Allodial title
Encyclopedia
Allodial title constitutes ownership of real property
(land, building
s and fixtures) that is independent of any superior landlord, but it should not be confused with anarchy
as the owner of allodial land is not independent of his sovereign
. 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
.
True allodial title is rare, with most property ownership in the common law
world—primarily, the United Kingdom
, the United States
, Canada
, Australia
, New Zealand
and 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 the Commonwealth realm
s. 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 subject to the imposition of taxes by state and/or local governments, 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. The constitution of the state of Minnesota states, "All lands within the state are allodial and feudal tenures of every description with all their incidents are prohibited." Some Commonwealth realms (particularly Australia) recognize native 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. Interestingly Quebec
adopted a form of allodial title when it abolished feudalism in the mid-nineteenth century making the forms of ownership in Upper
and Lower Canada
remarkably 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.
land tenure
. 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," and that "alodium and feodum should be given the same meaning in England."
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.
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.
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 deed
s, 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.
2nd edition offers these definitions:
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. 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; ownership under French and Spanish crown grants in the Louisiana Purchase
and Guadalupe-Hidalgo
/Gadsden
territories remained valid. 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 to Dartmouth 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 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.
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".
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 land becomes 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 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. 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.
Those who can apply for allodial title are limited: A person who owns and occupies a single-family dwelling, its appurtenances and the land on which it is located, free and clear of all encumbrances, except any unpaid assessment for a public improvement, may apply to the county assessor to establish allodial title to the dwellings, appurtenances and the land on which it is located. One or more persons who own such a home in any form of joint ownership may apply for the allodial title, jointly if the dwelling is occupied by each person included in the application.
After the county assessor receives the application, he transfers it to the state treasurer.
The state treasurer then determines the amount which is required to be paid by the property owner to establish allodial title. This is done by using "a tax rate of $5 for each $100 of assessed valuation on the date of the application." The treasurer must calculate, separately, the amount that must be paid in a lump sum, and for the payment in installments over a period of not more than 10 years. These "amounts must be calculated to the best ability of the state treasurer so that the money paid plus the interest or other income earned on that money will be adequate to pay all future tax liability of the property for a period equal to the life expectancy of the youngest titleholder of the property."
If the property owner pays the lump sum amount calculated by the state treasurer, and submits proof that the home is a single-family dwelling occupied by the homeowner, and that the property is free and clear of all encumbrances except any unpaid assessment for a public improvement, "the state treasurer shall issue a certificate of allodial title". If the property owner enters into an agreement with the state to make installment payments (in lieu of a lump sum payment), the issue of a certificate of allodial title occurs upon the receipt by the treasurer of the last payment.
Once a property owner receives a certificate of allodial title, he is relieved from the payment of all further property taxes, "unless the allodial title is relinquished by the homeowner or his heirs." Instead, the state treasurer is responsible for the payment of the taxes due.
Once allodial title is established, it "is valid for as long as the homeowner continues to own the residence unless he chooses to relinquish the allodial title[.]" NRS 361.910 (1). Upon the death of an allodial title holder, the heir or heirs can reestablish allodial title by using the same procedure that the original property owner used.
The holder of an allodial title can voluntarily relinquish it at any time. NR8 361.915 (1).
The title shall be relinquished if the property is sold, leased or transferred by the allodial title holder; the allodial title holder no longer occupies the dwelling for 150 days; or the home is converted to anything other than a single-family dwelling occupied by the owner. Id.
If allodial title is relinquished, either voluntarily or otherwise, the property owner receives a refund of the unused portion of the payments made to originally establish the allodial title. NRS 361.915 (3)-(4). Once the allodial title is relinquished, the property owner is once again responsible for all future property taxes.
The importance and benefit of establishing allodial title extends beyond the non-payment of property taxes. It also has significance in the area of homestead law. Pursuant to NRS 115.010, the available homestead exemption in Nevada is $125,000. However, if allodial title has been established and not relinquished, the homestead exemption "extends to all equity in the dwelling, its appurtenances and the land on which it is located."
Furthermore, although the regular homestead exemption provides no protection against legal process to enforce the payment of obligations contracted for the purchase of the property, or for improvements made thereon (including any mechanic's lien lawfully obtained), or for legal taxes, or for any mortgage or deed of trust executed upon the property, the holder of an allodial title is fully exempt from all of these under the homestead laws.
The only area within the homestead laws wherein allodial title fails to provide an extra benefit is in the realm of civil and criminal forfeiture of property.
Similar to all property in Nevada, property held by allodial title is subject to forfeiture for criminal conduct.
Despite this one area, allodial title provides significant benefits to those who qualify for it. These benefits are tremendous in the areas of property tax and homestead. If one can pursue allodial title, it may well be worth the cost to do so.
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.
Real property
In English Common Law, real property, real estate, realty, or immovable property is any subset of land that has been legally defined and the improvements to it made by human efforts: any buildings, machinery, wells, dams, ponds, mines, canals, roads, various property rights, and so forth...
(land, building
Building
In architecture, construction, engineering, real estate development and technology the word building may refer to one of the following:...
s and fixtures) that is independent of any superior landlord, but it should not be confused with anarchy
Anarchy
Anarchy , has more than one colloquial definition. In the United States, the term "anarchy" typically is meant to refer to a society which lacks publicly recognized government or violently enforced political authority...
as the owner of allodial land is not independent of his sovereign
Sovereign
A sovereign is the supreme lawmaking authority within its jurisdiction.Sovereign may also refer to:*Monarch, the sovereign of a monarchy*Sovereign Bank, banking institution in the United States*Sovereign...
. 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
Lord
Lord is a title with various meanings. It can denote a prince or a feudal superior . The title today is mostly used in connection with the peerage of the United Kingdom or its predecessor countries, although some users of the title do not themselves hold peerages, and use it 'by courtesy'...
or the sovereign
Monarch
A monarch is the person who heads a monarchy. This is a form of government in which a state or polity is ruled or controlled by an individual who typically inherits the throne by birth and occasionally rules for life or until abdication...
.
True allodial title is rare, with most property ownership in the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
world—primarily, the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
, the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
, Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
, New Zealand
New Zealand
New Zealand is an island country in the south-western Pacific Ocean comprising two main landmasses and numerous smaller islands. The country is situated some east of Australia across the Tasman Sea, and roughly south of the Pacific island nations of New Caledonia, Fiji, and Tonga...
and the Republic of Ireland
Republic of Ireland
Ireland , described as the Republic of Ireland , is a sovereign state in Europe occupying approximately five-sixths of the island of the same name. Its capital is Dublin. Ireland, which had a population of 4.58 million in 2011, is a constitutional republic governed as a parliamentary democracy,...
—described more properly as being in fee simple
Fee simple
In English law, a fee simple is an estate in land, a form of freehold ownership. It is the most common way that real estate is owned in common law countries, and is ordinarily the most complete ownership interest that can be had in real property short of allodial title, which is often reserved...
. In particular, land is said to be "held of the Crown
The Crown
The Crown is a corporation sole that in the Commonwealth realms and any provincial or state sub-divisions thereof represents the legal embodiment of governance, whether executive, legislative, or judicial...
" in England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
and the Commonwealth realm
Commonwealth Realm
A Commonwealth realm is a sovereign state within the Commonwealth of Nations that has Elizabeth II as its monarch and head of state. The sixteen current realms have a combined land area of 18.8 million km² , and a population of 134 million, of which all, except about two million, live in the six...
s. In England
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
, there is no allodial land, all land being held of the Crown; in the United States, all land is subject to eminent domain
Eminent domain
Eminent domain , compulsory purchase , resumption/compulsory acquisition , or expropriation is an action of the state to seize a citizen's private property, expropriate property, or seize a citizen's rights in property with due monetary compensation, but without the owner's consent...
by the federal 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 US (notably Nevada, and Texas) have provisions for considering land allodial under state law, but such land remains rare. The constitution of the state of Minnesota states, "All lands within the state are allodial and feudal tenures of every description with all their incidents are prohibited." Some Commonwealth realms (particularly Australia) recognize native title
Native title
Native title is the Australian version of the common law doctrine of aboriginal title.Native title is "the recognition by Australian law that some Indigenous people have rights and interests to their land that come from their traditional laws and customs"...
, 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
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
, while allodial title existed before the French Revolution
French Revolution
The French Revolution , sometimes distinguished as the 'Great French Revolution' , was a period of radical social and political upheaval in France and Europe. The absolute monarchy that had ruled France for centuries collapsed in three years...
, it was rare and limited to ecclesiastical
Roman Catholic Church
The Catholic Church, also known as the Roman Catholic Church, is the world's largest Christian church, with over a billion members. Led by the Pope, it defines its mission as spreading the gospel of Jesus Christ, administering the sacraments and exercising charity...
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
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
countries that were under Napoleonic legal influences. Interestingly Quebec
Quebec
Quebec or is a province in east-central Canada. It is the only Canadian province with a predominantly French-speaking population and the only one whose sole official language is French at the provincial level....
adopted a form of allodial title when it abolished feudalism in the mid-nineteenth century making the forms of ownership in Upper
Upper Canada
The Province of Upper Canada was a political division in British Canada established in 1791 by the British Empire to govern the central third of the lands in British North America and to accommodate Loyalist refugees from the United States of America after the American Revolution...
and Lower Canada
Lower Canada
The Province of Lower Canada was a British colony on the lower Saint Lawrence River and the shores of the Gulf of Saint Lawrence...
remarkably similar in substance.
Property owned under allodial title is referred to as allodial land, allodium, or an allod. In the Domesday Book
Domesday Book
Domesday Book , now held at The National Archives, Kew, Richmond upon Thames in South West London, is the record of the great survey of much of England and parts of Wales completed in 1086...
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 feudalFeudalism
Feudalism was a set of legal and military customs in medieval Europe that flourished between the 9th and 15th centuries, which, broadly defined, was a system for ordering society around relationships derived from the holding of land in exchange for service or labour.Although derived from the...
land tenure
Land tenure
Land tenure is the name given, particularly in common law systems, to the legal regime in which land is owned by an individual, who is said to "hold" the land . The sovereign monarch, known as The Crown, held land in its own right. All private owners are either its tenants or sub-tenants...
. However, historian
Historian
A historian is a person who studies and writes about the past and is regarded as an authority on it. Historians are concerned with the continuous, methodical narrative and research of past events as relating to the human race; as well as the study of all history in time. If the individual is...
J.C. Holt states that "In Normandy
Normandy
Normandy is a geographical region corresponding to the former Duchy of Normandy. It is in France.The continental territory covers 30,627 km² and forms the preponderant part of Normandy and roughly 5% of the territory of France. It is divided for administrative purposes into two régions:...
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."
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
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
jurisdictions apart from the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
. 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 loopholeLoophole
A loophole is a weakness that allows a system to be circumvented.Loophole may also refer to:*Arrowslit, a slit in a castle wall*Loophole , a short science fiction story by Arthur C...
was exploited where land was willed to a trustee
Trustee
Trustee is a legal term which, in its broadest sense, can refer to any person who holds property, authority, or a position of trust or responsibility for the benefit of another...
for the use of the beneficiary
Beneficiary
A beneficiary in the broadest sense is a natural person or other legal entity who receives money or other benefits from a benefactor. For example: The beneficiary of a life insurance policy, is the person who receives the payment of the amount of insurance after the death of the insured...
. 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
Security
Security is the degree of protection against danger, damage, loss, and crime. Security as a form of protection are structures and processes that provide or improve security as a condition. The Institute for Security and Open Methodologies in the OSSTMM 3 defines security as "a form of protection...
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 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 deed
Deed
A deed is any legal instrument in writing which passes, or affirms or confirms something which passes, an interest, right, or property and that is signed, attested, delivered, and in some jurisdictions sealed...
s, 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
Black's Law DictionaryBlack's Law Dictionary
Black's Law Dictionary is the most widely used law dictionary in the United States. It was founded by Henry Campbell Black. It is the reference of choice for definitions in legal briefs and court opinions and has been cited as a secondary legal authority in many U.S...
2nd edition offers these definitions:
- Allodial — Free; not holden of any lord or superior; owned without obligation of vassalage or fealty; the opposite of feudal.
- Allodium — Land held absolutely in one’s own right, and not of any lord or superior; land not subject to feudal duties or burdens. An estate held by absolute ownership, without recognizing any superior to whom any duty is due on account thereof.
Before 1774, all land in the American colonies could also be traced to royal grants, either a single enormous grant creating each proprietary colony
Proprietary colony
A proprietary colony was a colony in which one or more individuals, usually land owners, remaining subject to their parent state's sanctions, retained rights that are today regarded as the privilege of the state, and in all cases eventually became so....
(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. However, when the colonies won the Revolutionary War
American Revolution
The American Revolution was the political upheaval during the last half of the 18th century in which thirteen colonies in North America joined together to break free from the British Empire, combining to become the United States of America...
, they did not want to retain a feudal system of land ownership. The Treaty of Paris (1783)
Treaty of Paris (1783)
The Treaty of Paris, signed on September 3, 1783, ended the American Revolutionary War between Great Britain on the one hand and the United States of America and its allies on the other. The other combatant nations, France, Spain and the Dutch Republic had separate agreements; for details of...
, 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
The Crown
The Crown is a corporation sole that in the Commonwealth realms and any provincial or state sub-divisions thereof represents the legal embodiment of governance, whether executive, legislative, or judicial...
. 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
Nobility
Nobility is a social class which possesses more acknowledged privileges or eminence than members of most other classes in a society, membership therein typically being hereditary. The privileges associated with nobility may constitute substantial advantages over or relative to non-nobles, or may be...
. 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
Louisiana Purchase
The Louisiana Purchase was the acquisition by the United States of America of of France's claim to the territory of Louisiana in 1803. The U.S...
, Florida
Florida
Florida is a state in the southeastern United States, located on the nation's Atlantic and Gulf coasts. It is bordered to the west by the Gulf of Mexico, to the north by Alabama and Georgia and to the east by the Atlantic Ocean. With a population of 18,801,310 as measured by the 2010 census, it...
, Alaska
Alaska
Alaska is the largest state in the United States by area. It is situated in the northwest extremity of the North American continent, with Canada to the east, the Arctic Ocean to the north, and the Pacific Ocean to the west and south, with Russia further west across the Bering Strait...
), treaty (the Ohio Valley, New Mexico
New Mexico
New Mexico is a state located in the southwest and western regions of the United States. New Mexico is also usually considered one of the Mountain States. With a population density of 16 per square mile, New Mexico is the sixth-most sparsely inhabited U.S...
, Arizona
Arizona
Arizona ; is a state located in the southwestern region of the United States. It is also part of the western United States and the mountain west. The capital and largest city is Phoenix...
, and California
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
), or annexation (Texas
Texas
Texas is the second largest U.S. state by both area and population, and the largest state by area in the contiguous United States.The name, based on the Caddo word "Tejas" meaning "friends" or "allies", was applied by the Spanish to the Caddo themselves and to the region of their settlement in...
, Hawaii
Hawaii
Hawaii is the newest of the 50 U.S. states , and is the only U.S. state made up entirely of islands. It is the northernmost island group in Polynesia, occupying most of an archipelago in the central Pacific Ocean, southwest of the continental United States, southeast of Japan, and northeast of...
). However, in reality, previous grants prior to those territories becoming U.S. possessions were recognized; ownership under French and Spanish crown grants in the Louisiana Purchase
Louisiana Purchase
The Louisiana Purchase was the acquisition by the United States of America of of France's claim to the territory of Louisiana in 1803. The U.S...
and Guadalupe-Hidalgo
Treaty of Guadalupe Hidalgo
The Treaty of Guadalupe Hidalgo is the peace treaty, largely dictated by the United States to the interim government of a militarily occupied Mexico City, that ended the Mexican-American War on February 2, 1848...
/Gadsden
Gadsden Purchase
The Gadsden Purchase is a region of present-day southern Arizona and southwestern New Mexico that was purchased by the United States in a treaty signed by James Gadsden, the American ambassador to Mexico at the time, on December 30, 1853. It was then ratified, with changes, by the U.S...
territories remained valid. In fact, in Dartmouth College v. Woodward
Dartmouth College v. Woodward
Trustees of Dartmouth College v. Woodward, 17 U.S. 518 , was a landmark United States Supreme Court case dealing with the application of the Contract Clause of the United States Constitution to private corporations...
, the United States Supreme Court ruled that a New Hampshire
New Hampshire
New Hampshire is a state in the New England region of the northeastern United States of America. The state was named after the southern English county of Hampshire. It is bordered by Massachusetts to the south, Vermont to the west, Maine and the Atlantic Ocean to the east, and the Canadian...
law that attempted to revoke the land grant to Dartmouth College
Dartmouth College
Dartmouth College is a private, Ivy League university in Hanover, New Hampshire, United States. The institution comprises a liberal arts college, Dartmouth Medical School, Thayer School of Engineering, and the Tuck School of Business, as well as 19 graduate programs in the arts and sciences...
from King George III
George III of the United Kingdom
George III was King of Great Britain and King of Ireland from 25 October 1760 until the union of these two countries on 1 January 1801, after which he was King of the United Kingdom of Great Britain and Ireland until his death...
was unconstitutional.
Many state constitutions
State constitution (United States)
In the United States, each state has its own constitution.Usually, they are longer than the 7,500-word federal Constitution and are more detailed regarding the day-to-day relationships between government and the people. The shortest is the Constitution of Vermont, adopted in 1793 and currently...
(Arkansas
Arkansas
Arkansas is a state located in the southern region of the United States. Its name is an Algonquian name of the Quapaw Indians. Arkansas shares borders with six states , and its eastern border is largely defined by the Mississippi River...
, Wisconsin
Wisconsin
Wisconsin is a U.S. state located in the north-central United States and is part of the Midwest. It is bordered by Minnesota to the west, Iowa to the southwest, Illinois to the south, Lake Michigan to the east, Michigan to the northeast, and Lake Superior to the north. Wisconsin's capital is...
, Minnesota
Minnesota
Minnesota is a U.S. state located in the Midwestern United States. The twelfth largest state of the U.S., it is the twenty-first most populous, with 5.3 million residents. Minnesota was carved out of the eastern half of the Minnesota Territory and admitted to the Union as the thirty-second state...
, New York
New York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...
) 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
Real property
In English Common Law, real property, real estate, realty, or immovable property is any subset of land that has been legally defined and the improvements to it made by human efforts: any buildings, machinery, wells, dams, ponds, mines, canals, roads, various property rights, and so forth...
for public necessity are established by eminent domain
Eminent domain
Eminent domain , compulsory purchase , resumption/compulsory acquisition , or expropriation is an action of the state to seize a citizen's private property, expropriate property, or seize a citizen's rights in property with due monetary compensation, but without the owner's consent...
laws of either the federal or state governments, respectively. The Fifth Amendment to the United States Constitution
Fifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
requires just compensation for eminent domain compelled sale.In addition, the government powers of police power
Police power
In United States constitutional law, police power is the capacity of the states to regulate behavior and enforce order within their territory for the betterment of the general welfare, morals, health, and safety of their inhabitants...
and escheat
Escheat
Escheat is a common law doctrine which transfers the property of a person who dies without heirs to the crown or state. It serves to ensure that property is not left in limbo without recognised ownership...
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:- Tax protestors: Some tax protesterTax protester (United States)A tax protester is someone who refuses to pay a tax on constitutional or legal grounds, typically because he or she believes that the tax laws are unconstitutional or otherwise invalid...
s deny the legal power of municipal and stateU.S. stateA U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
governments to tax property on the basis that allodial title cannot be alienated by failure to pay those taxes. - Mortgagors: Persons who have overextended themselves and face foreclosureForeclosureForeclosure is the legal process by which a mortgage lender , or other lien holder, obtains a termination of a mortgage borrower 's equitable right of redemption, either by court order or by operation of law...
often try to create an allodial title. - Anti-zoning groups: Persons who own agricultural land that faces re-zoningZoningZoning is a device of land use planning used by local governments in most developed countries. The word is derived from the practice of designating permitted uses of land based on mapped zones which separate one set of land uses from another...
due to encroaching urbanizationUrbanizationUrbanization, urbanisation or urban drift is the physical growth of urban areas as a result of global change. The United Nations projected that half of the world's population would live in urban areas at the end of 2008....
often 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 of nuisanceNuisanceNuisance is a common law tort. It means that which causes offence, annoyance, trouble or injury. A nuisance can be either public or private. A public nuisance was defined by English scholar Sir J. F...
applies 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 the 1787 Constitution.
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
Newspaper
A newspaper is a scheduled publication containing news of current events, informative articles, diverse features and advertising. It usually is printed on relatively inexpensive, low-grade paper such as newsprint. By 2007, there were 6580 daily newspapers in the world selling 395 million copies a...
. 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, NevadaNevada
Nevada is a state in the western, mountain west, and southwestern regions of the United States. With an area of and a population of about 2.7 million, it is the 7th-largest and 35th-most populous state. Over two-thirds of Nevada's people live in the Las Vegas metropolitan area, which contains its...
and Texas
Texas
Texas is the second largest U.S. state by both area and population, and the largest state by area in the contiguous United States.The name, based on the Caddo word "Tejas" meaning "friends" or "allies", was applied by the Spanish to the Caddo themselves and to the region of their settlement in...
, created limited allodial title provisions in order to protect property owners from the burden of highly increased property taxes which often occur when unincorporated land becomes 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 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. American Indian
Native Americans in the United States
Native Americans in the United States are the indigenous peoples in North America within the boundaries of the present-day continental United States, parts of Alaska, and the island state of Hawaii. They are composed of numerous, distinct tribes, states, and ethnic groups, many of which survive as...
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.
Nevada
In 1997, the Nevada Legislature created a new section of statutes within the property tax statutory scheme. Nevada Revised Statutes (NRS) 361.900 to 361.920. These statutes, which are entitled "Allodial Title," became effective on July 1, 1998.Those who can apply for allodial title are limited: A person who owns and occupies a single-family dwelling, its appurtenances and the land on which it is located, free and clear of all encumbrances, except any unpaid assessment for a public improvement, may apply to the county assessor to establish allodial title to the dwellings, appurtenances and the land on which it is located. One or more persons who own such a home in any form of joint ownership may apply for the allodial title, jointly if the dwelling is occupied by each person included in the application.
After the county assessor receives the application, he transfers it to the state treasurer.
The state treasurer then determines the amount which is required to be paid by the property owner to establish allodial title. This is done by using "a tax rate of $5 for each $100 of assessed valuation on the date of the application." The treasurer must calculate, separately, the amount that must be paid in a lump sum, and for the payment in installments over a period of not more than 10 years. These "amounts must be calculated to the best ability of the state treasurer so that the money paid plus the interest or other income earned on that money will be adequate to pay all future tax liability of the property for a period equal to the life expectancy of the youngest titleholder of the property."
If the property owner pays the lump sum amount calculated by the state treasurer, and submits proof that the home is a single-family dwelling occupied by the homeowner, and that the property is free and clear of all encumbrances except any unpaid assessment for a public improvement, "the state treasurer shall issue a certificate of allodial title". If the property owner enters into an agreement with the state to make installment payments (in lieu of a lump sum payment), the issue of a certificate of allodial title occurs upon the receipt by the treasurer of the last payment.
Once a property owner receives a certificate of allodial title, he is relieved from the payment of all further property taxes, "unless the allodial title is relinquished by the homeowner or his heirs." Instead, the state treasurer is responsible for the payment of the taxes due.
Once allodial title is established, it "is valid for as long as the homeowner continues to own the residence unless he chooses to relinquish the allodial title[.]" NRS 361.910 (1). Upon the death of an allodial title holder, the heir or heirs can reestablish allodial title by using the same procedure that the original property owner used.
The holder of an allodial title can voluntarily relinquish it at any time. NR8 361.915 (1).
The title shall be relinquished if the property is sold, leased or transferred by the allodial title holder; the allodial title holder no longer occupies the dwelling for 150 days; or the home is converted to anything other than a single-family dwelling occupied by the owner. Id.
If allodial title is relinquished, either voluntarily or otherwise, the property owner receives a refund of the unused portion of the payments made to originally establish the allodial title. NRS 361.915 (3)-(4). Once the allodial title is relinquished, the property owner is once again responsible for all future property taxes.
The importance and benefit of establishing allodial title extends beyond the non-payment of property taxes. It also has significance in the area of homestead law. Pursuant to NRS 115.010, the available homestead exemption in Nevada is $125,000. However, if allodial title has been established and not relinquished, the homestead exemption "extends to all equity in the dwelling, its appurtenances and the land on which it is located."
Furthermore, although the regular homestead exemption provides no protection against legal process to enforce the payment of obligations contracted for the purchase of the property, or for improvements made thereon (including any mechanic's lien lawfully obtained), or for legal taxes, or for any mortgage or deed of trust executed upon the property, the holder of an allodial title is fully exempt from all of these under the homestead laws.
The only area within the homestead laws wherein allodial title fails to provide an extra benefit is in the realm of civil and criminal forfeiture of property.
Similar to all property in Nevada, property held by allodial title is subject to forfeiture for criminal conduct.
Despite this one area, allodial title provides significant benefits to those who qualify for it. These benefits are tremendous in the areas of property tax and homestead. If one can pursue allodial title, it may well be worth the cost to do so.
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.
See also
- Land tenureLand tenureLand tenure is the name given, particularly in common law systems, to the legal regime in which land is owned by an individual, who is said to "hold" the land . The sovereign monarch, known as The Crown, held land in its own right. All private owners are either its tenants or sub-tenants...
- ManorialismManorialismManorialism, an essential element of feudal society, was the organizing principle of rural economy that originated in the villa system of the Late Roman Empire, was widely practiced in medieval western and parts of central Europe, and was slowly replaced by the advent of a money-based market...
- OdelsrettOdelsrettThe Odelsrett is an ancient Scandinavian allodial title which has survived in Norway as odelsrett and existed until recent times in Sweden as bördsrätt....
- Torrens titleTorrens titleTorrens title is a system of land title where a register of land holdings maintained by the state guarantees an indefeasible title to those included in the register...
- Numa Denis Fustel de CoulangesNuma Denis Fustel de CoulangesNuma Denis Fustel de Coulanges was a French historian.Born in Paris, of Breton descent, after studying at the École Normale Supérieure he was sent to the French School at Athens in 1853, he directed some excavations in Chios, and wrote an historical account of the island.After his return he filled...
- Mark systemMark systemThe mark system is a social organization that rests on the common tenure and common cultivation of the land by small groups of freemen. Both politically and economically the mark was an independent community, and its earliest members were doubtless blood relatives. In its origin the word is the...
- Quia EmptoresQuia EmptoresQuia Emptores of 1290 was a statute passed by Edward I of England that prevented tenants from alienating their lands to others by subinfeudation, instead requiring all tenants wishing to alienate their land to do so by substitution...
- Nulle terre sans seigneurNulle terre sans seigneurIn feudal law, Nulle terre sans seigneur is the principle that one provides services to the sovereign for the right to receive land from the sovereign....
- AssartingAssartingAssarting is the act of clearing forested lands for use in agriculture or other purposes. In English law, it was illegal to assart any part of a Royal forest...
Sources
- 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.
External links
- Allodial title resources
- describes New York's feudal system of land confiscation upon failure to pay rent to the state
- Court case where mortgage holder did not have allodial title recognized by court and sanctions were applied at quatloos.com
- Nevada's Allodial Title System
- Allodial Title - Law - Property Ownership. by Arthur Cristian