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Allodial title constitutes ownership of real property (land, buildings, and fixtures) that is independent of any superior landlord. Allodial title is related to the concept of land held "in allodium", or land ownership by occupancy and defense of the land.
Most property ownership in common law jurisdictions is fee simple. In the United States, the land is subject to eminent domain by federal, state and local government, and subject to the imposition of taxes by state and/or local governments, and there is thus no true allodial land. Some states within the U.S. (notably, Nevada and Texas) have provisions for considering land allodial under state law, and the term may be used in other circumstances.For example, the Constitution of the State of Minnesota states that "All lands within the state are allodial and feudal tenures of every description with all their incidents are prohibited." Constitution of the State of Minnesota. Land is "held of the Crown" in England and Wales and other jurisdictions in the Commonwealth realms. Some land in the Orkney and Shetland Islands, known as Udal law, is held in a manner akin to allodial land in that these titles are not subject to the ultimate ownership of the Crown.
In France, while allodial title existed before the French Revolution, it was rare and limited to ecclesiastical properties and property that had fallen out of feudal ownership. After the French Revolution allodial title became the norm in France and other civil law countries that were under legal influences. In October 1854, the seigneurial system of Lower Canada, which had been ceded from France to Britain in 1763 at the conclusion of the Seven Years' War, was extinguished by the Seigneurial Tenures Abolition Act of October 1854, and a form similar to socage replaced it.
Property owned under allodial title is referred to as allodial land, allodium, or an allod. In the Domesday Book of 1086 it is called alod. Historically, allodial title was sometimes used to distinguish ownership of land without feudal duties from ownership by feudal tenure which restricted alienation and burdened land with the tenurial rights of a landholder's lord or monarch.
Allodium, meaning "land exempt from feudal duties", is first attested in English-language texts in the 11th-century Domesday Book (written in Latin), but was borrowed from Old Dutch * allōd, meaning "full property", and attested in Latin as e.g., alodis, alaudes, in the Salic law (c. A.D. 507–596) and other . The word is a compound of * all "whole, full" and * ōd "estate, property" (cf. Old Saxon ōd, Old English ead, Old Norse auðr).C.T. Onions, ed., Oxford Dictionary of English Etymology, s.v. "allodium" (Oxford: Oxford University Press, 1996), 26–27. Allodial tenure seems to have been common throughout northern Europe, but is now unknown in common law jurisdictions apart from the United States, Scotland and the Isle of Man. An allod could be converted into a fief, by the owner surrendering it to a lord and receiving it back as a fief. (1994). 9780198204589, Oxford University Press. ISBN 9780198204589 Allodial land title is common in the Isle of Man which has laws with Nordic origins. A version called udal tenure exists in the Orkney and Shetland Islands, also of Nordic origin. These are the only parts of the United Kingdom where allodial title exists, with the few exceptions. One such exception is the Scottish Barony of the Bachuil, which is not of feudal origin like other baronies but is allodial in that it predates (A.D. 562) Scotland itself and the feudal system, dating from the Gaels Kingdom of Dál Riata. In recognition as allodial Barons par le Grâce de Dieu not barons by a feudal crown grant, the Baron of the Bachuil has the only coat of arms in Scotland granted a cap of maintenance with a "vair" (squirrel fur) lining (as opposed to Stoat) by the Lord Lyon Court. Another exception is Somerset House which was vested in His Majesty explicitly not in fee simple, and is held to be allodial.
However, this distinction between common law and equity title helped develop forms of security based on the distinction, now known as the mortgage law. 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.
However, proving ownership in the absence of the documents was an impossibility, and Forgery 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 , mortgages, 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, in certain jurisdictions only documents that had been filed in the past 40 years had to be consulted to determine the chain of ownership.
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 governments of land obtained by purchase (Louisiana Purchase, Florida, Alaska), treaty (the Ohio Valley, New Mexico, Arizona, and California), or annexation (Texas, Hawaii). However, in reality, grants made prior to those territories becoming U.S. possessions were recognized; ownership under French and Spanish crown grants in the Louisiana Purchase and Guadalupe-Hidalgo/Gadsden Purchase territories remained valid. Although in Dartmouth College v. Woodward the United States Supreme Court rebuffed New Hampshire's attempt to convert Dartmouth College from a private college into a public university, the Court decided this was based on the Constitution prohibiting states from impairing the obligations of the contract which created the private corporation that owned the land, and not based on any principle that the land was somehow immune from state control.
Many state constitutions (Arkansas, Wisconsin, Minnesota, New York) refer to allodial title, but only to clearly distinguish it from feudal title. The conditions under which the government can compel the sale of privately owned real property for public necessity are established by eminent domain laws of either the federal or state governments, respectively. The Fifth Amendment to the United States Constitution requires just compensation for eminent domain compelled sale. In addition, the government powers of police power and escheat have been retained in the American legal system.
The classes of persons who can apply for allodial title and of property for which those persons may obtain allodial title are limited: A person who owns and occupies a single-family dwelling, its and the land on which it is located, free and clear of all encumbrances, except any unpaid assessment for a public improvement, may apply to the county assessor to establish allodial title to the dwellings, appurtenances and the land on which it is located. One or more persons who own such a home in any form of joint ownership may apply for the allodial title, jointly if the dwelling is occupied by each person included in the application.
After the county assessor receives the application, he transfers it to the state treasurer.
The state treasurer then determines the amount which is required to be paid by the property owner to establish allodial title. This is done by using "a tax rate of $5 for each $100 of assessed valuation on the date of the application". The treasurer must calculate, separately, the amount that must be paid in a lump sum, and for the payment in instalments over a period of not more than 10 years. These "amounts must be calculated to the best ability of the state treasurer so that the money paid plus the interest or other income earned on that money will be adequate to pay all future tax liability of the property for a period equal to the life expectancy of the youngest titleholder of the property".
If the property owner pays the lump sum amount calculated by the state treasurer, and submits proof that the home is a single-family dwelling occupied by the homeowner, and that the property is free and clear of all encumbrances except any unpaid assessment for a public improvement, "the state treasurer shall issue a certificate of allodial title". If the property owner enters into an agreement with the state to make instalment payments (in lieu of a lump sum payment), the issue of a certificate of allodial title occurs upon the receipt by the treasurer of the last payment.
Once a property owner receives a certificate of allodial title, he is relieved from the payment of all further property taxes, "unless the allodial title is relinquished by the homeowner or his heirs". Instead, the state treasurer is responsible for the payment of the taxes due.
Once allodial title is established, it "is valid for as long as the homeowner continues to own the residence unless he chooses to relinquish the allodial title".NRS 361.910 (1) Upon the death of an allodial title holder, the heir or heirs can reestablish allodial title by using the same procedure that the original property owner used.
The holder of an allodial title can voluntarily relinquish it at any time.NR8 361.915 (1) The title shall be relinquished if the property is sold, leased or transferred by the allodial title holder; the allodial title holder no longer occupies the dwelling for 150 days; or the home is converted to anything other than a single-family dwelling occupied by the owner. If allodial title is relinquished, either voluntarily or otherwise, the property owner receives a refund of the unused portion of the payments made to originally establish the allodial title.NRS 361.915 (3)–(4) Once the allodial title is relinquished, the property owner is once again responsible for all future property taxes.
The importance and benefit of establishing allodial title extends beyond the non-payment of property taxes. It also has significance in the area of homestead law. Pursuant to NRS 115.010, the available homestead exemption in Nevada is $605,000. However, if allodial title has been established and not relinquished, the homestead exemption "extends to all equity in the dwelling, its appurtenances and the land on which it is located". Furthermore, although the regular homestead exemption provides no protection against legal process to enforce the payment of obligations contracted for the purchase of the property, or for improvements made thereon (including any mechanic's lien lawfully obtained), or for legal taxes, or for any mortgage or deed of trust executed upon the property, the holder of an allodial title is fully exempt from all of these under the homestead laws. The only area within the homestead laws wherein allodial title fails to provide an extra benefit is in the realm of civil and criminal forfeiture of property. Similar to all property in Nevada, property held by allodial title is subject to forfeiture for criminal conduct.
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