Disputes often arise over who legally owns land. 2 key questions to ask are:
Many conflicts over land ownership arise in a family context, where inheritance rights may be disputed.
The starting point should be the national law of the country in which the land is situated.
The land law of that country is the most likely to be relevant, but inheritance laws as well as the human or constitutional rights of citizens or groups may also be relevant.
Rights to land are generally acquired through
Some countries have different categories of land to which different rules apply. Different rules may apply to:
Some countries have a formal system of land registration, where a title certificate or similar document is needed, either to become the formal owner or to prove ownership.
Other countries focus more on rights-based occupation or customary rights.
Occupation under customary rights lies at the heart of many land disputes. Those in occupation may have no security of tenure, even if the land has been occupied by the same families or communities for generations.
This makes it difficult for outside purchasers or investors to know whose consent they must obtain to acquire rights themselves.
Some land has formal title documents. Land titling is a large and complex topic, see Resource section for further information.
Case study on Land Titling in India
A short film is now available depicting the work carried out to help the Adivasi, who live in the forest areas of Jharkhand, Odisha, Chhattisgarh and the Vidharbha region of Maharashtra.
Although the Adivasi have lived in these locations for generations they do not in fact hold any legal rights to their land. Being a region that is mineral rich, the land gets diverted to private companies for use in power plants, mining and infrastructure projects.
The Adivasi are losing access to natural resources that help them to live (e.g. food, fuel, building materials, herbs and medicinal plants), which is in turn having a negative effect on their social, cultural and religious identity as well as their social structure.
Inheritance of legal ownership often discriminates against women. It is subject to different national laws. But constitutional law is increasingly being used to oppose discrimination in customary law inheritance rights.
Example: The Bhe Case in the Constitutional Court of South Africa (2004)
For example, the South African Constitutional Court found that the customary principle of the oldest son inheriting to the exclusion of other sons and daughters was unconstitutional, in Bhe v Khayelitsha Magistrate; Shibi v Sithole; South African Human Rights Commission v President of the Republic of South Africa (together these three cases are known as the Bhe Case). The cases concerned a constitutional challenge to the rule of male primogeniture (the right of the first son to inherit property) as it applied in the African customary law of succession, as well as constitutional challenges to certain legislation governing intestate (when someone dies without a will).
Example: Women’s Rights in Botswana
Botswana’s High Court and Court of Appeal held in Mmusi & Others v Ramantele (2012) that any unfair discrimination on the grounds of sex was unconstitutional. Edith Mmusi and her sisters were evicted from their house by their nephew who claimed the home as his inheritance. The local customary law dictated that the home of a deceased person was reserved to the last-born male child.
The High Court awarded the home to the sisters, ruling that the local customary laws prioritising male inheritance were not in keeping with the promise of gender equality in the Constitution of Botswana and in international conventions, such as CEDAW.