Introduction
Land is one of the most valuable possessions for people all over the world (Landlinks, n.d.).
It can have a big impact on forming social and cultural identities, fostering economic
development, safeguarding natural resources, and building inclusive, resilient, and
sustainable societies (Landlinks, n.d.).
Land tenure is a complex social institution that regulates how people interact with assets
including land, water, and forests (Ashley, 2016, p.153). It refers to the collection of
obligations and rights that govern how land is owned, used, transferred, and succeeded
(Croix, 2002). The two primary forms of legal systems in the world are common law and
civil law (The World bank 2006). In common law, the current cases are decided using
previous legal precedents or judicial decisions. Codified statutes and ordinances are in force
under civil law. Although English systems are based on Common Laws, French systems are
based on Civil Laws.
Under the English System, all land was controlled by the King either directly or indirectly,
and no land could be owned completely as with the French or Roman Law, both of which
were the result of colonization (Chilufya 2023).
Land Tenure Forms under the English Concept
Freehold Tenure
Without any restrictions, such as the need for development or approval from the land board or
another land authority, freehold land tenure grants the owner eternal ownership rights and the
freedom to transfer the land parcel (African development bank 2016). Depending on the
country, the state may have control over how much a landowner with a freehold can exercise
his rights (Chilufya 2023). Freehold properties come with unlimited ownership that you may
essentially pass down through the generations (Chilufya 2023). Freehold land tenure has
historically been portrayed as the most secure form of tenure in Africa because of the
protection it receives from National Governments and their various land institutions under
accepted law (Kasimbazi, 2017).
Leasehold Tenure
A Leasehold title is not full ownership, in contrast to a freehold (CNS Reporter 2018). A
form of land tenure known as leasehold involves the temporary occupation of land under the
conditions of a lease agreement. There is no time limit on how long a lease can be issued
under English law (Chilufya 2023).
Non-formal, De facto Tenure
According to the law, land is utilized and occupied without the genuine owner's consent
(Chilufya 2023). Those living under this tenure frequently experience evictions and lack title
deeds. In rare cases, the authorities do assist by formalizing the agreement so that the parties
can get title deeds to the property. Notwithstanding the illegal nature of their occupation, the
occupiers trade land among themselves (UN-HABITANT, 2003).
Communal Tenure
This sort of tenure suggests a form of land sharing under a hierarchy headed by chiefs. The
community leader has the authority and power to share and distribute land among the
community members (Ojei 2023). Case law and codified law have superseded the community
land tenure system in western nations, while the majority of developing nations still use this
system (Hull 2019).
Division of tenure rights
A specific piece of land is subject to a general division of tenure rights. A piece of land may
be divided into separate elements with distinct rights in metropolitan regions with intense
development (Chilufya 2023).
Condominium
This describes a community of common interest where some of the real estate is designated
for separate ownership and the other portion is designated for common ownership by all of
the separate ownership component owners (Law insider, n.d.). The term "horizontal property"
is also used to describe this type of land tenure (Chilufya 2023).
Land and improvements on the land
Site preparation and improvements (other than construction) that prepare the land for usage
are considered land improvements. They raise the initial value of the land by adding value to
it (Chilufya 2023).
Development and use rights
These refer to efforts one takes to enhance the benefits from the land by converting the land
or structures to profitable use while using rights derived from the use to which land and
existing structures are presently subjected (Chilufya, 2023).
Encumbrances (Incumbrances or charges or burdens)
An encumbrance is a right or interest in real estate that isn't the owner’s (Chilufya 2023).
Below are some common encumbrances.
Easement
A person or organization is granted permission to utilize another owner's property for a
narrowly defined purpose through the use of an easement. Its benefits are tied to the land
itself, thus they endure regardless of who owns the dominating or servient tenement (Chilufya
2023).
Mortgage
This common law document is used to establish a security interest in real property that is held
as collateral for a debt, typically a mortgage loan.
Restrictive covenants (restriction)
These could be of a private or public character (Chilufya 2023). A private contract stipulates
that one party will restrict how its property is used in some way for the benefit of the other
party's property. Once the parties have reached an agreement, restrictive covenants are added
on the title deeds for the property. They bind the land, not the parties individually.
(MyLawyer, n.d.).
Overriding interests
All rights and interests pertaining to a plot of land must be listed on the register entry for that
plot of land under this English land law principle. “They are interests that are not protected
on the land register but that nonetheless bind anyone who acquires an interest in registered
land, whether at the time of first registration or in cases where a registered estate has
undergone a registrable disposition that has been completed by registration”(“Overriding
interest,” 2023).
Land Tenure Forms in the French Concept
French law is based on Roman law, which stipulates that property can only be transferred
when both an agreement and a set of formalities, known as traditio, have been met (Glock,
n.d.). By this idea, several land interests can be separated.
Real rights
A real right is an authority one has over property without having to explain how one obtained
it to a third party. It is split into two categories: the right to use and enjoy something and the
right to the protection of one's interests.
Personal rights
These are rights one has over the property however those rights are not registered in the deed
office. It is simply an agreement between two parties.
Public encumbrances or obligations
Public encumbrances refer to burdens placed on another person’s land for the benefit of the
public. It is registered against and run with the property(land).
Comparative analysis of the two ideas:
Ownership is the French term for the Freehold land tenure arrangement, and in both
instances, there is complete use and control of the property covered by laws and rules. Both
the leasehold and the long lease are written, legally binding, and registrable agreements, and
both require payment for the use of the land. Easements (also known as praedial servitude)
are comparable to public encumbrances in that both are registrable and serve the public. Both
mortgages and rights to security of interests aim to establish collateral for financing. Usufruct
and the development and use of rights both permit the use of the property for the intended
purpose. Construction and planting rights are similar to land and improvements, both of
which improve and increase the value of the land. Both short-term leaseholds and rent, which
are only agreements between two persons and not recorded in the deed office, correspond to
personal rights.
Conclusion
Today's land tenure systems are influenced by the English system of land ownership. It is a
well-established system that shares many characteristics with the French system. The main
finding of this study is that, with the exception of communal land tenure, which is not
covered by the French legal definition, the two notions of land tenure are similar in practice
and application.