Property law or the law of property is the area of law concerned with the study of the legal relations between persons with respect to things. The things in question are, as economists convince us, scarce resources, for where things are in abundance there is no need for rules to regulate for their access and control. The law of property comprises the rules as to how persons can acquire, dispose of and lose rights to such things, various types of rights which may be acquired, the way in which such rights can be held, and how far the rights of access and control of a particular thing are against third parties.
Definition of property
What is Property? How should we identify and describe the ownership of property? If someone owns property, what is the range of things he may do with it? Possess it? Use it?
Sell it? Destroy it? What limits does the law place upon a person’s enjoyment of property in order to protect the public interest catered for by civil code Book II. How is this right (ownership) compared with other legal rights such as contract rights, civil rights to bring an action in tort-which are covered by Rwandan civil code Book III and others?
Consider, for example, a type of property important to most of us. Notice a car that Mr. Mugabo drives. If we describe him as the “owner’, does that tell us everything we may want to know about his legal rights with respect to that car? Who else may have a claim to that car? Perhaps his parents loaned or gave it to him, or perhaps he bought it from an auto dealer. If a bank loaned Mr. Mugabo some money to finance his purchase of the car, does that bank own an interest in a car? If Mr Mugabo lends his car to his friend for a week while he is on vacation or on a mission outside the country, does his friend have a property right in the car? If Mugabo is married, does his wife have any legal right with respect to the car? To what extent may the state, on behalf of Mr. Mugabo’s fellow citizens, regulate Mugabo’s use of the car? Should we take it as an infringement on Mr. Mugabo’s property rights? Such are the questions to be answered by this part of the course – Property law.
In the popular lay sense, the term “property” usually refers to tangible things. A person’s property, we say, consists for example; his car, furniture, clothing, tools, and the like. Land ownership and intangible property, such as bank deposits, stocks, and bonds are also often imagined as ownership of things. In the study of law, the term “property” often is used in a legal sense different from the popular image as referring to a thing.
Different authors have attempted to define what the term “property” means, and among them, we note a few.
To begin with, the two French authors in trying to figure out what the term “bien” means. Note that, the term has at least two meanings; the moral and legal meaning. From the moral point of view, the term refers to what is appreciated – good as opposed to bad. The secondlegal meaning is anything useful that satisfies the material needs of man or simply a good.
Sir William Blackstone, an eighteenth-century English barrister in his commentaries as a guide for laymen wrote; “The third absolute right, inherent in every English man, is that property, which consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land… There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any individual in the universe.”
These words of Sir William Blackstone leads us to the Latin Maxims which shows the dismemberment of property rights into; Usus (use), Fructus (Enjoyment) and Abusus (disposal) which we shall talk about later in this course. He also brings a relationship to our article 14 of Rwandan Civil Code Book II, which states that: “ownership is the right to dispose of a thing in an absolute and exclusive manner, except for the restrictions that result from the law, or from the real rights belonging to others.” This, we shall talk about later in this course.
The American Law Institute in 1936 in its Restatement of what property is, notes; “The word “property” is used sometimes to denote the thing with respect to which legal relations between persons exist and sometimes to denote the legal relations”.
The word “property” in this restatement is used to denote legal relations between persons with respect to a thing. The thing may be an object having a physical existence or it may be any kind of an intangible nature such as a patent right or a debt that your debtor owes you. This definition brings us to something great in our course of property law – the legal relationship of this thing (property) with a person. This is the centre of our interest.
Nicole Hendebert-Bouvier, a French author of the book “Droit Civil et Commercial” defines “property” as a set of rights and obligations that a person has over a thing. These rights and obligations must be of Economic value. They consist of all the property which is represented at the same time by the things and rights that we have over those things.
Property in its most technical legal sense is an intangible concept, signifying the rights, privileges, and powers that the law recognizes as vested in an individual in relation to things tangible or intangible, as distinguished from the things themselves. It includes every interest any one may have in anything that may be the subject of ownership, including the right to freely possess, use enjoy, and dispose of the same. The sum of all these proprietary rights under English law for example is distinguished as “title’ to property. In its popular usage, the term “property” refers to objects that may be the subject of ownership – both physical objects capable of being reduced to possession (infra) and such intangible items as goodwill (the positive impression that people may be having in a business for example).
Proprietary rights are exclusive rights of the individual owner and are protected against infringement by others. In the last analysis, these rights represent a relationship between the owner and other individuals with respect to objects that are capable of being owned.
Third parties must be able to know what rights the owner or the usufructuary have on that property.
To summarize all the above definitions in a metaphoric manner, property today is often taken to be like a “bundle of rights” or, more vividly, a “bundle of sticks” with each stick representing some separable aspect of the total – which total is the property. This metaphor, drawing on sources like the Restatement and that of Sir William Blackstone, emphasizes that property is not an all-or-nothing proposition, but a number of different aspects of control which may be examined separately. Complete ownership of a property means that one person has all the sticks (rights) with respect to a thing. He may open the bundle and divide the sticks (rights), resulting in shared ownership with several people each having some sticks
So, property is an aggregate of rights that a person has against a thing tangible or intangible, that are protected by the state through its laws. This thing upon which a person exercises these rights must be of economic value and subject to acquisition.
- Property and Patrimony
Whereas property has been exhaustively defined, at times it is confused with another interesting term – “Patrimony”.
Patrimony is wider than Property. Property itself is a subset of Patrimony. From the moment a child is born, he/she owns the patrimony even though he/she owns no property. The patrimony owned by this child is based on the property in his/her being a person.
John Locke, an English philosopher in his writing on the two treatise of Government wrote” though the Earth and all inferior creatures be common to all men, yet every man has a property in his own person. This, nobody has any right to but himself”.… Locke says that “every man has a property in his own person” , from which it immediately follows that ” the labour of his body, and the work of his hands ……….are properly his.”
If it makes sense to say that one owns his/her body, then, on the embodiment theory of personhood, the body is quintessentially a personal property because it is literally constitutive of one’s personhood. If the body is property, then objectively, it is property for personhood. This line of thinking leads to a property theory for the tort used in common law of assault and battery. So the interference with my body is an interference with my personal property.
The idea of property in one’s body presents some interesting paradoxes. In some cases, bodily parts can become fungible commodities (to be talked about in details later), just as other personal property can become fungible with a change in its relationship with the owner : For example, Blood can be withdrawn and used in transfusion; hair can be cut off and used by wigmakers, body organs like the kidney can be transplanted.
On the other hand, bodily parts may be too “personal” to be property at all. We have an intuition that property necessarily refers to something in the outside world, separate from oneself. Though the general idea of property for personhood means that the boundary between person and thing cannot be a bright line, still the idea of property seems to require some perceptible boundary, at least in so far as property requires the notion of thing, and the notion of thing requires separation from self. This intuition makes it seem appropriate to call parts of the body property only after they have been removed from the system.
Patrimony is composed of the present property (rights) and the future, something important to distinguish it from the definition of property. Article 1 of the decree law regarding hypothecs in Rwanda provides that “All the property of a debtor, present and to come, constitute the common pledge of his creditors…”
This means that, the pledge is on his patrimony which is the present property and the property to be acquired later. On the other hand, article 1 of the civil Code Book II categorizes the property as ” property or real rights are of three kinds: the rights to claim or obligation, the real rights and the intellectual rights”.
To say that something is “property” only begins the analysis. The next question is which rights accompany ownership of this property. At one time, property was considered as a thing subject to the complete control of its owner. This pushes away the notion of personhood in the composition of property. More recently, property has been, as already given, defined as a bundle of sticks – a collection of individual rights which, in certain combinations, constitute property. But these rights are talked of in relation to a person. They are rights entitled to this person over a thing. Nonetheless, even before that thing to which this person is entitled some rights, this person has the patrimony.
To a lawyer, patrimony is quite distinct from property which forms part of the patrimony. Patrimony covers also the “property to be” that is, the property that will in future, belong to the person.
Hence, the patrimony, which is considered to be a combination of rights and obligations, is inseparably linked to the personality. This means that it forms part of the other two elements: pecuniary and the juridical universality. From this come some other outcomes. On one hand, the patrimony of a person, understood as a set, responding to the obligations upon this person, his creditors can even seize his property that was acquired after the birth of their claim (art. 1 of the decree law on hypothecs). On the other hand, the idea of universality functions in what we call “real subrogation”. This means that the different property constituting the universality can change but, the universality remains.
The new property will replace the old one, and it will be subjected to the same legal regime as the one which it replaced. Thus the real subrogation guarantees the juridical stability situation. This is why the patrimony of a debtor constitutes the general pledge of his creditors. Since the Civil Code does not explicitly give what the term patrimony is and what it entails, some authors (e.g. Aubrey and Rau both teachers of civil law) are used in a bid to show the link between the patrimony and a person.
They put forward four principles:
- Only persons can have patrimony. You cannot think of patrimony without thinking of a person to whom this patrimony is attached.
- Each person necessarily has patrimony, because he/she is able to have the rights and obligations.
- The patrimony remains attached to the person as long as his personality is still valid. It cannot therefore be transferred ( intransmissible entre vifs). A person can transfer some of the rights which he possesses over something e.g. his rights of ownership of an immovable, but the acquirer acquires the right transferred, not the patrimony.
- A person cannot have more than one patrimony. Like the personality, patrimony cannot be divided. What is divided or transferred is the right(s).
- Property and things/ Things and Rights
What are things? This fundamental question is as old as the Earth. It was first put to light by the western philosophy through the Greeks in the 7th Century before Jesus Christ. Such a question of what a thing is has a multiple meaning. Things can be objects – a stone, a piece of wood, and others which are important in our daily lives. But what one notices is that all things cannot go as they wish. Some rules will have to be applied to their transfer and ownership. This is based on the economic principle of scarcity, and to some extent, in order to keep law and order/harmony in society.
Things have got a double meaning:
The restricted meaning of a thing is anything that can be acquired, which can be seen (visible), etc., which can be given or transferred from a hand to another. To the extended meaning of a thing, it means everything, transaction; all of which, that surrounds us, the acts, the events and happenings in this world are all things. It is this combination and wider meaning of a thing (often referred to as property) that interests a lawyer.
The law also cannot ignore these two meanings of the term “thing”. For example art. 260 of our (Rwandan) civil code Book III stipulates that “we are not only liable for the prejudice caused by our own acts, but also to those which are caused by persons who are under our control, or things which are under our supervision…” Of course, a herdsman, just like the owner of a Cow will be responsible for the damages caused by this Cow. Here, this animal becomes a thing. So a thing is not restricted to be only objects. It can be a house, air, insect; in short a multiple of things as can be in the prairies during the summer season.
Property in Economic terms is something that can be used directly or indirectly for Economic gain for example, for the acquisition of money, or in exchange for another thing. Legally, the term property is a right itself over something. For example, a right over the bicycle that you own, the right you possess to acquire certain things. In short, it means patrimonial rights. However, legislators sometimes use the word “thing” to mean property (e.g. art 12 and 31 bis CCB II) which draws a major confusion between the two terms (thing and a property) in our Civil Code.
Article 12 of the Civil Code Book II stipulates that “all “things” ( which can also be replaced by property) without an owner belong to the state in respect of customary rights over them by the indigenous people, and subject of what will be said later on about the right of occupation”. Here, the word “things ” can as well be understood as property which does not have the owner (master). So in a word, ‘’ things ‘’ and ‘’ property’’ in our code are confused and are often used interchangeably.
3. Patrimonial and Extra- Patrimonial rights
A person can have either patrimonial rights over a thing or an extra-patrimonial right over a given situation.
A number of rights are considered to be patrimonial. These will include the right of ownership or the right to claim like the right of the landlord to claim his rent for the house he owns. Patrimonial rights are always of Economic value and always gauged in terms of money. They have an exchange value: they can be acquired by the new owner mainly through their exchange for other rights. They can be transmitted to inheritors and to the legatees of their owner (or holder): they can be seized by their creditors, they are stricken by prescription whether acquisitive or extinctive one.
Among the patrimonial rights, there are those which are more attached to the person (owner/ holder) than others. This is why, such rights cannot be exercised by the unpaid creditors of their holder when the former (the creditors), by way of protecting their general pledge over the property of their debtor, exercise what is termed as “oblique action”.
Art 64 of the Civil Code Book III stipulates that « Creditors can exercise all rights and actions of their debtor, save for those which are exclusively attached to his person». Here we should know that, although these rights are patrimonial in nature, they have either personal or family character that their exercise will call for other considerations of moral order to which only the debtor can know and appreciate their value.
Thus, the creditors cannot use the oblique action to exercise the suppression action or to attack the alimony (pension alimentaire) meant for the debtor, or stand in revocation for the donation between spouses.
Although the law is silent, an analogous question is put over the topic of the “Paulian action” which allows creditors to attack by themselves all the fraudulent acts accomplished by their debtor and which prejudice their rights. However, as a solution in such a case, the fraud is a behaviour worse off than a simple negligence to the extent that the moral and personal considerations that justify the exclusion of the obliqueaction disappears in favour of the need to sanction the act of fraud.
By considering the direct object of these rights, one can say that they are not of Economic value. For example, the right to acquire natural parenthood to a person, parents’ rights over the “person “and property of their child (attributions of the parental authority), the right of an author of a book to decide to publish it or not: we call these extra-patrimonial rights as opposed to patrimonial ones whose direct object or reason is to ensure the protection of the pecuniary or monetary value and which have, within themselves, the monetary value.
Family rights (e.g. parental authority) are extra-patrimonial rights. In all legal systems, family life (rights) will ensure the satisfaction of sexual needs, to oversee the duty to procreate, the education of the children and to ensure that the life together as spouses flourishes. Each person in this family life enjoys and is a creditor to that right, but from which, no economic gain is waited for.
Contrarily to the patrimonial rights, extra- patrimonial rights are not seized and are not transmissible to the heirs or legatees of their holder, creditors can benefit from them and such rights are imprescriptible, whether acquisitive or extinctive prescription.
SECTION 2. Real rights
Property rights or real rights are exercised by an individual over a thing, movable or immovable. The bearer of a real right exercises it directly over a thing without interference of anybody on the thing on which he has custody. They are different from the Obligations or rights which are also referred to as personal rights. An obligation may be defined as a legal bond between two persons by which one is bound to the other to perform an act or to abstain from doing an act, or to create a right over something or to transfer its ownership. A personal right is thus the right that a person named a creditor has against another person named debtor by which the former (creditor) may compel the latter (debtor) to do, to refrain from doing or to give something. Among the real rights recognised by the Rwandan Civil Code Book 2, one can mention: Ownership, usufruct, servitudes, superficies, emphyteusis, etc.
- INTRODUCTION AND DEFINITION
Definition: « Ownership is the right of disposing of things in the absolute and exclusive manner, subject to any restriction of the law and the real rights belonging to other persons» (art.14 CCBII). The same article also provides that «Restrictions of the right of ownership resulting from the relationship between neighbours are established in the title concerning charges on Land».
The first paragraph of this article corresponds to art.544 of the French code which provides that «Ownership is the right to enjoy and dispose of things in an exclusive and absolute manner provided that it does not violate the established rules and regulation».
After the abolition of the Feudal privileges by the French Revolution of 1789 and after the consequent declaration of the human and citizens rights, ownership was acknowledged as an absolute inviolable and a sacred right. None can be deprived of this right save only when the public necessity legally constituted so requires, and subject to a condition of prior and fair indemnification or compensation.
Since then to date, the concept of the right of ownership is considered as a total and an exclusive right strictly reserved to the usage and enjoyment of individuals. Rwandan constitution recognizes the ownership right where it says «Every person has a right, to private property, whether personal or owned in association with others» (Art. 29 of Rwandan constitution, J.O No. special of 04/06/03).
The same article also insists on the inviolability of the right of ownership by saying «Private» property, whether individually or collectively owned, is inviolable.
The right to property may not be interfered with except in public interest, in circumstances and procedures determined by law and subject to fair and prior compensation» art.19 (2) and (3) respectively.
THE HISTORY OF THE OWNERSHIP RIGHT
Individual ownership has for centuries been the basis for the Economic systems and policies for all civilized peoples of the world. In the primitive societies however, only moveable objects meant for personal use such as clothing, arms, domestic utensils, ornaments, etc. were the ones reserved for individual ownership. Land belonged to the whole tribe, family or briefly, belonged to no-one in particular.
Such collective ownership of property is self-explanatory since, the only way of life was by hunting, fishing and collecting fruits from natural forests. This required no individual ownership of land or waters as it would as a consequence reduce your chances of extended hunting, fishing and fruit collecting. Families or tribes could however, restrict their hunting, fishing or fruis collecting but no individual in isolation from others could do it.
Even when life transformed into that of cultivating and rearing domestic animals, individual ownership was not so sudden. There was collective farming and collective rearing of animals in divisions of at least families. Little by little, constant cultivations by the same family on the same land naturally turned such a land to the family land and later, to be owned individually.
To the Romans, it started during the reign of king NUMA (715-673 BCE) who introduced the temporary sharing of land by individuals to cultivate it and enjoy the fruits from it, but as soon as the harvesting was over, the land turned to collective ownership and awaited for redistribution/sharing for the next season. Slowly by slowly, land which was given to an individual could be cultivated by the same individual season after season, and consequently built a house on the same land to facilitate his works on that land. From this, individual ownership of land was reached, for which the Pater familias was responsible. So the present day individual ownership of property descends directly from the dominium ex jure quiritium organized by law referred to as the 12 tables.
That dominium conferred to the one having this land, invested in him an exclusive, sovereign and perpetual right over that property with the three elements; jus utendi, fruendi, and ubutendi.
- CHARACTERISTICS OF THE RIGHT OF OWNERSHIP
The right of ownership is an absolute right:
- It is exclusive in a sense that only the owner exercises his/her right over the property (thing) save for usufruct and servitudes
- It is individual or personal in that only the ownership has the right. However, there are some cases of collective ownership such as in successions or in coownerships (also matrimonial regime under common property, or community of acquired property after marriage).
- It is a right that gives freedom to the owner to use his/her property in any way he/she feels fitting. But in this case, case law has developed some limitations;
- The right of ownership is perpetual in that it lasts as long as the property upon which this right is exercised still exists. The right to ownership cannot be lost by the mere non use of the property. However, the owner who does not use his/her property may lose the ownership right to a third party who possesses it or who occupies it by the mere fact of acquisitive prescription (to be talked about later on possession).
- ABUSE OF THE RIGHT
The owner is not allowed to use his/her property with an intention of damaging or injuring the neighbours. Where this is established, the court will rule for the payment of damages to the neighbour equivalent to the prejudice caused, as well as the civil interests.
For example,1. Raising or erecting a wall of 3 metres high to hide the sight of the neighbour’s house. 2. Letting the household discharges, e.g. foul water etc.,, into your neighbour’s compound.
- PREROGATIVES OF THE OWNERSHIP RIGHT
Ownership right is the most complete real right one can talk about because it is the only one which accords to its owner all the three prerogatives; ie Usus, Fructus and Abusus. Art.1 of the civil code Book II makes an introduction of the concept of ownership and the related rights such as superficiary, emphyteusis, and servitude – see below
The same article (art.1CCBII) also mentions the dismemberment of this right of ownership where it talks of the right to use and habitation as well as the right to usufruct.
In principle, the full owner of a property must be having all the three mentioned sub rights which compose the ownership right (Usus, Abusus and Fructus).
- Usus -The right to use
As already seen from above (as per the provisions of art.1 (2) the right to use is a real right. A person is free to use his property e.g. a house, by occupying it or a farm by cultivating it, or any kind of use of your property.
Negatively, in a sense, though, some authors have asserted that this right also includes the right of not using your property; the right not to occupy your house, the right not to consume the goods that you have, the right not to drive your car, and others.
Note: whether to use or not to use your property in the way that is convenient to you must go hand in hand with the observation of the limitations provided by the Law.
Such limitations to this prerogative include those established to meet the interests of good neighbourliness like the legal servitudes (e.g. a charge imposed on an immoveable by the law), limitations concerning the sight of your neighbours, the paths, the plantations, etc.
Other limitations include those which are there for the general interests as in
- urbanization – construction licences, land development plans,, protection of Memorials or historic sites;
- Hygiene and sanitation rules – stopping people from rearing animals in towns and cities, disposal of waste etc.);
- Agricultural policy of the Ministry of Agriculture and Animal Resources regarding how a given type of land will be used;
- Expropriation due to the public utility of your property (e.g. Land for the construction of a road or a public school or market).
Such limitations apply to or affect all the prerogatives of the right of ownership.
- Fructus– Right to enjoy fruits
The right to enjoy fruits from your property or from the property on which you exercise the real right. Here fruit is a general term and not solely agricultural produce, although the legal term grew from this base.
This is the right of harvesting all the fruits that are given by that property. From this, a distinction should be made between fruits that are harvested or acquired periodically without changing the state or substance of the thing (property), and the products, the “harvesting” of which do transform the property such as in the case of mining stones from a quarry to be used in road construction or mining cassiterite to make tin where the property can be destroyed.
Fruits have been divided into; Natural fruits like those harvested from Natural trees or even timber from those trees: civil fruits such as rent from a real property e.g. a house or land, interest (income) from the money saved in a bank, etc.; and then, there are “industrial” fruits which are mostly from the works of man (man’s labour) such as the agricultural produce or any other produce that is not of a regular basis and which diminishes totally or periodically.
- Abusus – Right to dispose of your property
The right to dispose of your property can either be physical or legal. The physical disposition of property can be for example by deciding to destroy or demolish your house when you want to use the parcel on which it is built for another purpose. The legal disposition on the other hand, is where you decide for partial or full alienation of the right on your property for example by allowing other people to use your land or house through e.g. donation or through a sale contract.
It (Abusus) should not be confused with the usus – right to use. Abusus involves the transfer of right of ownership to another person whereas in usus, the ownership remains in the same hands even when someone else is using the property.
EXTENT OF THE RIGHT OF OWNERSHIP
Ownership of a thing whether moveable or immoveable means that the one with this right has the right to use and enjoy the fruits of his/her property – in short, the property and all that comes from it. The owner of Land for example has the right to use and enjoy all that is above and below this land unless the law provides otherwise. Under Rwandan law however, the owner of the Land does not have a inalienable right to control what is being done above or below the ground at such a height or such a depth in which he has no interest of “opposition” (art.16 (2)).
As a limitation to the rights of ownership, again, the same article provides that the owner of the soils (Land) has no rights over the water or the substance which could be subject of concessions under the laws relating to mines. In other words, you cannot claim ownership of a piece of Land which is rich in minerals and which can be turned to a mine or quarry.
Articles 261 and 262 of the civil code Book III also bring forward another kind of limitation on the right to use your property despite the freedoms we are entitled to through the ownership right. The two articles caution us to use our property -animals or objects – prudently and diligently. Where this is not observed, we, the owners of such property are answerable to the Law. So, the freedom of using our property the way we like is somewhat limited.
Laws, rules or instructions often limit peoples’ freedom in the exercise of their ownership right to the new acquirer of the property. The right to alienation of your property can also be hampered by a contract already signed over it e.g. mortgage, etc.
As mentioned earlier, the ownership right stays as long as the property itself stays. The mere fact of alienation of the property does not extinguish the ownership right but rather, a transfer of ownership from one person to another. However, where this property has been abandoned (mainly moveable property), and someone else occupies it or takes possession, the new occupant/possessor may take the ownership right through the acquisitive prescription established by the law. In this case, it is not a transfer of ownership since the new possessor cannot tell who the former owner was, for example. before the property was abandoned.
- ACQUISITION OF OWNERSHIP THROUGH ACCESSION
- Definition and general concept of accession
Accession, in law, means a method of acquiring property (which itself was adopted from the Roman law), by which, in things that have a close connection with or dependence on one another, the property of the principle draws after it the property of the accessory, according to the principle, “accessio cedet principali.”21 The ownership of a thing, whether it be real or personal (English law), movable or immovable (French law), carries with it the right to all that the thing produces, and to all that becomes united to it, either naturally or by artificial means; this is called the right of accession.22 Accession may take place either in a natural way, such as the growth of fruits or the pregnancy of animals, or in an artificial way as where a building has been constructed on a given piece of land.
The French law provides the same where it says that ownership of a thing, whether movable or immovable accords to its owner the right to whatever comes out of it, whether by natural or by artificial means. Such a right is recognized under French law as the right of accession. According to art. 552 of the French civil code, ownership of land goes with the right on what is under and above it. Notwithstanding some exceptions, this would mean that whatever would be found under your piece of land, on your land, or above it would automatically belong to you – the owner of the land. In this case, land is the principle object and so, following the Latin maxim; accession cedet…, mentioned above, all that is accessory to it will belong to the owner of the principle.
But what about where no principle object can be identified from the accessories, for example when there is a mixture of two liquids to produce another, or where the two solids are mixed up to the extent that you cannot identify the new from the original property (commixtures)? If we could take Bridge’s 26 definition of the term accession, there would necessarily be a dominant thing to which the other is attached or which ‘swallows’ the accessory, in which case, the application of the principle; accession cedet… would easily fit. Bridge defines Accession in the following words;
“accessio is the joining of a subordinate thing to a dominant one, so that the identity of the subordinate becomes submerged in the dominant.”
However, it should be noted that, accession takes different forms, some of which are too complicated to judge what the principle is. These forms include for example, movables to an immovable (fixtures), movable to movables (specification), liquids to liquids or solids with other solids (confusion or commixture).
Acquisition of ownership right by accession under Rwandan law
Under Rwandan law, accession can be seen in two aspects; the natural prolongation of your ownership right and the other, a mode of acquisition. What interests us here is the second aspect. According to art. 21CCBII, ownership of a thing whether moveable or immoveable gives the right to all its produces. The article continues to say that, the fruits of a thing, even if separated from it, continue to belong to the owner of a thing, unless the law provides otherwise. The following article (art.22 CCBII), stipulates that «ownership of a thing, whether moveable or immoveable, gives the right to whatever becomes united to or incorporated to, either in a natural or artificial manner. »
Contrary to the above, art.23 CCB II expressly puts it that the owner of land who made some construction on his land but used materials that did not belong to him, cannot claim any fruits from his property save only when he has made the reimbursement of the value that is equivalent to the material used in the development of his property, the materials which did not belong to him.
«The owner of the land who has made buildings, works or plantations with materials or vegetation which do not belong to him, must pay the value there of; he may also be condemned to pay damages, if there be any, but the proprietor of the materials or the vegetation has no right to take them away.»
Regarding animals, where the two i.e. a bull and a cow do not belong to the same owner, what will be produced from their mating will belong to the one who owns the female cow. The solution here will be given by art.22 CCBII. However, the owner of a bull can claim some amount of money from the owner of a cow for the bull’s services to the cow but he cannot claim ownership of the calf to be produced.
Accession by incorporation
It should be reminded that, by the term accession, the legislators refer themselves to the Roman expression «accession cedit principali». The problem with accession is to solve a conflict of the real rights where two things, belonging to different owners, are united or incorporated into one.
The solution here is that the one who enjoys the principal or real rights will automatically enjoy the accessory rights.
Art.24 of CCBII clarifies this by adding that, the one who incorporated the constructions or other works to the land that is not his, but who did it in good faith and using his materials has to be reimbursed for the cost of his materials as well as his labour.
If the construction was done not in good faith (bad faith), then, the owner of land on which, for example the house was built (fixed), may ask him or her to remove his/her materials or construction. This depends on the choice of the owner of the land.
Alluvion: In short, this means the deposit of waters either of a lake or a river. Art.26 CCB II provides that, «the deposit of earth or left dry that may form on the bank of a lake or a stream navigable or floatable belongs to the state. The one that is formed on the bank of a lake or a stream that is not floatable or navigable belongs to the owner of the adjacent land. »
Dismemberment of the right of ownership
Dismemberment is the act of transferring or dividing one’s rights or some of them over a property to another person who is not the owner of that property. Usufruct, use, servitudes, superficiary and emphyteusis are some of the dismemberments of the right of ownership over a given property.
This right combines the two rights embedded in the right of ownership (i.e. usus and fructus). The usufructuary is a person who has and exercises the right to use and enjoy the fruits from a property that does not belong to him. The one who exercises this right is however bound by another obligation of preserving the property’s substance for its owner. It should be noted that, where the owner did not give the usufruct for commercial purposes, it should be maintained because if the fruits from it are used for commercial gains, these gains will be for the real owner of the property. This is in line with the principle that, the usufructuary cannot gain more than the real owner gains.
This is the right a person is entitled to on a property (Land) that is not his/hers due to the circumstances surrounding that property. These include the right of passage through another person’s land so that he/she may reach his or her own Land, the right to water resources on another person’s land, or the right to channel the running water through another person’s land below your own. The right to another person’s land which emanates from the nature of the terrain is provided for by the law or from mutual agreement between the concerned parties.
The Rwandan civil code defines superficie as a right to enjoy an immoveable belonging to another person and to dispose of all buildings, wooded areas, trees and other types of plants joined to land. It can be created free of charge or by onerous title (art.76CCII).
On this right, one can be tempted to say that the superficiary behaves totally like the one having a full ownership of a given property but which is just limited to a given period of time (not exceeding 50 years).
Article 77CCII stipulates that, superficie can never be established for a term exceeding fifty years. And if a longer period had been stipulated, it has to be shortened to meet that provision (a term not exceeding 50 years).
The superficiary also has the right to enjoy and dispose of buildings, wooded areas, trees and other types of plants that existed on the same land to which he/she is a superficiary, at the time his/her right (superficie) began. So, the contract for the superficiary is not only for the benefit of what will be harvested in future but also the present accessories or immoveables which are incorporated in or destined to that land (art.79 CCII(3)).
However, as provided for by art.82 CCII, at the termination of his/her right, the superficiary cannot remove all that belonged to him/her which was either found there, or from the works of his hands but which are still joined in the land, or even to claim compensation for the property left on that land. But, as an exception to this, for the constructions he/she has constructed, though he/she cannot remove them, but at least can claim from the proprietor an indemnity fixed at three-quarters of their (constructions) actual value.
During this period of superficie, when there is any kind of use made of the property that affects the rights of the proprietor, the superficiary has a duty to inform the proprietor in timely manner. This is provided for in order to allow the proprietor to ensure his/her rights are not abused.
In principle, all superficies have to be registered but the superficies which do not exceed nine (9) years are not subject to registration (art.85 CCII).
Emphyteusis is a right just like the superficie which, for a certain period of time, grants to a person a full benefit and enjoyment of an immoveable property (Land) owned by another person, provided he/she does not endanger the existence of this immoveable and this carries with it a right or even an obligation to put constructions, works or plantations thereon and in due-course, durably, increases the land’s value (art.62CCII).
It should be noted clear that, the duties mentioned above that go hand in hand with the acquisition of the Emphyteutic right does not in any way exonerate the Emphyteutic leasee from paying some rent to the real proprietor as agreed upon in their contractual provisions (normally paid annually).
An Emphyteusis cannot, according to Rwandan law, be established for a term exceeding ninety-nine years (99 yrs). Where a longer term has been stipulated, it must be shortened and brought down to meet the ninety-nine years. Within this period of emphyteusis, the Emphyteuta is free to use and enjoy the immoveable (land) in any way he likes just as any good owner. He/she can hunt, fish, extract rocks, clay or other similar materials from the immoveable and can cut down trees for the purposes of building or making improvements on the property. An Emphyteuta has the right to change the nature and purpose of an immoveable where he/she wants to increase its value (art.64(3) CCII). Though the Emphyteutic leasee is free to extract rocks, clay and the like, the law (art. 65 CC.BII) does not allow him/her to open mines, quarries, and peat bogs which were unopened at the time his/her emphyteusis was acquired.
As an Emphyteuta, he/she can dispose of his/her right, mortgage or hypothec in the immoveable or even impose servitudes on this immoveable for the duration of his enjoyment.
The civil code (art.71 CCBII) provides for the situations where the Emphyteuta can be deprived of his/her right over the property and instead pay some damages to the real proprietor. These situations include;
- Where the Emphyteuta is in default of paying three consecutive annual rents, or even for any default of payment, if the emphyteuta became bankrupt or insolvent.
- Where the emphyteuta showed grave negligence in executing his charge of maintenance and raising the value of the immoveable (Land) and lastly, 3) For any serious abuse of his right of enjoyment.
In as regards to what follows after the termination of the Emphyteutic period, the procedure and the rules are the same as those for the superficiary, even to what concerns the buildings and other constructions erected by the emphyteuta.
An Emphyteuta has to be given an emphyteutic title from the state, subject to the application of art.36 of civil code Book II. The registration of any transfer of property involving emphyteusis on state land is made by inscription of hypothecs (art.74 (2) CCII).
SECTION 3. OVERVIEW OF THE 2005 ORGANIC LAW ON LAND USE AND
MANAGEMENT IN RWANDA
The land Use and Management Law seeks to address a number challenges to Rwanda’s land regulations, including land insecurity, industrialization, and unsustainable plot size. It emphasizes commercial exploitation through large-scale farms that produce cash corps and announces a consolidation goal that will force famers with multiple, non adjacent small plot to merge their holdings with others. It also creates an apparatus for the systematic registration of all land and for issuing private titles, in a dramatic shift away from the previous system of state ownership. The 2005 Land Use and Management Law formally abolishes every form of customary tenure, but especially Ubukonde (article 86). The objective of the law is to ensure better land management while conferring security on the existing occupants of the land.
Drafters of the land Use and Management Law were urged to respond to some outstanding points. Here is a summary:
Land categorization in Rwanda
Pursuant to the present law on the management and use of land in Rwanda, land is categorized in different ways; 1) Urban and Rural land which is defined as that land that is confined within the boundaries of towns and municipalities as established by the law. It should be reminded that, after the reform in the administrative structures of 2006, towns and municipalities exist no more. The law accords to the president a prerogative to issue a presidential order determining any additional area considered to be urban land and which is adjacent to the already established urban land.
- Individual land is another category. Art.11 of the organic law considers the individual land to be that land that has been acquired through custom, written law (e.g. through contract or succession etc.) which excludes public land or that that belongs to any administrative entity.
- State Land which includes that of public domain which consists of all the land that is meant to be used by the public or land that is reserved for organs of state services as well as national land reserved for environmental protection (arts.12 and 13) and that of private domain of the state which consists all other land that is excluded from that of public domain (arts. 14 and 15). Such land that falls within the private domain is that state owned land that is not included in state land that is reserved for public activities, infrastructures, and that land that does not belong to districts, City of Kigali or to individuals. In addition to the different categories of land that are enlisted under art. 14 of this law, it also goes without mention that Escheat land is also included under this category.
- District land is that which is meant for the public activities of the District. It should be noted here that the District can have both the land that falls to the public domain as well as that of the private domain (arts.17 and 18 respectively).
- General Principles
- LAND IS THE COMMON HERITAGE OF PAST, PRESENT AND FUTURE GENERATION (ARTICLE 3 OF THE LAND LAW)
Land is the most important productive asset owned by most Rwandan households. For this precious heritage to be sustained, it requires two things in particular. First, everyone has rights and obligations regarding the land. Second, the State must act to guarantee this heritage for the benefit of present and future generations. Thus, there is both an individual and a State responsibility for ensuring that land is properly managed and used. Again this principle relies heavily on rational management and use of land in favour of the country’s development.
The State is still recognised as having overall responsibility for the proper management of land, in order to implement its development strategy for the benefit of its people and ensure their food security. As part of the drive to obtain optimal benefit from this most significant of the country’s resources, the law specifically requires landowners to cultivate or improve their property and contains provisions for the State to expropriate land where its owners fail to take advantage of it and leave it unused for an extended period of time.
EQUAL ACCESS TO LAND
In article 4, the land law addresses gender imbalances in customary land tenure confirming that any form of discrimination in matters of land ownership, including gender discrimination, is prohibited. The first step in this direction has already been achieved in with the 1999 Law on Matrimonial Regimes and Succession which allowed women to inherit the property of their husbands where previously, it had traditionally passed to the husbands’ heirs (article 70). Further in the text, the Land law reminds us that only legally married women and their children can inherit (article 36). More, however, is required – notably, education for the population as a whole, and the introduction of appropriate administrative procedures to ensure that these newly acquired rights are disseminated, implemented and respected.
It is nevertheless good to note that the present law opens ownership rights to nationals just as to foreigners, to physical as to moral persons. The procedure for the authentic acquisition of ownership (with authentic documents) as the present law suggests is determined by the Minister having land in his/her attributions.
EQUAL PROTECTION OF THE RIGHTS OVER THE LAND ACQUIRED FROM CUSTOM AND THE RIGHTS ACQUIRED FROM WRITTEN LAW
Even though the 2005 Land Law abolishes every form of customary tenure, it still recognises rights over land acquired from custom pending the registration thereof. Thus article 7 states that: ‘This organic law protects equally the rights over the land acquired from custom and the rights acquired from written law. With regard to law, owners of land acquired from custom are all persons who inherited the land from their parents, those who acquired it from competent authorities or those who acquired it through any other means recognized by national custom whether purchase, gift, exchange and sharing’.
Innovative features of the 2005 land law
THE CREATION LAND COMMISSIONS AND LAND BUREAU AT EACH LEVEL OF ADMINISTRATION
In the process of the acquisition of land, the 2005 Land Law provides for the creation of national, provincial and district-level land commissions to conduct land regulation. Article 8 requires that at each level of administration, these authoritative bodies include women.
The law provides for the establishment of a land bureau at every district level (art.31) that is tasked with the land registration exercise. Such a bureau is headed by the Lands officer whose role can be equated to that of the conservateur des titres foncier in the previous law. Except for the general ones, other tasks and functioning of the land bureau are supposed to be determined by the order of the minister having land under his or her attributions, which order is not in place at the moment.
UNIVERSAL REGISTRATION OF LAND
The land law also states that the ‘Registration of land a person owns is obligatory’ (article 30). More specifically, Land Officers will be appointed to ‘keep land registers and issue certificates approving ownership of land’ (article 31). This is a significant shift away from the previous land tenureship practice, in which only a fraction of all land was titled. This universal registration will provide land users with more certain rights and thereby promote investment of labour and capital in increased productivity, and the sustainable development and management of land resources. In addition land registration could extend the tax base in rural areas.
Article 32 provides for the documents that will have to accompany the application for the registration of your land. These include those that provide the full identity of the applicant and expressly indicating his/her marital status. Where it is for the married person whose matrimonial regime is the community of the property, the full identity of the spouse will also be required. This is quite logical as this would mean shared ownership of the same property. The description of the land whose registration is sought is also a prerequisite just as having justifying documents from the local authorities concerned to prove that the applicant is truly the owner.
There are various problems attached to the registration of land in Rwanda, among which we note the following:
- The population has not yet been sensitized to or educated regarding the registration of their lands. They have no interest in this exercise since they are convinced, even without the registration; the land that was given from their forefathers automatically belongs to them.
- They also claim that the registration exercise itself is not only complicated but especially the transfer of ownership where one wants to dispose of his/her land. When you sell or give away a portion of the registered land, it will be necessary to call for the new certificate and registration of the transfer of this ownership. If the land is not re-registered the ownership will remain with the one who sold or transferred it. So, such legal complications and perceived difficulties limit the people’s rush to register.
- Another problem is the delay in this exercise caused by lack of the technical staff to effect it.. This is accompanied by lack of suitable and effective equipment to facilitate the exercise, such as computers, suitable software and other accessories which would otherwise simplify the work.
- Last but not the least, is the fear of taxes. A tax is imposed on every immoveable that has been registered. This tax has to be paid annually and whenever such an immoveable is sold, a duty or deposit of 6% of the total cost of that immoveable is given to the administrative authority where this property is located. This does not encourage registration. It should however be noted that, there is an express will by the government to scrap this percentage and replace it with a flat rate not exceeding 20.000Rwf.
CONSOLIDATION AND COMMERCIALISATION OF RURAL LAND
Scattered settlements, lack of land law and policy need a framework for the use and management of land. Land should be managed by written law and appropriate mechanisms. The land Use and Management Law grants the state the power to consolidate land ‘to improve rural land productivity’ and delegates authority to establish procedures for consolidation to the Ministry of Agriculture (article 20). Articles 61 and 62 impose productivity requirements on tenants. Article 63 designates ‘the relevant authorities’ as the promulgators of criteria by which to assess productivity. Articles 73 and 74 confer local and national-level officials with authority to impose sanctions on landowners who are not sufficiently maximizing productivity and to confiscate unexploited land.
These measures indicate a clear policy shift towards commercial exploitation over subsistence farming. This land consolidation would come down to encouraging increased production through formation of adjacent plots with similar crops. Nobody will lose their plots but each person will have the responsibility to register his/her plot separately (see article 20).
Another new issue under this new law is that, one is not that free to “alienate” his piece of land in any way as he/she may wish. Where one owns a parcel of one or less hectare, he/she cannot reduce or divide it further (art.20 (3)). In other words, he cannot for example sell any piece of it save where the parcel was not meant for agricultural purposes. Implicitly, one can conclude that where that piece of land was meant for settlement purposes for example, sale of part will not be forbidden. Where the land is meant for agriculture, the owner of land that is between one and five hectares will only be free to divide his/her land upon authorization from the land commission at the level of jurisdiction where the land is situated; (Section four of chapter three (art 31-32) is dedicated to land registration).
TRANSFER OF RIGHTS OVER LAND
The land law authorizes landowners to freely transfer rights over the land. Thus ‘Rights’ based on Land may be transferred through different individuals or it may be guaranteed through succession; it may be guaranteed gratuitously, leased or sold; it may be mortgaged according to requirements and procedures provided for by ordinary civil law’ (article 34). However, for the family interest’s sake, final transfer of rights on land by sale, donation or exchange by a representative of the family requires the prior consent of all other members of the family who are joint owners of such rights. This consent is indicated by a document signed or finger printed by the concerned people, and done before a registrar of civil status or before the registrar of lands of which he or she shall record in his or her registers (articles 35 and 37).
- Rights and obligations of the landowner
- NATURE OF RIGHTS OVER LAND
The principle states that every Rwandan should have the right to access land without any discrimination. However, the right to access the land and the right to own land are very different. The land law says of ownership over land but when we look at its provisions, we find that this is not complete ownership (Article 3); one could argue that the real nature of these rights is that of long-term leases. For example article 5 of the Organic law states that ‘Any person or association with legal personality that owns land either through custom, or who acquired it from competent authorities or who purchased it are allowed to own it on long term lease in conformity with provisions of this organic law’. However, ‘ Any person whether a Rwandan or a foreigner who invested in Rwanda, or an association with legal personality shall enjoy full rights of ownership of land reserved for residential, industrial, commercial, social or cultural and scientific services (article6). Even for this category, the State retains rights to expropriation (with compensation) due to public interest (article 3).
Under this system, the State retains its ownership of the land but “loans” it to an individual for an extensive period (For exact term of land leases see articles 6 and 7 of the Presidential Order N° 30/01 of 29/06/2007 Determining the exact number of years of land lease). This gives the individual the necessary sense of security to encourage investment in the land but allows the government more easily to dictate how the land should be used and managed. Nonetheless, even with long- term leases, come rights which can be sold, exchanged or mortgaged in much the same way as rights of ownership.
SCOPE OF RIGHTS OVER LAND
Rights based on Land may be transferred through different individuals or it may be guaranteed through succession; it may be guaranteed gratuitously, leased or sold; it may be mortgaged according to requirements and procedures provided for by ordinary civil law (article 34). The State recognizes the right to freely own land and shall protect the owner from being dispossessed of the land whether totally or partially (art.56).
The land law states that ‘all buildings, crops and other works found on land are presumed to have been performed by the owner of the land using his or her money or otherwise, and are presumed to be his or hers in case there is no proof to the contrary. However, this does not prohibit any other person to own buildings, crops or any other works on other persons’ land in procedures provided for by law’ (art. 57) In addition the law entitles any person deprived of land ownership to receive a fair and prior compensation, such expropriation must be in public interest, which itself is left to the appreciation of the authorities concerned (whether national or local authorities) (art. 67).
LIMITATIONS OF RIGHTS OVER LAND
The ownership of land under the new organic law governing the management and use of land in Rwanda is without doubt limited in some respects. First, the landowner has no right over minerals or any other wealth underground; they belong to the State. However, he or she is allowed before others to enjoy rights of their exploitation upon his or her request and if he or she is capable (article 55). Secondly, the landowner(s) shall enjoy full rights to exploit his or her land without prejudice to laws related to human settlement, general land organization and use. For example a landowner cannot freely decide to plant trees on a land earmarked for housing invoking his or her ownership rights or building houses on a land not earmarked for that purpose (article 54). Thirdly, a landlord shall not hinder underground activities or those in the space above his or her land when such activities are of general interest. If such activities cause any loss to him or her, he or she shall always receive appropriate compensation (article 67). Lastly, the landlord shall not act against other people’s rights by refusing access to his or her neighbours homes when there is not any other way, blocking water that is naturally flowing through his or her land from other persons’ land above his or hers, or refusing other people to draw water from a well found on his or her land unless he or she can prove that such a well has been dug or built by him or her; unless it is considered to be necessary( article 60).
- OBLIGATIONS OF THE LANDOWNER
The landowner, as well as any other user of the land is obliged to obey laws and regulations regarding protection, conservation and better exploitation of the land (article 61). Assignment, concession and lease contracts shall specify conditions to be fulfilled for the conservation, and exploitation of the land in accordance with the intended use of the land
(article59). Landowners shall always respect clauses in the national general land organisation and utilisation plan (article 66). They also have an obligation to pay land tax determined by a specific law (article 68). They also have an obligation to register their land (article 30).
- Prescription term relating to land rights acquisition
Prescription has a particular meaning in the Rwandan context. In general, some acquire land by prescription if they are the uncontested occupant for a certain period specified by law and genuinely believe during that period that no one else has any rights to the land, e.g. they believe it is vacant or voluntarily abandoned. In Rwanda, the notion of acquiring land by ‘’prescription’’ refers to the rights acquired by those who took over the properties of the Rwandans who fled into exile in 1959 and during the sixties and seventies. The 1993 Arusha Peace agreement stated that anyone who has been absent from Rwanda for more than ten years should not reclaim their property if it has been occupied by someone else (Article 4). This was agreed by the warring parties at that time because they knew that there would be massive social tension if people who had fled the country decades earlier suddenly returned and tried to reclaim their properties. However, this provision is quite controversial in law because it cannot be said that the refugees left their homes voluntarily and relinquished rights to their property. Moreover because of the occurrence of genocide in 1994, part of provisions of the Arusha Accords became inoperative. However since 1996 the government addressed the issue in a way to improving social harmony. Thus in some provinces, it facilitated the sharing of land between the land occupiers and the returnees. Still a law was needed to regulate the question.
Accordingly the 2005 Organic Law, “in matters related to land, the right to pursue landlordships shall be prescribed for thirty (30) years)” (article 70). “Persons, who by force, or through fraudulent means, occupy vacant and escheat land or other people’s land, cannot invoke the interests of the right to prescription to claim that the right to pursue the land extincted(sic), prescribed or that they have full ownership, even if they have occupied it for a period longer than the period of prescription.” (article 71). Persons who own other people’s property, whether borrowed land for use or residential houses found on that land shall not definitively own the land due to reasons of prescription whatever the length of the period of time of their occupation (article 72 para. 1). Among the members of the same family, there shall be no extinction of rights of prescription. If a person disappears, although he or she spends a long time, at any time he comes back he can pursue his or her rights in accordance with the family civil code (article 72, para. 2). This provision aims at protecting the family interests. The 2005 Land Law recognises land sharing which was conducted from the year nineteen ninety four (1994) and states that holders of such land shall enjoy the same rights as those under customary holdings. However, matters related to this sharing of land are not subject to compensation that is provided for by this organic law (article 87).
The current law provides for both administrative as well as penal sanctions. Of the administrative sanctions is the confiscation of the degraded or unexploited land. Such sanctions will be imposed following the reports that will have been given by the land commission that will have monitored the use of the land by the owner. The owner will however, after proving the capacity to exploit the confiscated land, have a right to repossess this land through a request that will be submitted to the lands commission (art.78). The penal sanctions on the other hand will include imprisonment as provided for by the penal code and this law, as well as fines.
- Settlement of disputes over land rights
Matters arising from land disputes are heard by competent courts and through procedures provided for by law. Before the matter is taken to the court, the parties to the dispute are required to seek a solution of the problem from the mediation committee at Sector level. This concerns the land that has no authentic title deeds (article 53).
Extra-contractual or tort obligations arise from one’s act or omission which causes a damage to someone or his/her property (for example, from wilful acts or negligence). Extracontractual obligations are subdivided into tortuous and quasi-tortuous obligations.
– Example of tortuous liability arising from intentional homicide, voluntary injury, etc. (Art. 258 CC B II);
-Examples of quasi-tortuous (non-intentional) civil liability/obligation results from negligence, civil action arising from non-intentional homicide (manslaughter), involuntary injury, etc.