(Redirected from
Alodium)
Allodial title is a concept of real property in common
law. It describes a situation where real property (i.e. land, buildings
and fixtures) is owned free and clear of
any encumbrances , including liens, mortgages and tax
obligations. Allodial title is inalienable , in that it cannot be
taken by any operation of law for any reason whatsoever. True
allodial title is rare, with most property ownership in the common
law world (primarily, The United
Kingdom, the United States, Canada, Australia and New Zealand) is described more properly
as being in fee simple. 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
says allodium is "land which is absulute property of the owner, real
estate held in absolute independence, without being subject to any
rent, service, or acknowledgement to a superior. It is thus opposed
to feud. In England, there is no allodial land, all land
being held of the king; but in the United States most lands are
allodial."
Property owned under allodial title is referred to as allodial
land or allodium.
Legal concept
Under early British common law, all
land was held to belong to the sovereign. Any other interest in real
property had to flow from a grant of land from the sovereign,
usually in return for feudal obligations, such as agreeing to supply
military assistance to the king on
demand, or payment in lieu of military assistance. In England, the sovereign would generally give
large land grants to Dukes, who would
themselves grant land to lower nobles, down to the lowest type of
person with actual title in land, the Esquires . The majority of the
population were usually tenants or serfs of the Esquires, Knights and Lords.
However, as the sovereign's demands for military assistance or
taxes in lieu grew, minor nobility,
particularly those at the level of baron,
found themselves increasingly in fear of losing their lands. This
was particularly a problem during the reign of King John "Lackland", who was
particularly notorious for seizing large estates and taking their
income directly into the crown's treasury. Indeed, this was one of
the major complaints that was addressed in Magna Carta. As a result of Magna Carta,
legal protections were put in place that prevented the sovereign
from seizing land without cause, usually treason against the
sovereign.
In addition, the Catholic
Church in England wanted exemption from taxation from their own
estates, and protection from seizure by the Crown. This was of
particular importance in the case of nobility who died without sons,
who had the opportunity to will their estates to the Church, whereas
in the absence of testamentary instructions, the estate would have
reverted to the Crown automatically.
These rights, which eventually could be relied upon by even the
smallest property owners, guaranteed ownership in fee simple, or free of any obligations to
a noble or the sovereign. To distinguish it from feudal title, and
to allow for situations like land used for religious or educational
purposes which could be held free of crown tax, the term "allodial"
(from the Germanic for "all
one's own") was used.
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 existed, although it was 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.
By the time of the American Revolutionary
War in 1774, this was essentially the
land system in place in the thirteen American colonies.
The Treaty of Paris
Prior to 1774, all land in the American colonies could also be
traced to royal grants, usually one grant creating each colony. However, when the colonies won the
Revolutionary War, they did not want to create a feudal system. As a
result in the Treaty of Paris,
which ended formal hostilities and recognized American independence
, England agreed to give up any Crown rights to the land, and agreed
that all land in the American colonies was held in allodial title.
Essentially, this recognized that no person holding land in the new
United States owed any allegiance or duty to any English noble.
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 goverments of land obtained
by purchase (Louisiana), treaty (the
Ohio Valley ), conquest (New Mexico,
Arizona, and California), or annexation (Texas). 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 a New
Hampshire law that attempted to revoke the land grant to Dartmouth College from King George III was
unconstitutional.
Many state constitutions (Wisconsin, Minnesota, New
York) refer to allodial title, but only to clearly distinguish
it from feudal title, which appears to be illegal throughout the
United States. Clearly, the United States
Constitution does not recognize the concept that land ownership
is absolute, as the Fifth
Amendment to the Bill of
Rights clearly gives goverments the right to take property for
public use if appropriate compensation is given.
Misuse of concept of allodial title
Many anti-tax and anti-goverment groups are convinced that the
references to allodial title in state constitutions and the Treaty
of Paris give property owners absolute, inalienable title to their
property. These people generally fall into two broad groups:
A. Those who have studied the actual historical documents:
Prior to the [Treaty of Paris] of 1783, which signified the end
of the Revolutionary War, land in the rebelling States was owned
primarily by the King of England. The King granted rights and
priviledges related to these lands in the rebelling States following
the historic British pattern. However within the Treaty of Paris the
King gave up his sovereign ownership of the land. In this way most
lands in the States became the property of sovereign individuals
(not governments) without any local State rights to taxation. People
dwelling in the US have unlimited right to contract many freeholders
exercised that right by exchanging municipalities the right to
taxation in exchange for benefits from sharing resources with their
neighbors. This practice was adopted in large scale during the Great
Depression as Counties deceptively began to bill allodial landowners
taxes and offered services in exchange for payment without giving
notice that such payment might imply transfer of allodial owner from
the individual to the State. Deceit is a form of Fraud and thus this
deceptive practice did not in fact transfter allodial title thus
today, as in Noah Websters day, "in the United States, most lands
are allodial as denoted by the words "fee simple" or (free of fee).
B. Those who are busy rewriting history and law according to what
seem right to themselves:
1. Anti-tax crusaders. This group denies the right of municipal and state governments to tax property on the basis
that allodial title cannot be alienated by failure to pay those
taxes. However, most private property is not held in true allodial
title.
2. Mortgagees. Persons who have
overextended themselves and face foreclosure often try to create an
allodial title. As allodial title cannot be alienated by seizure by
a creditor, they claim the foreclosure by the mortgagor is illegal.
However, by its nature, allodial title cannot be mortgaged in the
first place, and an attempt to create allodial title on land that is
subject to encumbrance by debt is impossible. Actually a contract
can be created by an owner of allodial property with a mortgagor
resulting in the transfer of title under certain circumstances such
as default on a loan, thus that land falls out of the allodial title
domain as it is essentiall jointly owned and governed by contract by
both the mortgagee and mortgagor. Once the mortgagor releases the
contract as satisfied in full, the ownership reverts entirely back
to the owner. There was time when one was considered a fool to
mortgage allodial land and thus give up allodial ownership as amoung
other penalties the owner often lost the right of a freeholder to
vote.
3. Anti-Zoning groups. Persons who own
agricultural land that faces re-zoning due to encroaching urbanization often claim that zoning
laws that control agricultural use of property are illegal as it
constitutes an encumbrance on allodial title. They claim that only
the law of nuisance applies to persons
holding allodial title. However, the U.S. Supreme Court 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. However, neither these or any
other method will create allodial title unless it already exists.
Webster claims "in the United States, most lands are allodial" and a
counter claim is made by one editor of this article that today few
lands are allodial. At what time and by what method did this shift
occur?
True allodial title
Two states, Nevada and Texas, have created limited allodial title
provisions in order to protect property owners from the burden of
highly increased property tax burdens which often occur when
unincorporated land becomes part of a town or city.
Nevada allows persons who own and live in single family
residences to obtain allodial title on land they own if the land is
free of mortgage and tax arrears . Nevada accepts a payment based on
an actuarial calculation of the present
value of the future property taxes payable given the age of the
youngest person who holds title to the property. Once this amount is
paid, a certificate of allodial title is granted. Property taxes
owing are paid by the state treasurer from the funds paid to obtain
the certificate. Allodial title is subject to exemptions from
seizure in debt or bankrupty under homestead laws, and the taxes are
paid by the state treasurer as long as the original owner remains in
the home. However, like the barons under Magna Carta, Nevada law
still allows the seizure of property if it is used in a criminal
enterprise .
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, property held by universities and colleges 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. Reserves for aboriginal Americans 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 transfered 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 can't attach to allodial title, it is difficult to have
improvements made to a property as once incorporated, they 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 not be taken away against the will of the
owner (title holder) as the owner is sovereign over the allodial
property. However, an allodial owner can contractually give up
allodial ownership and that allodial ownership can be restored or
sold or passed on to an single heir. Allodial title cannot be taken
away by fraud, only by legitimate contract.
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