Allodial title (2024)

Allodial titleis a concept in some systems of property law. It describes a situation wherereal property(land,buildingsandfixtures) is owned free and clear of any superior landlord. Allodial title is secured by various state constitutions. An individual's allodial title is alienable, in that it may be conveyed, devised, gifted, or mortgaged by the owner, and may also be distressed and restrained for collection of taxes or private debts or condemned (eminent domain) by the government.

In common legal use, allodial title is used to distinguish absolute ownership of land by individuals fromfeudalownership, where property ownership is dependent on relationship to alordor thesovereign. Webster's first dictionary (1825 ed) says "allodium" is "land which is absolute property of the owner, real estate held in absolute independence, without being subject to any rent, service, or acknowledgment to a superior. It is thus opposed to "feud."

True allodial title is rare, with most property ownership in thecommon lawworld—primarily, theUnited Kingdom, theUnited States,Canada,Australia,New Zealandand theRepublic of Ireland—described more properly as being infee simple. In particular, land is said to be "held of theCrown" inEngland and Walesand theCommonwealth realms. InEngland, there is no allodial land, all land being held of the Crown; in the United States, all land is subject to eminent domain by the federal government, and there is thus no true allodial land. Some states within the US (notably Nevada and Texas) have provisions for considering land allodial under state law, but such land remains rare. Some of the Commonwealth realms (particularly Australia) recognizenative title, a form of allodial title that does not originate from a Crown grant.

In France, while allodial title existed before theFrench Revolution, it was rare and limited toecclesiasticalproperties and property that had fallen out of feudal ownership. After the French Revolution allodial title became the norm in France and othercivil lawcountries that were underNapoleoniclegal influences. InterestinglyQuebecadopted a form of allodial title when it abolished feudalism in the mid-nineteenth century making the forms of ownership inUpperandLower Canadaremarkably similar in substance.

Property owned under allodial title is referred to as allodial land, allodium, or an allod. In theDomesday Bookit is called alod.

Legal concept

Allodial lands are the absolute property of their owner and not subject to any service or acknowledgment to a superior. An allodial title is the opposite of afeudaltenure. The derivation of the word is still doubtful, though it is probably compounded of theGermanic"all," whole or entire, and "odh", property. Allodial tenure seems to have been common throughout northern Europe, but is now unknown incommon lawjurisdictions apart from theUnited States. Allodial titles are known asudal tenureinOrkneyandShetland, the only parts of the United Kingdom of Great Britain and Northern Ireland where they exist.

Development of equitable title

As late as the Tudor period, in order to avoidestate taxes, a legalloopholewas exploited where land was willed to atrusteefor the use of thebeneficiary. 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, thecourts of equity, which were developed by the sovereign to deal with obvious injustices in the common law courts, ruled that theheirswere 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 ofsecuritybased on the distinction, now known as themortgage. 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 was rapidly disappearing from England in the 18th century, to be replaced with a system oftaxation, in theory the feudal chain of title still exists, although it is a formality.

However, proving ownership in absence of the documents was an impossibility, andforgeriesof 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 ofland registrysystems, where a central office in each county was responsible for the filing of landdeed, mortgages,liensand 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, understatutes of limitation, only documents that had been filed in the past 40 years had to be consulted to determine the chain of ownership.

United States

All land within the United States is subject to Taking upon payment of Just Compensation by operation ofeminent domain".

Before 1774, all land in the American colonies could also be traced to royal grants, usually one grant creating eachcolony. The originalgrantee(recipient of the land) then sold or granted parcels of land within his/her grant to private citizens and other legal entities. However, when the colonies won theRevolutionary War, they did not want to retain a feudal system of land ownership. TheTreaty 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 orthe Crown. Essentially, this merely recognized that no person holding land in the new United States owed any allegiance or duty to the Crown or any Englishnoble. There is no specific reference to allodial title in the text of the treaty. Some states created a form of allodial title while others retained the tenurial system with the state as the new ultimate landholder.

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 (theOhio Valley,New Mexico,Arizona, andCalifornia), or annexation (Texas,Hawaii). However, in reality, previous grants prior to those territories becoming U.S. possessions were recognized. In fact, inDartmouth College v. Woodward, theUnited States Supreme Courtruled that aNew Hampshirelaw that attempted to revoke the land grant toDartmouth CollegefromKing George IIIwas unconstitutional.

Manystate 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 ownedreal propertyfor public benefit are established byeminent domainlaws of either the federal or state governments, respectively. TheFifth Amendment to the United States Constitutionrequires just compensation for eminent domain compelled sale. The right of the several states totax real estateis preserved in the Constitution. In addition, the government powers ofpolice powerandescheathave been retained in the American legal system.

Allodial title advocates

Some groups say references to allodial title in state constitutions and (allegedly) the Treaty of Paris give property owners "inalienable" title to their property. These groups include:

• Tax protestors:Sometax protestersdeny the legal power ofmunicipalandstategovernmentsto tax property on the basis that allodial title cannot be alienated by failure to pay those taxes.
• Mortgagors:Persons who have overextended themselves and faceforeclosureoften try to create an allodial title.
• Anti-zoning groups:Persons who own agricultural land that facesre-zoningdue to encroachingurbanizationoften claim that zoning laws that control agricultural use of property are illegal as they constitute an encumbrance on allodial title. They claim that only the law ofnuisanceapplies to persons holding allodial title. However, the U.S. Supreme Court has upheld the constitutionality of zoning laws on a very broad basis, even though such laws all post-date the1787Constitution.

Schemes to obtain "allodial title" usually advise property owners to file a deed of allodial title with the local registry office, or to publish a notice of "allodial" title in a localnewspaper. However, neither these or any other method is recognised by U.S. courts, and attempts to improperly assert an allodial title in U.S. courts may be classified as a "frivolous claim".

Limited allodial title

Two states,NevadaandTexas, created limited allodial title provisions in order to protect property owners from the burden of highly increased property taxes which often occur whenunincorporated landbecomes part of a town or city.

Nevada allowed persons who owned and lived in single family residences to obtain allodial title if the property was not mortgaged and had no tax liens. Allodial titles were subject to exemptions from seizure in debt or bankruptcy under homestead laws; however, property could be seized if used in a criminal enterprise. The Nevada Legislature in 2005 prohibited applications by property owners for allodial title after June 13, 2005. Given this and that some research questions that Texas actually issues Allodial titlesacquiring an Allodial title in either of these states is no longer an option.

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 circ*mstances. For example,universitiesandcollegesthat 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.American Indianreservations 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.

Difficulties with allodial title

Although allodial title cannot be lost in most circ*mstances, that also means that it cannot be transferred or encumbered without losing its allodial status. As such, when a property owner dies and leaves ownership to more than one heir, the allodial status of the property is lost. Allodial title cannot be mortgaged. Moreover, as liens cannot attach to allodial title, it is difficult to finance improvements to a property held in allodial title as, once incorporated, the improvements become part of the allodial title and become exempt from lien or seizure of the property to pay a contractor's bill.

Allodial title cannot, in theory, be legally taken away against the will of the owner. However, an allodial owner can contractually give up allodial ownership and that allodial ownership can be restored or sold or passed on to a single heir. Allodial title cannot be taken away by fraud, only by legitimate contract.

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