Allodial title

Summary

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Allodial title constitutes ownership of real property (land, buildings, and fixtures) that is independent of any superior landlord. Allodial title is related to the concept of land held "in allodium", or land ownership by occupancy and defense of the land.

Most property ownership in common law jurisdictions is fee simple. In the United States, the land is subject to eminent domain by federal, state and local government, and subject to the imposition of taxes by state and/or local governments, and there is thus no true allodial land. Some states within the U.S. (notably Texas) have provisions for considering land allodial under state law, and the term may be used in other circumstances.[1] Land is "held of the Crown" in England and Wales and other jurisdictions in the Commonwealth realms. Some land in the Orkney and Shetland Islands, known as udal land, is held in a manner akin to allodial land in that these titles are not subject to the ultimate ownership of the Crown.

In France, while allodial title existed before the French Revolution, it was rare and limited to ecclesiastical properties and property that had fallen out of feudal ownership. After the French Revolution allodial title became the norm in France and other civil law countries that were under Napoleonic legal influences. In October 1854, the seigneurial system of Lower Canada, which had been ceded from France to Britain in 1763 at the conclusion of the Seven Years' War, was extinguished by the Seigneurial Tenures Abolition Act of October 1854, and a form similar to socage replaced it.

Property owned under allodial title is referred to as allodial land, allodium, or an allod. In the Domesday Book of 1086 it is called alod.[2] Historically, allodial title was sometimes used to distinguish ownership of land without feudal duties from ownership by feudal tenure which restricted alienation and burdened land with the tenurial rights of a landholder's overlord or sovereign.

Legal concept edit

Allodial lands are the absolute property of their owner and not subject to any rent, service, or acknowledgment to a superior. Allodial title is therefore an alternative to feudal land tenure.[3] However, historian James Holt states that "In Normandy the word alodium, whatever its sense in other parts of the Continent, meant, not land held free of seigneurial services, but land held by hereditary right", and that "alodium and feodum should be given the same meaning in England".[4]

Allodium, meaning "land exempt from feudal duties", is first attested in English-language texts in the 11th-century Domesday Book, but was borrowed from Old Low Franconian *allōd, meaning "full property", and attested in Latin as e.g., alodis, alaudes, in the Salic law (c. A.D. 507–596) and other Germanic laws. The word is a compound of *all "whole, full" and *ōd "estate, property" (cf. Old Saxon ōd, Old English ead, Old Norse auðr).[5] Allodial tenure seems to have been common throughout northern Europe,[3] but is now unknown in common law jurisdictions apart from the United States, Scotland and the Isle of Man. An allod could be converted into a fief, by the owner surrendering it to a lord and receiving it back as a fief.[6]

Allodial land title is common in the Isle of Man which has laws with Nordic origins. A version called udal tenure exists in the Orkney and Shetland Islands, also of Nordic origin. These are the only parts of the United Kingdom where allodial title exists, with the few exceptions.

One such exception is the Scottish Barony of the Bachuil, which is not of feudal origin like other baronies but is allodial in that it predates (A.D. 562) Scotland itself and the feudal system, dating from the Gaelic Kingdom of Dál Riata. In recognition as allodial Barons par le Grâce de Dieu not barons by a feudal crown grant, the Baron of the Bachuil has the only coat of arms in Scotland granted a cap of maintenance with a "vair" (squirrel fur) lining (as opposed to ermine) by the Lord Lyon Court.[7]

Another exception is Somerset House which was vested in His Majesty explicitly not in fee simple, and is held to be allodial.

Development of equitable title edit

As late as the Tudor period, in order to avoid estate taxes, a legal loophole was exploited where land was willed to a trustee for the use of the beneficiary. However, trustees often abused this privilege, and heirs found that the courts of common law would refuse to recognize the "use" clause, and would instead grant title in law to the trustee. However, the courts of equity, which were developed by the sovereign to deal with obvious injustices in the common law courts, ruled that the heirs were entitled to the use of the property, and gave them title in equity. As rulings of equity courts ranked above those of common law courts, this gave heirs the use of the land, but not title to it in the common law.

However, this distinction between common law and equity title helped develop forms of security based on the distinction, now known as the mortgage. Enjoyment of the property during the period where the mortgage was in good standing could be assured through the equity courts, while the right to foreclose on the property to merge the common law and equity title were guaranteed in the common law courts.

Proof of ownership edit

Until the 18th century, almost all common law property ownership depended on proving a link of possession from a royal grant of title to the property owner. Although the feudal system had ceased from England in 1660, and is now fee simple taxation, in theory the feudal chain of title still exists, although it is a formality.

However, proving ownership in the absence of the documents was an impossibility, and forgeries of crown grants were common and difficult to detect. Moreover, it was nearly impossible to determine if land was subject to common law encumbrances (i.e. mortgages). This led to the establishment in the 18th century of land registry systems, where a central office in each county was responsible for the filing of land deeds, mortgages, liens and other evidence of ownership, transfer or encumbrance. Under land registry, deeds and charges were not recognized unless they were filed, and persons who filed were given priority over previous transactions that had not been filed. Moreover, under statutes of limitation, in certain jurisdictions only documents that had been filed in the past 40 years had to be consulted to determine the chain of ownership.

United States edit

Before 1774, all land in the American colonies could also be traced to royal grants, either a single enormous grant creating each proprietary colony (e.g. Pennsylvania and Maryland), or smaller direct grants within crown colonies (e.g. Virginia). The original grantee (recipient of the land) then sold or granted parcels of land within his grant to private citizens and other legal entities. The Treaty of Paris (1783), which ended formal hostilities and recognized American independence, also had the effect of ending any residual rights held by the original grantees or the Crown. This recognized that no person holding land in the new United States owed any allegiance or duty to the Crown.

Apart from land that was formally owned at the time of the Revolutionary War, most American landholders can trace their title back to grants by the federal or state governments of land obtained by purchase (Louisiana Purchase, Florida, Alaska), treaty (the Ohio Valley, New Mexico, Arizona, and California), or annexation (Texas, Hawaii). However, in reality, grants made prior to those territories becoming U.S. possessions were recognized; ownership under French and Spanish crown grants in the Louisiana Purchase and Guadalupe-Hidalgo/Gadsden territories remained valid. Although in Dartmouth College v. Woodward the United States Supreme Court rebuffed New Hampshire's attempt to convert Dartmouth College from a private college into a public university, the Court decided this was based on the Constitution prohibiting states from impairing the obligations of the contract which created the private corporation that owned the land, and not based on any principle that the land was somehow immune from state control.

Many state constitutions (Arkansas, Wisconsin, Minnesota, New York) refer to allodial title, but only to clearly distinguish it from feudal title. The conditions under which the government can compel the sale of privately owned real property for public necessity are established by eminent domain laws of either the federal or state governments, respectively. The Fifth Amendment to the United States Constitution requires just compensation for eminent domain compelled sale. In addition, the government powers of police power and escheat have been retained in the American legal system.

Limited allodial title edit

Other institutional property ownership can also be called allodial, in that property granted for certain uses is held absolutely and cannot be alienated in most circumstances. For example, universities and colleges that hold property for educational purposes can be described as having allodial title. In most states, property held by churches for the purpose of worship also has status similar to allodial title. Native American reservations also share some similarity with allodial title. However, in all these cases, it is also clear that if the title ceases to be used for the purposes for which it was granted, it reverts to the state or the federal government.

See also edit

References edit

  1. ^ For example, the Constitution of the State of Minnesota states that "All lands within the state are allodial and feudal tenures of every description with all their incidents are prohibited." Constitution of the State of Minnesota.
  2. ^ Express, Britain. "Domesday Book glossary". Britain Express.
  3. ^ a b Chisholm, Hugh, ed. (1911). "Allodium" . Encyclopædia Britannica. Vol. 1 (11th ed.). Cambridge University Press. p. 698.
  4. ^ Holt, James (1997). "Politics and Property in Early Medieval England". Colonial England, 1066–1215. London: Bloomsbury Publishing. pp. 115–6. ISBN 978-1-4411-7794-0.
  5. ^ C.T. Onions, ed., Oxford Dictionary of English Etymology, s.v. "allodium" (Oxford: Oxford University Press, 1996), 26–27.
  6. ^ Reynolds, Susan (1994). "Fiefs and Medieval Property Relations : 3.1 The concept of the fief". Fiefs and Vassals. Oxford University Press. p. 48. ISBN 0-19-820458-2.
  7. ^ Livingston, Niall (2006). The MacLeas or Livingstones and their Allodial Barony of the Bachuil (PDF). Baronage Press. Archived from the original (PDF) on 21 May 2018. Retrieved 21 May 2018.

Sources edit

  • Otto Brunner: Land und Herrschaft: Grundfragen der territorialen Verfassungsgeschichte Österreichs im Mittelalter. Darmstadt 1984 (unveränderter Nachdruck der 5. Auflage von 1965).
  • K. H. Burmeister: "Allod". In: Norbert Angermann (Hrsg.): Lexikon des Mittelalters. Bd. 1. München [u.a.] 1980.
  • William Bennett Munro, 1907, The Seigneurial System in Canada: A study in French Colonial Policy Harvard Historical Studies, Vol. XII, Harvard University Press, Cambridge, Massachusetts.

External links edit

  •   The dictionary definition of allodial title at Wiktionary