Chapter One – Introduction to Basic

Essences of Land
 What is Land?
 Rights to Land
 Property
 Forms of Ownership to Land

 Nature and Scope of Land Rights in Ethiopia

Scope and Objects of Land Rights

Ownership of Land in Ethiopia

Governing Land Laws in Ethiopia

  What is Land?
Williamson, I., Enemark, S., Wallace, J., & Rajabifard, A. (2010).
Land Administration for Sustainable Development pp 40-41
 What is Land?

In legal theory, land includes :

- the surface of the earth ,
- The air above the surface and
- The depth below the surface to the earth’s center.

exampled by an inverted pyramid having its tip, at the center of the earth, extending
outward through the surface at the boundary lines of the tract, and continuing on upward to
the heavens
Therefore Land includes :
- the ground, soil, surface of earth,
- everything attached to the earth/surface (trees and
herbage, or houses and other buildings.)
- every thing under it (water, mineral)
- the air above it.
 To Summarize Land is:
 Ground + fixtures on it + natural resources beneath ground + rights
(eg. easement)
 Ground + fixtures (eg. Building)

 Ground only

 In Ethiopia land signifies only the ground and plants fixed thereon

Art. 1133 of Civil Code

In Ethiopia land laws can be categorized as:
- General law ( Civil code)
- Special laws ( lease, environment, natural resource…)
 Ownership
- The right to assert that something is one’s
own, may be asserted against all comers.
- In former times considered as trinity of rights:
-utendi, (Use it)
- fruendi, (Use its fruits) and
- abutendi (abuse)
 Right to Land
In a mature legal system one may have the following rights:
 Possession (physical control)

 Use and enjoyment

 Right to manage the thing (manage the use of)

 The right to the income (fruit of a tree, offspring of an animal, rent of land,
profit from investment on land)
 The right of transmissibility of the above rights (this is right one is provided
to transfer rights not the land itself)
 The right to transfer the land itself (inherit, sale)

 The right to do away (destroy a house), but it is limited for public safety and
health reasons
 The right to exclude others (ownership is a right claimed against the world,
no one is allowed to interfere in one’s ownership right)
Discuss which rights are enjoyed in Ethiopia?
 Forms of Ownership of Land
 There are four forms of land ownership in the world:
- Open access
- Communal ownership
- State ownership
- Private ownership
 Open access
 There are some things in respect of which no one has property rights.
 Each of us has a privilege (freedom) to use such things , and the rest of the world
has no right to limit us
 To put it in terms of exclusion, none of us has the right to exclude others from
such things, nor do we ourselves have the right not to be excluded from use.
 Every person has a free access to use or exploit such things,
 The assumption is that either they are not highly valued , or abundant not
exhaustible (air and sunlight), Waking paths, parks, radio/TV waves
 Is it possible for ETV to force us to subscribe? Or should it limit its services by
putting codes etc?
 It is not possible to force the state or individuals to provide or maintain its
availability
 Communal Ownership

 Communal ownership of land refers to such property of land

commonly owned by a community of a certain village or locality.
 Proc. 456/2005 defines it as "communal holding" means rural land
which is given by the government to local residents for common
grazing, forestry and other social services. Art. 2 (12)
 The defining characteristic of communal ownership is that every member
of the community has the right not to be excluded from the resource.
 Communal Ownership
 An individual who is a member of the community
therefore has not only a privilege to use the thing, but
also a right not to be excluded from it.
 The difference between open access and communal
property is that in the first case a person may not claim a
use as a matter of right, while he may do in the second
case.
 The similarity is that in both cases no body can exclude
the person from using the resource.
 In a more closed community, access is allowed only to
members (eg. Grazing pasture in a village)
 State ownership
 State ownership of land is common in many countries,
especially urban land
 30% of the US land is owned by federal and state
governments
 In Europe urban municipalities control large amount of
urban land
 In former socialist countries still some states have full
ownership of rural land
 In China all urban land and natural resources is owned by
the state and all rural land by village communities.
 State ownership
 A property completely owned by the state and when the state
is able to use by itself or allocate its use to others,
 Although it is individuals who may use the property, the state
has the ultimate power of management,
 Land neither owned by private individuals nor by the
community,
 In most countries, mountains, public highways, public halls,
parks, trans-boundary rivers and forest lands, lakes, etc are
owned and administered by the state,
 Article 2(13), of Proc. 456/2005 considers “forestlands, wild
life protected areas, state farms, mining lands, lakes, rivers and
other rural lands,” as state holding lands. Urban Land
721/2011 (preamble,title, defn.,Article 5…)
 Private ownership
 Ownership right vested in the individual person
 Provides rights of use, exchange, abuse, and exclude others from
using it. (use, rent/lease, mortgage, inherit, donate, sale, exchange)
 Widest right 1204(1) of Civil code
 Many countries recognized it, and others prohibited it (former
USSR), African countries
 In Ethiopia, land belongs to the state and the Ethiopian people. No
private ownership of land. Read Art. 40(3) of FDRE constitution.
 As a segment of private ownership, joint ownership (such as
condominium) and common ownership within a family can also be
categorized here.
 Private ownership
 Ownership right vested in the individual person
 Provides rights of use, exchange, abuse, and exclude others from
using it. (use, rent/lease, mortgage, inherit, donate, sale, exchange)
 Widest right 1204(1) of Civil code
 Many countries recognized it, and others prohibited it (former
USSR), African countries
 In Ethiopia, land belongs to the state and the Ethiopian people. No
private ownership of land. Read Art. 40(3) of FDRE constitution.
 As a segment of private ownership, joint ownership (such as
condominium) and common ownership within a family can also be
categorized here.
 The Focus of this Tutorial
1. Nature and Scope of Land Rights,
2. Ownership of Land in Ethiopia,
3. Governing Land Laws in Ethiopia,
4. Review of Existing Land Legislations.
 1. Scope of Land Rights

- It can be seen from different angles:

 The different right types included
Example: Possession,
Use for different purposes,
Rights to income,
Lease,
Rent,
Mortgage,
Donate/ gift,
Inherit …
 Scope of Land Rights
 The legal protection provided to the right types (security of the
rights)
Example – See the following Articles of the CC

Art. 1204- Definition.

(1) Ownership is the widest right that may be had on a corporeal thing.
(2) Such right may neither be divided nor restricted except in
accordance with the law.
Art. 1205 – Scope of Right.
(1) Without prejudice to such restrictions as are prescribed by law, the
owner may use his property and exploit it as he thinks fit.
(2) He may dispose of his property for consideration or gratuitously,
inter vivos or mortis causa
Art. 1206. - Right to reclaim property.
The owner may claim his property from any person who unlawfully
possesses or holds it and may oppose any act of usurpation.
 Scope of Land Rights
 The space in which the right can be practiced
- In Ethiopia ownership of land is limited beneath
and above the land “to the extent necessary for
the use of the land.” Articles 1207-1211 of the
Civil Code
- to the depth of foundations,
- to the depth of toilet/ latrines,
- to the height of buildings
 Scope of Land Rights
 Can also seen from the restrictions imposed on land
rights
 The definition of land based on the medieval concept
didn’t match modern societies,
 Modern societies limit scope of land rights b/se:
- development of aviation technology,
- interests of governments to control and
develop natural resources,
- integration of 3D concepts (apartments, condos…)
- modern infrastructures (tunnels, overpass,
underpasses)
 Scope of Land Rights

 Other restriction reasons:

- public safety,
- public health,
- public interest,
- urban beautification …
 Land Use Restrictions
Instruments of Land Use Restrictions
- Legislations are the tools/instruments of land use
restrictions,
- The commonly known ones include:
- expropriation,
- urban planning,
- building code,
- environmental protection,
- nuisance,
- civil code,
- natural resource exploitation,
 Land Use Restrictions

Major Characteristics of the Legal instruments

1. Nuisance Laws
- They describe owners of an immovable may not
disturb neighbors while using their property,
- The disturbance may include: smoke, soot,
unpleasant smells, noise or vibrations,
- They may be found in different legislations like:
- Civil Code,
- planning laws,
- building codes …
 Land Use Restrictions
2. Planning Laws
- Urban plans determines the use of urban lands,
- They determine land use type and building density,
- They also determine the building heights,
- The urban design and other elements,
- The currently effective law is Proclamation No. 574/2008 at Federal
level
3. Building Regulation
- The building code enforces the need of permission for: -
construction of new building,
-work on existing building and
- demolition of a building,
- Plan consent and building permit prior to building,
- The currently active proclamation is proclamation 624/2009 ,
- It sets the minimum standard builders and buildings should meet
 Land Use Restrictions
4. Environmental Laws
- It controls management and release of hazardous
emissions which may damage the environment,
- This may range from residential waste to dangerous
industrial wastes
 2. Ownership of Land in Ethiopia
 The source of ownership of land is the FDRE
Constitution. The Constitution under article 40(3)
The right to ownership of rural and urban land, as
well as of all natural resources, is exclusively vested
in the State and in the peoples of Ethiopia. Land is a
common property of the Nations, Nationalities and
Peoples of Ethiopia and shall not be subject to sale or
to other means of exchange
 Ownership of Land in Ethiopia
 The Constitution under article 89(5) gives
administrative power of the land to the state:
Government has the duty to hold, on behalf of
the People, land and other natural resources and
to deploy them for their common benefit and
development.
 By this delegation, the state is empowered to
hold and use land in the best interest of the
people.
 3. Governing Land Laws in Ethiopia

 The Civil Code :

- contained all the necessary rules concerning
immovable properties when codified:
- acquisition,
- possession (under property law) ,
- transfer of land either for consideration
(Contract and sales) or gratuitously (law of
succession).
- With the revolution of 1974 the private
ownership was abolished, and most rules were
 Governing Land Laws in Ethiopia
- Currently applicable if relevant and as far as it does
not contradict the latter laws
 FDRE Rural Land Administration and Land Use
Proclamation 456/2005 and the different regional rural
land proclamations to implement it in the regions,
 Urban Land Lease Proclamation No. 721/2011 and
other similar urban land lease regulations adopted by
regional states to implement it,
 Expropriation of Landholdings for Public Purposes,
Payments of Compensation and Resettlement
Proc.No. 1161/2019 are the major ones.
 4. Review of Existing Land Legislations
 4.1. Federal Democratic Republic of Ethiopia
Rural Land Administration and Land Use
Proclamation No. 456/2005
 Basic Contents of the Proclamation
1. Preamble
2. Definition of terms,
3. Acquisition of rural land
4. The Right to hold and use rural land,
5. Rural Land Use Restrictions,
6. Miscellaneous Provisions
 Preamble

The Preamble of the Proclamation tells:

 The background (the legal ground) of the
proclamation,
 The importance of the proclamation,
 The intended intention of the proclamation
 The background (the legal ground) of the
proclamation
 The legal ground of Proclamation No. 456/2005
-Chapter 3 of the FDRE Constitution – Fundamental
Rights and Freedoms (Democratic Rights)
-Article 40 (1) – 40(8) – The Right to Property
-The following are the major contents in these
articles:
 Every Ethiopian has the right to own private property. (40.1)
 Private property is any thing which is created by the labour, creativity,
enterprise or capital of the individual (40.2)
 Land is not subject to private ownership. It is the common property
of the state and the people. (40.3)
 The background (the legal ground) of the
proclamation
 Farmers and pastoralists will get land free of charge
(40.4&5).
 Investors will get land upon payment (40.6)
 Every person will have right to the immovable
created on the land (40.7)
 Government may expropriate land for public
purpose and upon payment of compensation (40.8)
Ethiopia_1994 Constitution.pdf
 The importance of the proclamation
The major ones are:
- Ensure sustainability of natural resources by using
Agro-ecology based land use planning,
- To establish a database containing information
about the parcels and the holders,
- To create conducive environment for land
administration,
- To encourage private investors to invest in rural
land (agriculture)
 Definition of terms
- Rural land – Land outside the municipality 2(1),
- Rural Land Administration – Process of :
 providing rural land holding security,
 Implementing land use plans,
 Resolving land disputes,
 Enforcing restrictions and obligations,
 Organizing information about land parcels,
 Analyze the land information,
 Provide land information to users Art. 2(2)
 Definition of terms
- Holding Right Art. 2 (4):
 Use land (agriculture and natural resource devpt.),
 Lease,
 Bequeath (family members, legal heirs),
 Acquire property,
 Sale the property acquired,
 Exchange the Property,
 Bequeath the property
 The Right to hold and use rural land
• Acquisition of Rural Land
 The proclamation (RLAUP) creates free
access to rural land (art. 5.1. a.&.b)
 But there are requirements of :
Residency (the person must reside in the area)
Profession (the person must have a desire to
engage in agriculture)
Age (the person must be above 18 years)Proc
No. 456-2005 Rural Land Administration and La
nd Use.pdf
 The Right to hold and use rural land

 The type of right provided to peasants and pastoralists is

known as “holding right.”
 Holding right is secure because:
- Holding right is guaranteed by certificate (art.6)

- The right is not limited by time (Art. 7.1)

- No distribution without consent (art.9.3)
- Compensation in the event of expropriation (7.3) Proc
No. 456-2005 Rural Land Administration and Land Use.
 Acquisition of Rural Land

• Modalities of Land Acquisition

For farmers /pastoralists
- Donation,
- Inheritance or
- Grant from the government Art. 5 (2)
For investors, institutions, NGOs according to their
objectives an related laws use right is given Art.5(4)
 Acquisition of Rural Land

 Family members who have income and live elsewhere will

not benefit from inheritance,
 The laws talks about inheritance by will,

 Land transferred to investors

- It signifies, large-scale agricultural land transfer on lease or

sale basis,
- The purpose is to produce food crops, bio-fuel, sugar,

cotton, food oil, and other industrial inputs ,

 Acquisition of Rural Land
Justification for government (Giving land to
investors)
Ethiopia has been victim of food insecurity and
poverty and the land has to be used,
Hence by doing so the country will benefit in terms of:

- Capital inflow
- Foreign currency income
- Technology transfer,
- Employment opportunities
- Food security
- Saving foreign income by minimizing importing
agricultural products
 TRANSFERABILITY OF LAND RIGHTS
 Rural land holding may be transferred to others by
way of rent (farmer-farmer), lease (farmer-investor),
donation or inheritance,
 Two restrictions: all the holding may not be rented
out; and transfer for definite / limited period.
 Leased land may be given as a security to loan
(mortgage)
 Termination of land rights
• Permanent employment of the farmer that brings to him an
average salary determined by government,
• Engagement in professions other than agriculture and for which
tax is paid,
• Absence of a farmer from the locality without the knowledge of
his whereabouts and without renting the land for more than 5
years,
• Fallowing the land for three consecutive years without sufficient
reasons,
• Failure to protect land from flood erosion,
• Forfeiting land right upon written notification,
• Voluntary transfer of land through gift,
• Land distribution (the loss will be partial).
• Expropriation of land without replacement of another land
 Dispute settlement

- Discussion and agreement of the concerned parties,

- Where the dispute could not be resolved through
agreement, it shall be decided by an arbitral body to
be elected by the parties, or
- Decided in accordance with the respective regional
land administration laws (Art.12)
 Critics on the proclamation 456/2005
 The free access policy does conflict with the restriction on
land distribution,
 It created population pressure by discouraging farmers
from moving to cities in search of alternative lives,
In case of giving land for investment (implementation)
 Affects settlers since they are evicted,

 Environmental Impact Assessment has not been properly

made and followed,
o Parks , forests and wild life are affected
 No discussion with public,
 4.2. Urban Land Lease Holding Proclamation No
721/2011
Scope
 The application of the lease proclamation is limited
to only urban centers of Ethiopia,
 Rural lands are not under the lease proclamation
(Art.3) of 721/2011
Definition of Lease
 A system of land tenure by which the right of use of
urban land is acquired under a contract of definite
period
 Urban Land Lease Holding Proclamation 721/2011

Background
- Article 40 of the constitution,
- Rapid economic growth in all economic sectors,
- Rapid economic growth in all regions (Ethiopia),
- The increased dd for land due to these situation,
- To address gaps observed in the previous
proclamations,
- The need for efficient and responsible LA to
manage all the above
 Urban Land Lease Holding Proclamation 721/2011

Justifications
- Developing efficient, effective, equitable and
well-functioning land and property market,
- Sustaining free-market economy,
- Building transparent and accountable LAS
ensuring rights and obligations of lessor & lessee,
 Urban Land Lease Holding Proclamation 721/2011

Objectives
- Satisfy the increased dd for land due to the
background factors,
- Ensure good governance in the LAS
Application of Lease System
- Lease is the only way to acquire land in urban
centers of Ethiopia,
- Article 3, 5(1), 5(3) of Proc. 721/2011
- Only five years were given to apply it in all
urban centers (Was it practical?)
 Urban Land Lease Holding Proclamation 721/2011
Conversion of Old Possessions to lease system
- Old possession Defn. Article 1 (18) of 721/2011
- Old possessions are converted to lease when:
1. a property attached on an old possession is transferred to a
third party through any modality other than inheritance (Art. 6.3)
2. Regularization pursuant to the regulations of regions and
urban administrations (Art. 6.4) ,
3. an application to merge an old possession with a lease hold is
permitted, (Art. 6. 6)
4. Additionally, when the study about it is concluded by the
ministry and determined by the council of ministers Art. 6(1)
 Urban Land Lease Holding Proclamation 721/2011
Conversion of Old Possessions to lease system
Exceptions
Conversion to lease is not forced when :
- Old possession is divided among heirs/legatees upon their request,
- Divorcee couples who hold old possession divide it in accordance
with relevant laws,
- When one of the divorcees takeover,

- A replacement land provided to holders of old possession whose land

was lost by expropriation ,
- Land possessions without documentations are decided to be certified
by a directive of relevant region or city administration
 Urban Land Lease Holding Proclamation 721/2011

Acquisition of Urban Land

 Previously land used to be acquired through five means:
Auction, Negotiation, Assignment, Lot and Award,
 Currently, only Auction(tender) and Allotment (land
transfer without auction) are recognized (art.6),
 Special Auction(Tender) Art.11(7) and 11(8) of 721/2011
 As a matter of principle auction will be used,
 For activities that have public advantage land may be
transferred by allotment (upon payment of the minimum
lease price) Article 12 (1) (a-g) of 721/2011
 Urban Land Lease Holding Proclamation 721/2011
Transfer of Lease Rights
- Leasehold right is freely transferable in the current proclamation ,
- But to discourage “rent seeking” activities (seeking benefit without
adding value) the proclamation puts four strategies: (Article 24 (1)-
24(7)
- speculators who participate repeatedly in unfinished land
sale shall be denied such right,
- Sale of unfinished land requires municipal supervision,
- People who wish to sell their lease right (bare land) or half
completed construction will get very little benefit (paid lease price +
construction cost + 5% of profit gained from sale)
 Transfer of Lease Rights
Example
Ms. A has bid 200 m2 of land from the city municipality for 4000 birr/m2 (total
800,000 birr). Out of it, assume that she has made a 10% advance payment of 80,000
birr as lease price.
She constructed a foundation at a cost of 40,000 birr.
Her total cost at this point amounts 120,000 birr.
The bank interest is 5%
The current lease value of land in similar location is 5000 birr per square meter and
that gives a total value of 1,000,000 birr.
1. The seller (lessee) will get the following:
2.1. 80,000 birr (lease price paid)
2.2. 4000 (5% of 80,000 which is the bank interest)
2.3. 40,000 (construction cost)
2.4. 10,000 (5% of 200,000 birr (1000,000 – 800,000)
2. Total =134,000 (Profit=14,000).
3. Government profit = 190,000 birr.
4. Note also the new owner will pay the remaining 700,000 lease price transferred to
him from the seller.
 Urban Land Lease Holding Proclamation 721/2011

Formation of Lease Contract

- Any person who got permission to hold land should sign
lease contract with the appropriate body Art.16(1),
- The appropriate body is responsible to follow –up and
ensure the implementation of the lease contract Art. 16 (50)
Contents of the Lease Contract (Major)
- The time to start construction,
- The time to complete construction,
- Payment schedule,
- The grace period given,
- Rights and obligations of the signing parties Art.16 (2)
 Urban Land Lease Holding Proclamation 721/2011

Terminations of Lease Contract

Conditions for termination of lease contract:
- When lessee fails to use the land as per the lease contract
Art. 21 (1) to (3), Art. 25(1),
- If decision is made to use the land for other purposes by
the appropriate body due to public interest, Art.25 (1)(b),
- If the lease contract is not renewed at the end of the
lease period
 Urban Land Lease Holding Proclamation 721/2011

Terminations of Lease Contract

Considerations:
- The presence of force majeure in case of failing
to abide by the lease contract, Art. 25(2),
- Compensation in case of decision made to use
the land for other purposes due to public
interests , Art. 25(4),
- One year time is given in case of termination of
un renewed lease contract Art. 25(5).
 Informal Settlement
- No definition is given in proclamation 721/2011
about informal settlement,
- Possessions held without the authorization of
responsible body will be administered in lease if:
- acceptable by the urban plans of the towns,
- meet parceling standards of the towns,
- meet other prerequisites specified by regional
or city administration regulations, Art. 6(4),
- The regularization should be undertaken within 4
years since the enactment of Proc. 721/2011 Art. 6(5)
4.3. Expropriation of Land holdings for Public Purposes, Payments
of Compensation and Resettlement Proclamation No 1161/2019

Legal basis:
Article 40 (8) of FDRE Constitution:
Without prejudice to the right to private property, the
government may expropriate private property for public
purposes subject to payment in advance of compensation
commensurate to the value of the property.
Definition of Expropriation
The right of the nation or state, or of those to whom the power
has been lawfully delegated, to condemn private property for
public use, and to appropriate the ownership and possession of
such property without the owner’s consent on paying the owner
a due compensation to be ascertained according to law .
 Expropriation of Land holdings for Public Purposes, Payments of Compensation …

Nature of Expropriation
- Expropriation is an inherent power of the state to
take private individuals land,
- There are two limitations however:
1. Public purpose
Proc_1161_2012_Expropriation_for.pdf
2. Just compensation (refer the same for d/t
compensation types)
 Expropriation of Land holdings for Public Purposes, Payments of
Compensation …

Justification
- To get the land that government needs for the
development works,
- To provide land for the steadily growing urban
population,
- Redevelopment of urban slum areas among
others.