Land Law

Land Law

Introduction

Land law deals with the right to alienate, use, or exclude other laws from the land.  In most jurisdictions, the land is referred to as real property or real estate and distinct from personal property. The agreement of land law and use, such as renting, is an essential intersection of contract law. The encumbrance on the rights of the land, for example, easement, constitutes another land rights. Water and mineral law are often interrelated, and the concepts are closely linked. Land law is a form of fundamental law that develops even when not enforced by the state.  The focus of land law is on the supply and use of land. The law facilitates how owners of land use or moderate how other owners use it hence developing the ‘interests’ in the land. There is a political, social, economic, and legal perspective that influences land laws. The historical aspect of land in outlined and the factors are used to shape the content of the united states land law addressing the constitutional regime. The operationalization of policy frameworks and legal regimes that are emergent from the colonial legacy focuses on the way the public and private interests of land are balanced through policies of land law.

History of Land Law

One of the earliest challenges facing the united states congress was to organize land distribution. In 1784 a committee was appointed by congress, with Thomas Jefferson leading the committee to establish a plan to solve the challenge. The proposal set forth the plan outline that led to the 1785 Land Ordinance that required the Indians resolution claims of the land through local tribe’s treaties[1].  The land was surveyed into six miles on a side rectangular townships, and each township subdivided into thirty-six parts, a square mile, and comprised six hundred and forty acres. The plan was to reserve land for bounties granted for the military during the revolutions and land sale to private individuals. The united states subdivision into thirty-six square miles’ units was applied throughout the western settlement. When the 1785 Land Ordinance was being passed by congress, they added new wrinkles that allowed one section of the land to be reserved for each township to be sold to future community schools. By 1787 few sales were done, and congress authorized the disposal of large portions to individuals who were wealthy and prepared to take the task of finding new settlers to work in the lands. Many immigrants were attracted to the united states because of the public land availability and securing of land plots at a minimal cost[2]. The sales of public land were intended for the citizens of the united states, but towards the nineteenth century, they were open to immigrants. Most land laws were passed by congress, and they continued to sell public land. Although they had cleared their debt, the state government continued to raise revenue through the sale of public property.

By the 1890s, the congress recognized public land suitable for homesteading were scarce; hence, they restricted purchases to individuals who had claimed land under the homestead or pre-emption Acts. Most of the land was owned by speculators whose intentions were to sell not to settle and start framing.  Due to the increasing number of immigrants, the state land acts strengthened and formed policies to resolve and made land available at low prices to individuals who wanted to settle and participate in framing.  The Land reforms made involved changing regulations, laws, and customs regarding ownership and use of land. The improvements consisted of properties that the government-backed redistribution or government-initiated[3].  The characteristics of land law reforms were, however, on the replacement or modification of existing institutions that govern the ownership and use of land. Land law reforms were radical, and its objective was to improve the policies governing the system.

Land law is simplified to use rights, transfer rights, and control rights. The use right governs how the land should be applied. The control rights are the authority to make decisions on how to use the property, such as what should be done of the piece of land and who should benefit from the project[4]. The transfer rights are the right to mortgage or sell the land or conveying land to others by intra-community reallocations to reallocate use, inheritance, and control rights. Land law influences various facets of the day-to-day living because it determines the difference between land and property, the ownership of property in the land, and who can access the land.   Land law determines tenants’ rights to land and how an individual can do with their land. The land law is how to own the property outright but still limiting how [5].  Land law is governed by how others interact with the land. Land law regulates land interests. Hence the benefits are influenced depending on whether it is registered or not registered.  These interests include owning land interests, covenants, equitable interests, overriding and minor interests, licenses, and leases.

The land registration and property legislation inaugurate the fundamental changes in the structure of the law of the land. The doctrine of notice operation means equitable rights holders’ rights can be destroyed through caprice or chance. Also, purchasers of properties could find their land burdened by the legal land rights they are not aware of and may not discover, making surveys of the seller. The acts of the law of property and the Settled Land Act brings certainty when there is obscurity and ensures equity in case of inequalities[6].  The basic principle of land registered Act is to ensure land titles are guaranteed and registered for the state. The provisions in the Act does not establish new laws but deals with technical matters. The registration of titles is compulsory; this is to ensure the mechanisms established to protect other individual’s rights in the land are correctly used. The mechanisms are to safeguard the land right is not destroyed during a transfer of registered land title to the new owner.

The unregistered interests override overriding interests. The overriding interest right binds the land purchaser without an entry in the register and irrespective of whether the purchaser has notice or knowledge of them.  Overriding interest take effects spontaneously against a transferee of existing registered land titles or the first proprietor registered. It is immaterial if such interests are equitable or legal as long as they fall within the defined classes of the land registration act.  The registered land protects interests such as minor interests comprises of interests that subsist over or in the land. For instance, for individuals to have priority over the purchaser of a registered title or a proprietor who was registered first, such interests, whether equitable or legal, should be protected by the entry in the register.  Or protected the unilateral approach- for rights the registered proprietor has no knowledge about, or greed, especially for the rights the registered proprietor has experience about or the court.  This class comprises the majority of third party land rights since their objective is to ensure most third party rights are entered on the title register of the affected land. Because failure to make the entry, the right loses its priority over the registered title purchaser unless the land right falls within the overriding interest category.

The grouping of rights of property within the systems of land registration emphasizes the definition of statutory than it does on the equitable and legal quality of rights.  Land law is part of property law and is defined as the condition ownership employing legal relationships. The land is unique, permanent, and indestructible, limited in supply, and is connected to other properties. The land has social essentiality because it sustains multiple interests.  Although an individual may own land through having an ownership interest, a third party may be interested in the property, or a financial institution can have a mortgage possession over the property, or a neighbor may have the right to access the property garage, or the tenant can rent the land from an individual with the ownership interests. Such a characteristic of multiple interests is the primary concern within land law. The law oversees the disputes over the benefit of content or nature, their creation, or the interest priority. For instance, the 1981 landmark case of Williams and Glyn’s Bank v Boland. Such a case, the land law was necessary to determine whether the husband’s bank mortgage can take priority over the wife, who also is interested in the house because he contributed to the purchase of the house.

Importance of land law

Land access is based on customs since customary land rights in indigenous communities are created through their traditions. Such rights of land access have their origin in their land use over a long period. There are land laws developed by the use of land and ancestral occupation by ancestral societies.  In such a case, the law ensures that only through the original clearance act of the land and settlement through ancestors, the rights should be claimed. The land law allows land to be accessed through purchase, leasing, inheritance, sharecropping, and adverse prescription or possession[7]. Land law includes the agreements of land use, such as renting, which is a vital intersection of contract law. Sovereignty in land jurisdiction is referred to as original title, allodial title, or absolute title. These jurisdictions have a land registration system to record fee interest and process of land claim to resolve disputes.

Land law is recognized by the national legal systems of civil law and common law of countries as well as international law. Therefore, the customary land, customary law jurisdiction is a form of ownership of land. Land value tax is an element of tax law, hence helping in land reforms and policies that redistribute and take the land. For instance, a land grant[8]. Land laws ensure an inalienable ability of people to obtain, possess, and utilize land in their discretion as long as their intentions do not violate other people’s rights. Land rights and law address land ownership, which increases human capability and provides security[9]. When an individual has land accessibility, the expulsion threat is constant depending on the landowner choices hence limiting financial stability. The land right is a fundamental part of land laws since they socially enforce individual rights groups to own land according to the land laws of a state.  Land law is integral is ensuring there are legal mandates set by a country regarding ownership of property, and the land rights which provide land ownership and social acceptance are implemented.  The law on land advocate for equality in land access but land rights in various cultures and countries hinders the rights of a specific group to own land.  Laws are vital, and they should be backed up by social acceptance and cultural tradition. Therefore, the land laws ensure that laws concerning land rights and ownership of land are in agreement with the countries culture and have social acceptance.

Land Tenure

Land tenure is customary or a legal relationship defined as groups or individuals or among people. The rules of land tenure define how property rights to land are allocated within communities and how access is granted to control, transfer, and use the land. The responsibilities associated and restraints[10]. Land tenure is an essential part of political, economic, and social structures because it is a multi-disciplinary that brings technical, institutional, economic, social, political, and legal aspects into play[11]. The relationship of land tenure is well-defined and enforceable through customary structures or in a court of law. Land tenure consists of overriding interests, overlapping interests, competing for interest, and complementary interests. For the land law to be applied appropriately, the land tenure is categorized to state, public, private, and open access.

Land law categorizes private rights to an individual, a corporate body, a group of people, or a married couple. The law ensures, within a society, individual families can have rights to agricultural parcels or residential parcels. And excluding other individuals in the society from using those resources without the owner’s consent[12].  Communal rights exist within the society, and every member has the right to use the community holdings independently. Land law has given open access to resources such as marine since the rights are not assigned to anyone. Hence, no one is excluded. The rights of state property are assigned to specific authority in the public sector. Land law ensures that forest land is under the order of the state government, whether decentralized or central levels of government.

Federal Land Ownership

The constitution of the united states addresses the federal government relationship to lands in the article 1V, &, clause 2. It reads, “The Congress shall have the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the united states.”The property clause mandates the Congress authority over federal property including land, and legislate under the clause without limitation[13].  The equal footing doctrine is based within article 1V, & 3, clause 1 enabling acts and providing new states equality to the original states regarding constitutional rights and divestment of federal land[14]. Congress decides the policy on whether to dispose of federal land or acquire more land.  In the land context, the equal footing doctrine is held to mean the states have the authority over the navigable waterways beds[15]. Although there is criticism about the equal footing doctrine prohibiting permanent ownership of federal land, it is contrary to the constitution wording. For instance, the U.S supreme court case Pollard’s Lessee v. Hagan. The case has been combined to provide an argument the state government held temporarily the original states’ land ceded pending their disposal[16].  The supreme court in the case ruled on the federal ownership narrow issue of the lands submerged under navigable waterways, finding such lands belonged to the state under the equal footing doctrine since the original states kept the ownership of the navigable water shores and soils beneath them[17].

The Principle of Land Law

Land law is a complex multidimensional construct that determines how the land use benefits are distributed among claimants. The ownership and access to land is a mark of social and economic status in the community. Therefore, land law is a crucial element in ensuring there is equality in ownership and appropriate use of land. Land law provide tenure security to enable owners to reap benefits and make investments to enhance capacity productivity of their land[18].  Land represents a type of collateral that is ideal because it’s nearly permanent and immovable. The laws of the land have ensured there is a formal registry for verifying ownership of property. In advanced economies, for instance, in the united states, most loans for small businesses are secured against land[19]. The law has enabled ease in verifying land ownership and the cost hence influencing the business environment. Land law has policies on the land title and public guarantees to allow the justification of security of tenure since the public sector can willingly and readily bear the high cost of infrastructure needed to create and enforce land rights. Land law provide an appropriate system of land tenure that vary with location and time so that the operation can be relevant and equally irrespective of precise conditions and needs[20]. In developed countries, there is rapid population growth and increases demand for land resulting in land conflicts. The land law provides a practical, well-organized method to deal with such an issue decisively and quickly hence avoiding inequitable solutions. The law prevents land conflicts and the prospect of people losing land through the arbitrary pathway, therefore, encouraging investment on the property by outsiders and users

Challenges Facing Land Law

The land law implicates legal works in fields such as wildlife and forestry law because of the linkage between other resources and land. For effective land law reforms, the rules should be based on an integrated vision of managing natural resources, requiring sectoral legislation that are well-harmonized to ensure balancing of environmental protection, individual rights, food security and national interests[21]. The implementation of land markets and land rights is a challenge because of the transition engaged during the process of determining appropriate individual rights to land and the creation of administrative and legal framework needed to ensure land laws are functioning well[22]. Due to tenure systems that are based on the community, the land law is still facing challenges because the tenure security cannot be equated automatically with the establishment of formal land markets and individualized tenure systems. Despite the world’s trend concerning land, various customary systems adaptability recognition is increasing hence creating insecurity by replacing the systems where they are viable[23].  In such a case, the legal reforms on land law are to design policies that will provide a framework that is workable for the plural systems of land tenure co-existence and allow the adaptation to societal norms and changing circumstances. The implementation of the law is ineffective because land laws are comprehensive and they require the cooperation of all levels of the government and customary land users to carefully consider the aspirations, practices, and values[24].

The system of land law administration and information is not accessible and transparent. For land laws to function well, the land administration and land market systems should be open, accessible, and efficient to enforce land rights and collect and manage land information. The land law should ensure the implementation process is sensitive to culture, drawing upon norms and local institutions where feasible. Land law reforms should relate to technical standards so that the laws can be economically realistic to the given context. Application of advanced technology to collect, share and disseminate information is unfamiliar to some individuals hence challenging the current legal regimes[25]. Hence implicating land law in areas, for instance, in intellectual property rights and federal land ownership. The policies on soil conservation and land use are challenges because there are no effective methods to ensure the development of land law services collaborate with technical divisions to regulate land use by identifying and emphasizing legal processes on land use.

Conclusion

The nature of land law influences both the social and development of a country. The polices and regulations made regarding land ownership and use and the approach to be used are within the existing land rights institutions.  Through assigning the costs and stream of benefits associated with land use, ownership, and property rights establishes incentives and outlines the authority of decision making while implementing land laws. Enforced and well-defined land laws are essential for output expansion, economic, and development well-being. Appropriate and effective land laws influence income distribution, political power, and wealth in society. Equal distribution of resources affects the strategies used to implement land laws because it dominates the pattern of land ownership and land reforms in the united states.

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[17] Changyou Sun, “State Statutory Reforms and Retention of Prescribed Fire Liability Laws on U.S. Forest Land” (2006) 9 Forest Policy and Economics 392.

[18] United States, An Act to Provide That Land Which Is Owned by the Lower Sioux Indian Community in the State of Minnesota but Which Is Not Held in Trust by the United States for the Community May Be Leased or Transferred by the Community without Further Approval by the United States. (US GPO]: [Supt of Docs, US GPO, Distributor 2000).

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