23 November 2020 Written by  W/GEBRIEL & MELKAMU BELACHEW

Some Basic Land Legislation

 

 

Overview

In the previous section, we have tried to define land and other immovbles both from a wider and local context. We have defined real property. In this section, we are going to see the different types of laws under the regime of ‘Land Law’. Land Law should some how have some understandable, if not watertight legislative limits and should not be conceived as a boundless subject. Hence, we shall see the fundamental laws which we believe are to be addresses by the subject.

 

Objectives:

 

After going through this section, one would be able to:

  • Appreciate the practical importance of a comprehensive legislation on immovable properties.

  • Describe many of the existing laws in Ethiopia which regulate various aspects of immovable or real property.

  • Explain the nature and meaning of each of these legislations. 

 

 Code on Immovable Property: Land Law in Prospect

 

Presently Ethiopian general immovable property legislation is found in different titles and parts of the Civil code. For example, the definition for immovable property is found in Title VI, some rights in rem, i.e. real property such as usufruct, servitude, in Title VIII, public domain, expropriation, association of land owners, and town planning in Title IX, register of immovable property in Title X, and contracts relating to immovable properties such as sale, lease and mortgage in XVIII of the Civil Code.

 

Do you think such arrangement is simple and workable?

 

Today, legal practitioners in Ethiopia actually find it difficult to apply the legal provisions in the Civil Code. In fact, it is not unusual to find a judge who even is not well aware of the meaning and existence of some provisions such as those on town planning and registration. No doubt, lack of adequate curriculum addressing real property has been one major factor for this. However, the location of those economically significant laws at different parts and contexts in the Civil Code is even more important contributing factor for the problem.

 

Starting from the careful conceptual analysis, real property or immovable property, on which quite much of our life is dependent especially in our agrarian society, must be dealt with comprehensively, covering all subjects of importance about the subject. Even a slight confusion in this regard means a lot in terms of the implication in the economy and life. Because, in the absence of simple and complete legislation, land administration in Ethiopia at all levels will simply be impossible thus curtailing the effort towards sustainable economic development.

 

Therefore, the collection of all titles of the Civil Code dealing with immovable property and restructuring them in a comprehensive, simple, and logical order is a decisive measure which the present condition of the country seeks a lot. Quite many countries in the world are following this trend with many visible fruits of development and prosperity. For example, in Sweden, many matters relating to real property are regulated in a single legislation called “Land code”.

 

Some of the advantages of having a systematically arranged legislation on immovable are:

  • Immovable properties will get the degree of attention needed taking into account their importance to the economy.

  • Practitioners and others involved in the subject will find it easy to apply in any dealing with real properties.

  • Immovable legislation will start to contribute, as it must, vibrantly to our growth while it will stop to be an “untouchable zone”.

  • Immovable will be efficiently managed or administered thereby bringing the highly sought sustainable development.

  • It will create a favourable condition to create other legislation while capitalizing on history and culture.

Nowadays, there are some moves toward a related direction. The Environmental Protection, Land Administration and Use Authority (EPLAUA) in the Amhara National Regional State has recently initiated a single, comprehensive legislation on Rural Land Administration. It is just a matter of time what the result of this initiative will be. Again, the use of such legislation is of an irreplaceable importance.

 

Real Property Registration Legislation

 

One critical area of Land Law that requires an active legal regime is registration of real property. Cadastre and land register are two important systems of effective administration of immovable properties. The problem is that in Ethiopia such laws generally do not exist or if they exist, they are rendered inapplicable. As we shall see in great detail, the Civil Code provisions on the registration of real properties are not activated and the recent rural land registration laws are not only inadequate but also have started to be applied only in few parts of the country (Amhara, Tigray and Oromia) in varying degrees. In fact, the start by itself is quite encouraging.  In addition, laws on property formation measures such as partition, subdivision, and reallotment which are necessary preconditions to undertake cadastre and registration have not been put in place yet.

 

Planning and Building Legislation

 

The Civil Code has one chapter (Chapter 4) under Title IX dealing with town  planning areas. Let us see the most basic among these provisions.

 

Art. 1535. - Creation of area.

( 1) Town-planning areas may be created by Imperial Decree with a view to promoting the development of towns in an economically sound manner.

(2) The Decree shall fix in a precise manner the limits of the area.

 

Art. 1536. - Plan.

(1) The municipality shall draw up a plan relating to each town-planning area.

(2) The plan and any amendment thereto shall be of no effect unless approved by Imperial Decree and published in the Negarit Gazeta.

 

Art. 1537. - Contents of plan.

(1) The plan shall, where necessary, divide each area into sub-areas.

(2) It shall fix in a general manner the restrictions and servitudes which it may be necessary to impose on the rights of the owners within each sub-area.

 

Art. 1538. - Carrying out of plan.

(1) In carrying out the plan, the municipality may impose the necessary restrictions on the rights of the owners within the area.

(2) It may in particular impose servitudes not to build, rights of way or servitudes relating to municipal sewers and pipes.

(3) It may, where necessary, use expropriation proceedings.

 

Art. 1539. - Compensation.

(1) The owners whose rights are restricted or whose land is expropriated shall be entitled to compensation.

(2) Such compensation shall be fixed by appraisement arbitration committee in accordance with the provisions of Chapter 1 of this

Title (Art. 1473.1476).

 

Art. 1540. - Building permit.

No person may construct a building within a town-planning area unless he has given notice of his intention to build and been granted a building permit in accordance with regulations.

 

What do we understand from the reading of the above provisions?

 

The rules envisage the establishment of town planning, town plan, building permit and compensation during expropriation. Almost all of these and other matters in this part/chapter of the Civil Code are regulated in sounder manner under the recent laws which we shall subsequently discuss. Hence it appears that Chapter 4 of the Code is impliedly repealed by the newer legislations.

 

The present basic law on urban planning is the Urban Planning Proclamation No. 574/2008, adopted at national level and repealing the Preparation and Implementation of Urban Plans Proclamation No. 315/1987. As usual, this law gives the states powers and duties to implement it which is commonly accomplished by adopting a similar legislation.

 

The reasons compelling the adoption of this law are:

 

  • The need to regulate the proliferation of unplanned urban centres by sound and visionary urban plans.

  • The need to bring about an integrated and balanced national, regional and local development.

  • The need to take into account the existing federal structure of government and the central role of urban centres in urban plan preparation and implementation, and

  • The need to create a favourable condition for public and private stakeholders to fully participate in the process of urban plan initiation, preparation and implementation on the basis of national standards.

                          

 

And the objectives of the law are establishing a legal framework in order to promote planned and well developed urban centres; and regulating and facilitating development activities in urban centres and thereby enhance economic development of the country.

 

According to this important law, any process of urban plan initiation and preparation shall follow ten principles which are:

  1. Conformity with hierarchy of plans,

  2. Sharing the national vision and standards as well as capable of being implemented,

  3. Consideration of inter-urban and urban linkages,

  4. Delineation of spatial frame for urban centres in view of efficient land utilization,

  5. Ensuring the satisfaction of the needs of society through public participation, transparency and accountability,

  6. Promotion of balanced and mixed population distribution,

  7. Safeguarding the community and environment,

  8. Preservation and restoration of historical and cultural heritages,

  9. Balancing public and private interests, and

  10. Ensuring sustainable development.

 

Based on the national and regional development strategies and schemes three hierarchy of plans shall be considered. These are national urban development scheme, regional urban development plan, and urban plans. Further, the law recognizes two types of urban plans. They are city wide structure plan and local development plan.

 

According to Art. 9, a structure plan is defined as a legally binding plan along with its explanatory texts formulated and drawn at the level of an entire urban boundary that sets out the basic requirements regarding physical development the fulfilment of which could produce a coherent urban development in social, economic and spatial spheres. Any structure plan shall indicate at least the following:

  1. the magnitude and direction of growth of the urban centre,

  2. principal land use classes,

  3. housing development,

  4. the layout and organization of major physical and social infrastructure,

  5. urban development intervention areas of the urban centre,

  6. environmental aspects, and

  7. industry zone

 

According to Art. 11, a local development plan is a legally binding plan depicting medium term, phased and integrated urban upgrading, renewal and expansion activities of an urban area with the view to facilitating the implementation of the structure plan by focusing on strategic areas. Any local development plan shall state, as may be appropriate:

  1. zoning of use type, building height and density,

  2. local streets and layout of basic infrastructure,

  3. organization of transport system,

  4. housing typology and neighbourhood organization,

  5. urban renewal, upgrading and reallocation of intervention areas, and

  6. green areas, open spaces, water bodies and places that might be utilized for common benefits, and

  7. any other locally relevant planning issues.

 

Other principles include compensation, development permit and the right to land information. According to Art.27, any developer desiring to commence a development activity in an urban centre shall apply for a development permit. As per Art.21, any urban landholder whose land holding is dispossessed as a result of implementation of urban plans shall be paid compensation pursuant to the relevant laws. Lastly, by virtue of Art.35, any interested party is entitled to have information as to the development of a plot of land in the jurisdiction of an urban centre.

 

The other laws are related to buildings. Specially, condominiums are recent phenomenon in Ethiopia and a law was issued at national level called Condominium Proclamation No. 370/2003. The objectives of this proclamation are:

 

  • to implement other alternatives of urban land use in addition to plots basis urban land use.

  • to narrow the imbalance between demand and supply of housing.

  • maintain beauty of the urban areas

  • to improve land use and supply of houses, and

  • to create favourable conditions to private developers and co-operatives.  

 

The proclamation regulates such matters as registration of condominium, unit ownership, sale and lease of a unit, unit owners association, and amalgamation of association, common elements, and common expenses. It also repeals the Civil Code provisions on ownership of stories and suites of a building under Title VIII, Chapter 1, Section 2, and paragraph 2, Arts. 1281-1308 on a condominium governed under the same law.

 

Regional states have the power to issue and implement condominium legislations of the same nature. For example, the ANRS has issued in 2006 a law called the Amhara National Regional State Condominium Ownership Determination Proclamation No.141/2006.

 

Environmental, Forestry, and Cultural Heritage Legislations

Environment

 

Environmental legislations are available both at federal and regional level. At present, at the federal or national level, there are three proclamations dealing with the environment. These are the Environmental Protection Organs Establishment Proclamation No. 295/2002, the Environmental Pollution Control Proclamation No.300/2002, and the Environmental Impact Assessment Proclamation No. 299/2002.

 

The first proclamation assigns responsibilities to separate organizations for environmental development and management activities with the view to establish a system that fosters coordinated but differentiated responsibilities among environmental protection agencies at federal and regional levels. This proclamation re-establishes the federal environmental protection authority. Article 3 reads as follows:

 

  1. Establishment

1) The Authority is hereby re-established as an autonomous public institution of the Federal Government.

2) The Authority shall be accountable to the Prime Minister.

 

By virtue of Art. 5, the authority has the objective of formulating policies, strategies, laws and standards, which foster social and economic development in a manner that enhances the welfare of humans and the safety of the environment sustainable. Toward this end, it shall spearhead in ensuring the effectiveness of the process of their implementation.

 

This law empowers regional states to establish or designate an independent regional environmental agency that shall be responsible for;

  1. coordinating the formulation, implementation, review and revision of regional conservation strategies,

  2. environmental monitoring, protection and regulation, and

  3. ensuring the implementation of federal environmental standards

 

The major legislation is the Environmental Pollution Control Proclamation No. 300/2002. This law has been adopted to protect the environment, to safeguard human health and wellbeing, to maintain the biota and the aesthetic value of nature, and to eliminate or mitigate pollution as an undesirable consequence. More specifically, the law addresses control of pollution, management of hazardous waste, chemical and radioactive substance, and management of municipal waste.

 

The Environmental Impact Assessment Proclamation No. 299/2002 is the third legislation of importance to us. The main objectives of this legislation are:

 -to help predict and manage the environmental effects which a developmental activity entails.

-to provide an effective means of harmonizing and integrating environmental, economic, cultural, and social considerations into a decision making process in a manner that promotes sustainable development.

-to foster the implementation of the environmental rights and objectives enshrined in the constitution, and

-to bring about administrative transparency and accountability, and involve the public in planning and decision making.

                

This law regulates such matters as considerations to determine impact, environmental impact study report, public participation in environmental impact study report, and others.

 

 Forestry

Normally, in the Civil Code, trees are intrinsic elements of the land on which they stand and, as a result, are immovable properties. Historically, there were a number of legislations on forests. These include the State Forest Proclamation No.225/1965, Private Forest Conservation Proc. No.226/1965, and Putative Forest Proclamation No.227/1965.  At present, all these laws are repealed. The main legislations which regulate forest conservation, development and utilization are the Convention on Biological Diversity, 1994, to which Ethiopia is a party, the Forestry Conservation, Development and Utilization proclamation No.94/1994 and the Trade of Saw Logs and Veneer Logs Regulation No. 351/1968.

 

Under the major legislation, Proc. No.94/1994, there are three types of forests, namely, state forests, regional forests, and private forests. As per Art. 2(6) of the proclamation, “state forest” is,

 

 “a forest which is to be demarcated by a regulation to be issued by the Council of Ministers upon the recommendation of the Ministry of Agriculture and that are given special consideration so as to protect the genetic resources, or conserved to keep the ecosystem with a programme that covers more than one region.”

 

According to Art.2(7), regional forests are “forests designated by the official Gazette of each region as being so which are not either a state or private forest, and found within a specific region or developed by the said region. They are owned by the regional states in the same context as state forests.

 

Private forests are forests developed by any private person, peasant association or associations organized by private individuals. The owners of private forests are required to develop forests in a sound manner, and replace trees made use of in different ways, just to mention few duties as per Art. 6(2). Related to private ownership of forests are community forests. This is a type of forest ownership by peasant associations or associations organized by private individuals. It includes planting community woodlots, agro-forestry, planting for catchments protection, windbreaks, shelter belts and road side plantation.

 

Cultural Heritage/Antiquity

According to Art. 2(a) of proclamation No.229/1966 and Export of Antiquities regulation of 1969, Art.3, antiquity includes the totality of cultural objects that are products of human activity originating prior to 1850 E.C. and objects of historical and archaeological interest dating from before 1850 E.C. that bear witness to the history and tradition of the country and is people. Accordingly, the following categories of objects may be considered as antiquities:

-Works of craft-such as tools, poetry, crosses, inscriptions, coins, weapons, jewellery, etc.

-Items of artistic interest-planting and drawings, produced entirely by human hand on any support and in any unilateral original prints and posters , and photographs, original artistic assemble, ages and montages in any material, works of statutory art and sculpture, etc.

-Manuscripts and incunabula-codes, books, documents or publication of special interest.

-Items of numismatic (medals and coins) and philatelic interest.

-Archives including textual records, map and other cartographic materials, sound recordings and machine recordable records,

-Ancient palaces, religious buildings such as ancient churches, monasteries, mosques, castles, obelisks, etc.

-Products of archaeological excavations conducted on land, underground, in the sea bed including the sites of such exploration and excavations.

-Places associated with historical events such as battle fields.

-Items resulting from the dismemberment of historical monuments,

-Materials of anthropological, pathological and ethnological interest, etc.