I recently started looking into the nature of land ownership. I was under the impression that land ownership was absolute- a person is free to lease, sell, rent, put up for collateral, or destroy their land as they see fit. Where, then, does the right of the state to tax and seize fit in?
The common sense answer- that ownership is not absolute- is mostly correct. But it’s quite interesting to look into the history of why land ownership is not absolute.
The ownership of land that isn’t subject to any higher authority- no state, no landlord, etc.- is called alloidal title or title in alloidum. In feudal times, the only person to hold alloidal title was the feudal lord. He was considered sovereign over the land. No one else had a right to interfere with his use of the property. Other types of ownership that the lord bestowed allowed the people on the land to exercise certain rights, such as the right to sublet, or the right to put the land up as collateral.
In modern nation-states, the sovereign (i.e., the government) still exercises exclusive alloidal title. That is to say, you don’t own the land, the United States does. You can’t ever remove the land from their jurisdiction because you don’t have that right. Moreover, as the sovereign, the government retains the right to tax land, seize it through eminent domain, and steal a portion of the land in the event that there is no will.
What exactly do landowners own then? They own an interest in real property. When land is bought and sold, what’s actually being legally exchanged is the interest in the land, not the land itself. This is called fee simple ownership. Interestingly, the word fee in this concept is a descendant of the word fief, or land held on the condition of feudal service.
Under fee simple ownership, the government- be it feudal lord or “we the people”- retains full ownership of the land, while the subjects of the government are free to exchange title to the land. Never does the land cease to belong to the sovereign, and thus it’s power it protected.
As I researched the nature of land ownership, and it’s descent from English common law, the blind justifications made more sense. Of course, they’re not morally right (Thomas Jefferson was in favor of alloidal title) but they make more sense.
I’d like to know your thoughts on the matter, and if there’s a professional real estate lawyer who could contribute more to the conversation, that would be great.
