Allodial title

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. Historically, much of land was uninhabited and could, therefore, be held "in allodium".[1]

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, Nevada and Texas) have provisions for considering land allodial under state law, and the term may be used in other circumstances.[2] Land is "held of the Crown" in England and Wales and other jurisdictions in the Commonwealth realms. Some realms (such as Australia and Canada) recognize aboriginal title, a form of allodial title that does not originate from a Crown grant. 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 it is called alod.[3] 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

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.[4] However, historian J. C. 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,"[5] and that "alodium and feodum should be given the same meaning in England."[6]

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 (ca. 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).[7] Allodial tenure seems to have been common throughout northern Europe,[4] 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.[8] 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 exception of the Scottish Barony of the Bachuil, which is not of feudal origin like other baronies but is allodial in that it predates (562 A.D.) 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.[9]

Development of equitable title

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

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.

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