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Rule of Law

Rule of Law

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.

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