acquirer himself. This mode of acquisition may be
of three kinds:
 a. Absolute:
• When a ownership is acquired over previously ownerless object i.e.
who took it first became the owner. For example when one shoots
a bird or deer in a jungle open to public get gets the ownership.
 B. Accessory:
• When the ownership of property is acquired by way of accession to
some existing property, then the acquisition of ownership is called
accessory acquisition. Examples are the produce of lands or animals or
fruits of trees.
• A man erected a building on another man’s land acting in good faith,
believing the land to be his own i.e. he believed that the title was in his
own name. In the judicial decision, it was proved that the title was
defective. In this case, the land is the principal thing and the erected
building is accession. Thus the man erecting building loses his
ownership. The owner of the land is the owner of the building.
 c. Extinctive:
• When ownership is acquired by a person by some act on his part,
which destroys the title of the previous owner, it is called extinctive
acquisition.
• For instance, the acquisition of ownership by prescription is
extinctive acquisition. There may be acquisitive prescription in
which, after the expiration of the necessary period, the law gives to
the adverse possessor a full legal title. In India, adverse possession
by a person of the land of another for 12 years extinguishes the
ownership of the previous owner and the person being such adverse
possession becomes the owner.
 Somaliland civil code related on original
Acquisition of Ownership
• Article 723 of Somaliland Civil Code states absolute
• Articles 729 -741 of Somaliland Civil Code states Accessory
• Article 775 – 782 of the Somaliland Civil Code states Extinctive
 2. Derivative Acquisition:
• Person is said to acquire derivately when he accepts a conveyance
of title from a previous owner.
• Transfer of ownership
• Will
• Gift
• Succussion
• Sale
 Three main ways of Acquiring land in Somaliland.

• Sale
• The sale is one of the most important transactions in the area
of real property. Land sell is allowed under Somaliland law; Article
25 of Somaliland Urban law provided “ a person provided with a
permanent usage plot and regularly paying the annual tax can
sell, give, transfer, use in any manner consistent with the law”.
• Also, article 9 of Agricultural land Ownership Act agreed that the
owner of agricultural land can sell. Although article prohibited the
newly owned agricultural land to sell during the first three years.
• In general articles 415- 461 of Civil Code related Sale;
 Rights and Duties of Seller and Buyer

•Obligations and Rights of the Seller

•In a contract of sale, obviously there would be at least two parties, that is, the
seller and the buyer. And there are obligations which should be performed by the·
seller to effect the complete transfer of ownership of the immovable sold. There are
also rights.
 i. Obligation to Transfer unassailable Rights over
the Immovable

•When we say transfer of ownership, the transferor has to be the true

owner of the thing. The common law maxim NEMO DAT QUOD NON
HABET perfectly applies here because a seller can not transfer a right
(ownership) he himself does not have. In the first place the seller must
have unassi1ilable right - a right that cannot be defeated, questioned or
disputed. A sel1er should have a perfect title to transfer on an
immovable property to a purchaser.
 ii. Obligation to Furnish Necessary Documents

•This is the most important obligation of the seller in the

transfer of ownership of immovable properties..
 iii. Obligation to deliver

•In contract of sale, delivering the subject of sale is one of the main
obligations of the seller. The seller of a thing is bound to deliver
such thing, and to cause the ownership thereof to be vested in the
purchaser. The delivery of the immovable can be made in any
manner the parties wish. However, in some countries, most of the
time delivery is affected by remission of the keys or titles.
 iv. Right to Take the Payment of Price

•The seller transfers the ownership right to the buyer for value or consideration. If this is
so he has to get the purchase money as exchange of the thing. Subject to agreement
otherwise, delivery of the thing by means of documents and payment of price sha11 be
simultaneous. That is at the time when the seller delivers the thing by means of
instruments that transfer ownership rights over immovable, he should be paid the price
of the thing. It is his right to take the payment of price. It is with the expectation of
receiving money that he sells the property he owned. Thus the seller's obligation to give
the thing and the right to take the purchase money are the two faces of the same coin.
 v. Right to Retain Necessary Documents

•As we have mentioned, the necessary documents are

instruments which help the buyer to cause the transfer of
ownership of the immovable property. If the buyer cannot or
does not have these instruments, it will be difficult for him to
get registered the right transferred to him by the contract of
sale.
• In the preceding section it is stated that the sel1er should be
paid the purchase money of his property sold. Now, what
remedy does he have if he is not paid the price? Unlike
movable properties, immovable properties are not subject to
physical delivery. Their delivery is effected by executing
documents and then delivering them to the buyer. And
hence we cannot say the seller can have the right to retain
the thing.
 Obligations and Rights of the Buyer

i. Obligation as to the Payment of Purchase Money

• The buyer's chief obligation in a contract of sale is to pay the price at
the time agreed, or if no time has been agreed, concurrently with
delivery. He must transfer the ownership of the money to the seller. The
civil code clearly puts the payment of price by the buyer as a mandatory
obligation; “The buyer shall pay the price”.
 ii. Obligation to Take Delivery of the Thing and
Documents

• The buyer is required to take and come into possession of things

which he bought. This may be because of conservation expenses
and risk purposes. But in immovable properties it seems the
buyer may not be required to take the thing. Rather he would be
expected to come into possession of the thing or he could be
required to take possession. But for transfer of ownership cases,
possession of the thing is irrelevant. What is relevant and
important is possession of an authenticated contract of sale and
the seller’s title deed.
 iii. Obligation to Have the Instruments and Title
Registered In the Relevant Office

•Registration of interests in immovable is the most important

requirement in the transfer of ownership that is why evidencing
interests in immovable by some public record has long been
acknowledged. For the transferee's right to be recognized, he must
have registered the right transferred to him.
 iv. Right to have the Issuance of New Title Deed

•The buyer having fulfilled his obligations as to the transfer of ownership of an

immovable property will be entitled to have rights. It is said that ownership right
transferred to him by the contract of sale has to be registered in the registers of
immovable property. The effect of this is to vest in the transferee the legal estate or
interest, in this case the ownership right, expressed or created by the disposition.

•Note; the Somaliland Civil Code Articles related to the Contract of Sale are 415 up
to 478.
 Land Inheritance

• Inheritance is the passage of title and ownership of property from the one who dies
to people whom the law designates because of blood or marriage relation as the
deceased heir by operation of the law or by will of the deceased. In other words, it is
the devolution of the property of the Deceased to persons on the basis of close blood
relation to the deceased

• Note; Somaliland Civil Code Articles of 724-725 recognizes that inheritance is one
of the modes of acquisition of ownership.

• Also articles 726-728 related will.

 Donation

• Another method whereby land holding right is transferred is donation.

• Note that Articles of 483 -501 of the Somaliland Civil Code states the elements of
gifts, the effects of a gift and the revocation of gifts.

•
 Different Forms Ownership of Land

• Conventionally speaking, the ownership of land may be

classified generally in to Four major categories: private,
communal, Common and public on the one hand. In the
following a brief discussion is made about the nature of such
ownership rights.
 i. Private Ownership

• This is the kind of land totally owned by private individuals.

It belongs absolutely to an individual and as such the law
provides an absolute protection against any intervention on
such right by any other party. In principle individuals have
an absolute right of use, exclusion, and disposition of their
property.
 ii. Communal Ownership

• Communal ownership of land refers to such property of land

commonly owned by a community of a certain village or locality. In
most cases common grazing lands, water wells, irrigation lands or
river systems, common use forestry and mountains, fishing lakes
etc are categorized under this system. There are many such kinds
of arrangements in many part of the world. The village or the
community need to have some regulation to control the use of the
common property. In some systems the state intervenes to make
laws and regulations for the community.
 iii. State/Public Ownership

• This type of property constitutes all lands which are not owned by
individual person/s or the community. In most countries,
mountains, public highways, public halls, parks, trans-boundary
Rivers and forest lands, lakes etc are owned and administered by
the state.
 iv. Common Ownership

• Property owned in common by husband and wife each having an

undivided one-half interest by reason of their marital status.
 The Bundle of Rights

• Owners right to:

1. Use

2. Exclude others from use

3. Irreversibly change
4. Sell, giveaway or bequeath

5. Rent or lease
6. Retain all rights not specifically granted to others
7. Retain these rights without time limit or review
 Use

• Ownership does not necessarily connote possession. An individual, group or commercial

entity can own land and therefore be free to use it legally or if they choose not to use it as
well. As a land owner you have the overall right to use the land within its allocated legal
limits.

• Ownership grants you the right to use land, using landing however, it does not mean you
own it. There are many instances where we legally have rights to use land (public roads and
spaces for example) without the ownership. Therefore, use of land does not necessarily mean
ownership, whereas ownership means right and freedom to use the land. There is also
adverse possession which allows people to eventually gain ownership through possession.
 Exclude others from using

• A key feature of landownership is the right to exclude - although there are

certain legal limitations on this right, as a general rule, private ownership allows
the owner to exclude others from using the land. Since the right of use is vested
in the owner, they become decision makers that determine who is allowed to use
the land, when and how.
 Irreversibly change

• The owner of the land is also free to make permanent and irreversible changes to
the land so long as it doesn’t interfere with the ownership rights of the other
individuals. Land ownership bestows the right to build on your land, or make
renovations and changes that are permanent. Of course, there are legal limits to
this as well and require adherence to municipal zoning laws and bylaws
 Sell, give away or bequeath

• Along with the right to use and change the land, only the legal owner of the land
has the right to sell, give or bequeath the land. This is a particularly important
right in the Somali context, as many people have found themselves purchasing
land not being sold by their rightful owners. This is also an area that can breed
corruption in land administration and those professionals working in this field
must be mindful of this.
 Rent or lease

• Along with the owner’s right to use the land as they see fit, the right to use can
extend to dictating how your land is used and by whom. Ownership allows you to
engage in a tenancy agreement whereby you may rent or lease parts or all of the
land. Along with the above right to sell and give away, the owner also has the
right to temporarily or permanently allow access and use. The right to rent or
lease your property also opens the owner to different responsibilities and
compliance to Landlord and Tenant laws. In Somaliland, strong and effective
tenancy laws are yet to be developed.
 Retain all rights not specifically granted to others

• Ownership is an exclusive right and grants you rights and privileges not
afforded to non- owners. These can include rights that are not specifically
mentioned in this list of bundle of rights.
• Note; Articles Related to the Ownership of Somaliland civil Code are laid down
in Book three of the Somaliland Civil Code, Article 681 up to 718 and are related
to the extent of the rights of the owner; restriction of the rights of ownership; and
Join Ownership. Also Articles 792 up to 805 states the rights derived from the
rights of the Ownership.
 Exercise
• Read the Somaliland Civil Code Articles related
• Original acquisition of Ownership
• Derivative Acquisition of ownership
• Ownership rights and Limitation