Allodial title

Allodial title is a concept in some systems of property law. It describes a situation where real property (land, buildings and fixtures) 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 from feudal ownership, where property ownership is dependent on relationship to a lord or the sovereign. 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 the common law world—primarily, the United Kingdom, the United States, Canada, Australia, New Zealandand the Republic of Ireland—described more properly as being in fee simple. In particular, land is said to be "held of the Crown" in England and Wales and theCommonwealth realms. In England, 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) recognize native title, a form of allodial title that does not originate from a Crown grant.

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. InterestinglyQuebec adopted a form of allodial title when it abolished feudalism in the mid-nineteenth century making the forms of ownership in Upper and Lower Canadaremarkably similar in substance.

Property owned under allodial title is referred to as allodial land, allodium, or an allod. In the Domesday Book it 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 a feudaltenure. The derivation of the word is still doubtful, though it is probably compounded of the Germanic "all," whole or entire, and "odh", property. Allodial tenure seems to have been common throughout northern Europe, but is now unknown in common law jurisdictions apart from the United States. Allodial titles are known as udal tenure in Orkney and Shetland, 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 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 was rapidly disappearing from England in the 18th century, to be replaced with a system of taxation, 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, 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 deed, 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, 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 of eminent domain".

Before 1774, all land in the American colonies could also be traced to royal grants, usually one grant creating each colony. The original grantee (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 the Revolutionary War, they did not want to retain a feudal system of land ownership. 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. Essentially, this merely recognized that no person holding land in the new United States owed any allegiance or duty to the Crown or any English noble. 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 (the Ohio Valley, New Mexico, Arizona, and California), or annexation (Texas, Hawaii). However, in reality, previous grants prior to those territories becoming U.S. possessions were recognized. In fact, in Dartmouth College v. Woodward, the United States Supreme Court ruled that a New Hampshire law that attempted to revoke the land grant toDartmouth College from King George III was unconstitutional.

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 benefit 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. The right of the several states to tax real estate is preserved in the Constitution. In addition, the government powers of police power and escheat have 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:

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 local newspaper. 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, Nevada and Texas, created limited allodial title provisions in order to protect property owners from the burden of highly increased property taxes which often occur when unincorporated 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 titles  acquiring 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 circumstances. For example, universities andcolleges 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.American Indian 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.

Difficulties with allodial title

Although allodial title cannot be lost in most circumstances, 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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