We have seen the types of legislations that are widely related to land and buildings in one or another way. In the section to come, an attempt will be made to explain the major issues, problems and matters that are addresses under the wider subject. The major object of Land Law-real property- and appurtenances thereto will be further defined.
Having read this part of the chapter, the student can:
Point out and define the central subject of land law-real property.
Mention the main subject matters of Land Law.
Define fixtures in the context of the Civil Code.
Main Questions of Land Law
Land is also being regulated through the Civil Code and firstly evolves round questions regarding private law, i.e. the relationship between private legal subjects. Since the subject is related to an object, a main question is therefore how this object is being defined. As we have just seen, these questions are being answered through Title VI, Chapter 1 of the Civil Code and are therefore very important for the application and understanding of all subjects covered in the course. It is a question of deciding what a property unit is and what fixtures that are attached to this object, the real property.
Another main question consists of the provisions regarding transfer of property which are especially to be found in Title XVIII of the Civil Code. In order to create a valid purchase of a property unit, a few formalities must be acknowledged, i.e. a written contract containing certain minimum information. The rights and the duties of both the seller and buyer are also being regulated. Since a purchase of property often is an economically significant transaction for the parties, disputes often occur, i.e. the seller’s responsibility for defaults in the object. The rules regarding sale of real property are also applicable, with some adjustments, regarding exchange and donation/gift of real property.
Yet another important part of Land Law concerns mortgage and antichrisis and is being regulated in Title XVIII, Chapter 4 of the Civil Code. Property units must be said to be the most important objects of credit, not only in Ethiopia, but also in other countries. The system regarding mortgage enables the property owner to pledge the property while still being able to use it.
Another important area is the grant of rights of user and servitude/easements. The Civil Code contains rules of how to create such rights, as well as what rights and obligations that oblige the parties. The provisions on usufruct and servitude are to be found in Title VIII, Chapters 2 and 3, respectively, of the Civil Code. Maybe the most important right of user is lease of houses/ tenancy, and the provisions are mainly forcing to the lessees/ tenants advantage. These provisions are to be found in Title XVIII, Chapter 2 of the Civil Code. These rules can be said to function as social security for the lessee, and regard what demands the tenant can make regarding the achievement that the landlord is providing and consequently the payment that the lessor/landlord is entitled to.
A wider version of lease is also an important part of Land Law and will be seen in light of rural land lease and urban lease having regard to the provisions of both the Civil Code and special provisions.
Yet another important area of Land Law is the rules regarding the protection against claims from third parties. This protection is in many cases depending on that a registration has been made in the land registration authorities. The Land register is to be kept by a competent body and is an official register containing information on real properties such as who the owner is and the area of the property. These rules also apply regarding the purchasers relation to different right holders. It can also be a question of a protection from other possessions of the property at the same time as a third party is protected from losses due to entering into agreements with some one other than the owner of the property.
The Object of Land Law
Land Law evolves round several different questions all dealing with real property, i.e. the subject Land Law concerns this specific object-the real property. A fundamental question whilst studying the subject is therefore to establish the meaning of real property. Real property is divided into property units and belonging to these property units are intrinsic elements and accessories (fixtures). Title VI, Chapter 1 establishes what is to be regarded as real property.
What is to be included in the term real property is also of importance for what objects that are subject to regulation in the Civil Code but also matters for other rules concerning Land Law. However, the importance of the delimitation is greater than that. Since the term personal property is not expressly regulated in the law, but is determined negatively (meaning that what is not real property according to the Civil Code is personal property) the term real property is of significance here too.
The historical starting point concerning the division between real and private property is explained by some objects being movable and others being immovable. One therefore historically spoke of res mobiles and res immobiles. This fundamental difference created a need for a detailed legislation that differed from one another depending on the type of object. A simple example of this consists of the different rules concerning the transfer of goods purchased.
As will be clear in the subsequent sections, this division based on the mobility criterion is the fundamental of the rules, but there are departures to these rules. For example, such things as refrigerators, washing machines and keys are not immovables in that sense but the law treats them as being so. If one were to state a main rule behind the legislation of today, one might say that the rules do divide the objects between movable and immovable, but that the closer division is being made on the basis of whether there is purpose connection or not.
The term real property and its extent govern the solution of a potential dispute in different situations. For example, one situation concerns what is to be a fixture to the real property and therefore should be included in a sale, unless the parties have agreed otherwise or reversely what should not be included and therefore be regulated outside of the rules regarding real estate. This is the same function that the rules on fixtures have when mortgaging real property.
Another situation may concern when two or more owners want to divide the real property amongst them and the problems related to ownership arise. The aim is to separate the land from the fixtures. In this situation, the division that the parties have agreed upon can be failed in a later dispute where claims on the property are being made by a third party or when one of the parties no longer is satisfied with the division.
1. Real Property
Dear student please note that the term “real property” is not used in our Civil Code and as a result not commonly used in Ethiopia. In some countries the term is defined to mean land. For example, Chap 1 Section 1 of the Land Code of Sweden establishes that “real property is land. This is divided into property units….” Further, under the Swedish Land Code, buildings and other similar structures are considered to be part of the land unit.
However, our law provides firstly that “All goods are movables or immovable” (Art. 1126 of the Civil Code) and then provides that “Lands and buildings shall be deemed to be immovables” (Art. 1130 of the Civil Code). Dear student, what do you understand from this definition? It appears that land and buildings are treated as separate objects under our law. In other words, buildings do not seem to be part of the land units (unless, in fact, they are considered as intrinsic elements of the land.) Land and buildings stand on their own and treated legally as such.
Now of the two approaches, i.e. the Swedish approach which defines building as part of the land unit, and the Ethiopian approach which defines building as separate object from a land unit, which one is better in solving potential disputes and for understanding? Do you recall what we said under section 1.2.3? Explain and give examples to show the problems.
What then would real property involve under our Civil Code? Obviously, under our law real property, the object of Land Law, would mean both land and buildings! As we noted earlier, in this material, we are not always going to mention the words “Land” and “Buildings” together for the interest of place; rather what is mentioned of “Land” may, mutatis mutandis, apply to “Buildings”.
2. Fixtures (Intrinsic Elements and Accessories)
The rules concerning fixtures are to be found in Title VI, Chapter 1 of the Civil Code. Our law does not use the word fixture; instead it uses the words “Intrinsic elements” and “Accessories”.
Art. 1131. Intrinsic elements of goods 1. Principle
Unless otherwise provided, rights on, or dealings relating to, goods shall apply to all intrinsic elements thereof.
Art. 1132. 2. Definition
Anything which by custom is regarded as forming part of a thing shall be deemed to be an intrinsic element thereof.
Anything which is materially united to a thing and cannot be detached there from without destroying or damaging such thing shall be deemed to be an intrinsic element thereof.
Art. 1133. 3. Trees and Crops
Trees and crops shall be an intrinsic element of the land until they are separated there from.
They shall be deemed to be distinct corporeal chattels where they are subject to contracts made for their separation from the land or implying such separation.
Art. 1134. 4. Rights of third parties
A thing which becomes an intrinsic element of a movable or immovable shall cease to constitute a distinct thing.
All the rights which third parties previously had on such thing shall be extinguished.
Nothing shall affect the right of such third parties to make claims based on liability for damages or unlawful enrichment.
What can you observe from the reading of the above provisions?
First and foremost, we should understand that the provisions equally apply to both movable goods and immovable goods. Thus, any dealing relating to an immovable property be it land or house applies to the intrinsic element thereof, unless there is agreement to the contrary.
A sells a house to B, then the sale contract covers the house and any intrinsic part of it.
X, a farmer, leases a 5 hectare agricultural land to Y, the lease applies both to the land and any intrinsic element of same.
C, a lessor/landlord, gives his 200 sq.m house to D, a tenant for a term of 3 years. The agreement applies to the house and any intrinsic element thereof.
But what is the meaning of an intrinsic element of a good? There are two ways whereby we can identify an intrinsic element of an immovable property. The first determining factor is custom. If a custom of certain people considers a thing as forming part of another thing, then that thing is an intrinsic element of the other. For example, if according to custom of Gojam, a stone is part of the land unit on which it is situated, then the stone is an intrinsic element of the land. A farmer who leases that land will transfer it together with all stones on that land. Secondly, a thing which is materially united to another thing and as a result cannot be separated there from without causing damage to it is said to be an intrinsic element of the thing. This is true irrespective of the custom of the area in which the thing is located.
A thing which was distinct before may by some act become an intrinsic element of another thing. Then the thing shall cease to constitute a distinct thing. At the same time, all the rights which third parties previously had on such thing shall be extinguished although they are still entitled for compensation.
Trees and crops are always intrinsic elements of the land unit on which they stand. But when they are separated from it, they are no more part of the land unit. In that case, they will constitute a distinct corporeal chattel, i.e. personal property. In addition, if a transaction is made with respect to the trees or crops regarding or implying their separation from the land, they shall be deemed to be distinct corporeal chattels.
Are buildings intrinsic elements of the land unit on which the stand according to our law? Why? Why not?
Art. 1135. Accessories 1. Principle
In doubtful cases, rights on, or dealings relating to, things shall apply to the accessories thereof.
Art. 1136. 2. Definition
Anything which the possessor or owner of a thing has permanently destined for the use of such thing shall be deemed to be an accessory thereof.
Art. 1137. 3. Temporary separation from the thing
No accessory shall lose its character of accessory where it is temporarily detached from the thing to which it is destined.
Art. 1138. 4. Rights of third parties
The rights which third parties may have on a thing shall not be affected by such thing being destined to the use of a movable or immovable.
Such rights may not be set up against a third party in good faith unless they are embodied in a written document dated prior to the thing having been so destined.
What can you observe from the reading of the above provisions?
Once again, we should understand that the provisions equally apply to both movable goods and immovable goods. Thus, any dealing relating to an immovable property be it land or house applies to the accessory thereof, unless there is an un doubtful situation having effect to the contrary. We can imagine that such an un doubtful situation excluding the accessory from the application of the dealing relating to an immovable occurs when there is agreement to that effect.
A sells a house to B, then the sale contract covers the house and any accessory thereof.
X, a farmer, leases a 5 hectare agricultural land to Y, the lease applies both to the land and any accessory thereof.
C, a lessor/landlord, gives his 200 sq.m house to D, a tenant for a term of 3 years. The agreement applies to the house and any accessory thereof.
But what is the meaning of an accessory of a real property? An accessory of an immovable property is a thing which the possessor or owner of the property has permanently destined for the use of the property. Therefore, there are two criteria whereby we can determine whether or not a thing is an accessory of a real property. One is that the thing, i.e. the accessory must have been placed or put to the use of the real property by the possessor or owner of the property. This can be referred to as “owner connection”. If any other person other than an owner or possessor places the thing, it cannot be considered as an accessory, but a personal property. The second important criterion is that the thing must have been placed to the immovable for permanent use of the immovable. This can be referred to as “purpose connection”. Hence both the owner connection and the purpose connection must exist together for us to treat a thing as an accessory of an immovable property. Any temporary separation of a thing from the property to which it is destined does not end its nature as accessory. This, however, does not mean that the owner is prevented from putting an end to the character of accessory of such thing. With out affecting the rights of third parties in good faith, the owner can do so with the intention of permanently ending the accessory character of the thing.
The accessory can be physical or legal. For example, a permanent partition, lift, handrail, water pipe, heating, lighting, power plug and other such like instrument, central heating boiler, heating radiators, heater, tiled stove, inner window, awning, fire extinguisher, civil defence material and key are accessories to a building and are physical fixtures. On the other hand, a building or other facility constructed outside the property unit intended for permanent use in the exercise of a servitude/ easement in favour of the property unit but does not belong to the property unit where it is situated is an accessory to the property unit. And this is a legal accessory or legal fixture.
Assume that a previously distinct thing now becomes an accessory to a real property. Assume further that a third party had a right on the thing. What will happen to such right when the thing is converted into an accessory? In such case, the rights of third parties shall not be affected if two conditions are fulfilled. First, the owner must be in good faith whilst putting the thing as accessory. Second, the rights of the third party must have been embodied in a written document dated prior to the thing having become an accessory.
Can you please give one example for each above conditions?
Is there distinction between intrinsic elements and accessories regarding rights of third parties? Compare Art.1134 and Art. 1138 of the Civil Code.
Recently, Land Law has started to be treated as a separate specific subject of law. It consists of rules regarding real property, i.e. land and buildings. Real property, land, is divided into property units. Real property concerns itself with rights in rem, or relating to land.
In Ethiopia, immovable property, i.e. lands and buildings together constitute real property. This approach under our law is different from the other approach that defines land as real property. An example for the latter approach is the Swedish law. Land Law deals with the rights and restrictions related to immovable property. Specifically, it deals with such matters as transfer of property, land registration and cadastre, lease, and mortgage. Legislations on immovable property cover land administration especially land register and cadastre, planning and building, environment, forestry, and cultural heritage.