Land Ownership

Disputes often arise over who legally owns land. 2 key questions to ask are:

  1. Does the person who claims to own land really own it?
  2. Can they prove they own the land?

Many conflicts over land ownership arise in a family context, where inheritance rights may be disputed.


Formal Titles

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

  • purchase
  • inheritance, gift, or marriage
  • occupation or usage over a period
  • grant from the government

Some countries have different categories of land to which different rules apply. Different rules may apply to:

  • State land (sometimes divided into state public and state private land)
  • Private land
  • Communal land
  • Individual land

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.

  • Many rural communities do not recognise land as being something subject to ownership in the developed country sense at all. Instead land is considered a resource to be used for the benefit of the members of the community and according to the community’s customs and usages.

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.

  • As established by the Enderois case, a denial of security to tenure to those occupying land on the basis of customary rights may be a breach of fundamental human rights.

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.


Women and Land Inheritance

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: South African Inheritance Case

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.


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.


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