WHAT does it mean to own land in Cambodia? The two types of rights over land recognized
under Cambodian law are: temporary possession rights and titled ownership rights.
Generally, "temporary possession" is a condition where ownership has not
vested in any one person. Thus, a third party may claim or contest the landholder's
rights to the real estate. On the other hand, "titled ownership" places
ownership in the title holder and thus better protects the title holder's interest
in the land.
First of all, I will discuss the definition of temporary possession under the 1992
Land Law. As defined under the Land Law, the concept of temporary possession is similar
to what the Anglo-Saxon system calls adverse possession, in which an individual may
obtain ownership over unoccupied, abandoned and unregistered land by fulfilling several
conditions. Some of the requirements include:
- Obtaining possession in good faith and without the use of violence and fraud.
This means the possessor must obtain possession of the land without using fraud and
without knowledge as to who is the owner of the land.
- The possessor must continuously and exclusively occupy/claim the abandoned land
on his/her own behalf.
- The possessor must notify the public that he/she occupies the land. Notice to
the public is accomplished when possessor files a claim over the land at the Khum
and Sangkat levels.
After five consecutive years of fulfilling the requirements mentioned above, the
Land Law states that the "temporary possessor shall become a "legitimate
owner of that land" and "the rights of the temporary estate possession
will become the right of ownership after that estate has been recorded in the ownership
register." Therefore, the concept of temporary possession is meant to apply
to the period when ownership of land is not solidified in any one individual until
certain conditions are fulfilled. Once all conditions are fulfilled, ownership is
vested in one person.
Other than land located in Phnom Penh, issuance of titled ownership (title deeds)
for improved and unimproved land can be obtained for most land located in Cambodia,
provided the conditions mentioned above are satisfied. However, most landowners in
Cambodia do not have a POT or title deed. A large part of Cambodia's land remains
unregistered. These unregistered landowners are usually poor Cambodians who cannot
afford to pay the expenses involved in registration, obtaining a POT or a title deed.
The Phnom Penh Municipal Land Office uses "temporary possession" to identify
the rights of landowners who have "unimproved land" (i.e., rice fields
or land with no buildings on it). A Temporary Occupation Permit ("POT")
or Deed of Possession (DOP) is formally issued for unimproved land located in the
Phnom Penh Municipality. A POT or DOP landowner only has temporary possession rights
over the unimproved land. Title ownership for the unimproved land cannot be obtained
until the landowner constructs a building on it. Once a building is built on that
piece of land, a valid title deed can be obtained from the Phnom Penh Municipal Land
Office.
One of the reasons the Phnom Penh Municipal Land Office broadly defines temporary
possession rights to apply to all unimproved land in the Phnom Penh area is to facilitate
the government's acquisition of private properties for the benefit of the public.
Generally, the "Temporary Occupation Permit" contains an express condition
that the government has the right to take this particular land if the public requires
it. In theory, this condition, would facilitate the government's taking of private
properties held by POT and allows the government to acquire POT land at a much lower
price than land held by a title deed.
Even though the Land Law permits the government to take all unregistered real properties,
the reality of Cambodia's situation prevents enforcement of this provision. For public
policy reasons, the government is inclined to compensate (even if it is a minimal
amount) unregistered landowners for any government taking for public uses. Another
reason the right of unregistered landowners is respected could be due to a provision
in the Land Law which states that the mere fact that an individual possesses the
land is a presumption that he/she is the temporary possessor. As such, unregistered
landowners seem to possess temporary possession rights regardless of whether the
land has been registered or a POT has been obtained. However, such rights are most
likely weaker than lands which have been officially registered or held under a POT.
The trend in land ownership rights in Phnom Penh is to conform with the rest of Cambodia
by eliminating the distinction between POT and title deed holders. In the future,
unimproved and improved land will be treated the same with both types of land being
issued a title deed. As far as registration of land is concerned, there is progress
underway to set up a system for registering all land in Cambodia.
