Friday, 23 March 2018

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RIGHTS AND INTERESTS IN LAND

By: David Adade


The concept of property rights and the nature of rights prevailing on a particular piece of land are at the core of the study of land tenure and land market interactions. Several bundles of rights are assumed to subsist in land, particularly as individualization takes place. 
Allodial Title
Allodial title is the highest interest known in customary law and in some traditional areas of Ghana, is recognized as being held or vested in traditional stools or skins. In other traditional areas, this interest is acknowledged to be held by subgroups such as clans and families as well as individuals. Allodial owners hold their interest under customary law and are not subject to any restrictions on their user rights or any obligations in consequence of their holding except for those imposed by the laws of Ghana. The stool/skin in which the allodial title is vested has complete and absolute freedom in dealing with the land. However, this is subject to the rights of the subjects of the stool/skin who may be in possession.
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Usufructuary Interest
Freehold title is broken down into customary law freehold and common law freehold. Customary law freehold, also called “usufructuary title”, is an interest held by subgroups and individuals in land acknowledged to be owned allodially by a larger community that acquired it either by being the first to cultivate it or by succession from the first owning group of which they are members. Originally, under customary law, subjects of a stool had an inherent customary right to a portion of the allodial land. Exercising this right by occupying or cultivating any portion of the allodial land was enough to establish their usufructuary interest without the necessity of a grant from the stool/skin. Customary law freehold may be held on a corporate status by the substool, lineage, family or by individuals. In addition, it is perpetual and continues as long as the owning group or subject or successors acknowledge the superior title of the stool. The interest is also inheritable and devolves to the holder’s family upon the death or intestate of an individual holder. Holders of the usufructruary right have the right to relinquish their interest by sale, lease, mortgage or pledge, or to grant agricultural tenancies or shareholder agreements such as abunu (a half share) or abusa (a third share), but the recipient is obliged to recognize the superior authority of the stool and to perform customary services due from the subject grantor to the stool/skin. The interest of the customary law freehold is secured because allodial owners cannot pass it to another person or group without the holder’s consent. Holders also stand to forfeit their titles if they deny the title of the allodial owner or if the stool’s subject refuses to perform customary services to the stool when demanded. The interest also could be lost by abandonment (if there is a clear manifestation of intention not to use the land), sale, gift, compulsory acquisition by the state, or failure of successors to inherit the land.
Common law freehold is an interest in land acquired through a freehold grant made by the allodial owner, either by sale or gift. The holder of a customary law freehold can create a common law freehold through a grant to another person out of his interest. This grant requires the parties to agree that their obligations and rights under such a grant will be regulated by common law and that common law rules will govern any dispute that may arise over the land.
Leasehold Interest
Leaseholds are rights granted to a person to occupy specified land for a specified term. They are derived from the common law. A lease may be granted either by the holder of the allodial title or a customary freeholder. Unless there is a law to the contrary, the lease will be granted for a specific period of time. Under leasehold, the lessee pays for the right to occupy the land, usually with an annual rent, and has covenants covering the manner in which the land is used. The lessee may create a sublease or assign the unexpired term of the lease, subject to the consent of the lessor.
Various lesser interests in land can be created by owners of allodial titles or customary freeholds. The two most widely used are ‘abunu’ and’ abusa’, which are usually sharecropping arrangements by which the tenant tills the land and, at harvest, gives a specified portion of the produce to the landlord. In general, the tenant farmer is entitled to a third of the produce from the land under abusa and half of the produce under abunu. This practice exists in various forms or arrangements in the farming communities and is gaining importance as a way of gaining access to scarce land.
Licences and Tenancies
 Licence is permission that makes it lawful for a property to be used by a person who is not the legal owner. Therefore, existence of such permission makes lawful what would otherwise be a trespass. It does not create or grant any interest in the land to the licensee. When land became scarce and more valuable, it was held that the grantor could impose conditions. At first, a number of standard tenancy terms were developed, and grantors (usually communities) could offer one or a choice of these to strangers who sought the use of land (Opoku, 1963). The movement from a restricted number of tenancies with fixed terms towards a system depending on individually negotiated contracts resulted from the growing complexity of commodity production and exchange relations, and the consequential need for more variable arrangements for the use and enjoyment of land. As noted by Woodman, (1996), the terms are not necessarily set by a process of prior bargaining between legal equals. There may be some social standards determining the appropriate terms. The terms “licence” and “tenancy” are used here without drawing a strict distinction between them. Woodman (1996) use the term “tenancy” of the interests held on terms set predominantly by standard categories, while the term “licence” is used of the interests held on expressly negotiated terms. It is extensively used in agriculture commercial farming. There are various forms with the most popular being: Abusa (breaking into three (3) or 2:1 or 1/3); Abunu (breaking into two (2) or 1:1 or 1/2)  According to the definition by Jackson J. “The custom of abusa and abunu is that in exchange for the permission to cultivate the land, the tenant will pay to his landlord one third and half respectively of the proceed made by him.

You can also look at;
THE CONCEPT OF LAND OWNERSHIP IN GHANA
LAND REGISTRATION PROCEDURE
LANDS, BUILDINGS AND BUSINESSES

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