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Editor’s note: This paper does not completely follow academic style. It is for informational purpose and cannot be construed as official paper. It can contain several errors and mistakes due to:

1- the fact that a more serious research should have been undertaken for a better understanding or for a more proper consideration; however, it is impracticable, given a limited timeframe and limited sources of information;

2- the complexity of the subject itself; 3- the format, though free-style, tries to help the readers understand the point of

view of the editor. The editor is not a native English speaker. Thanks to my working group and those who provided us invaluable advice and support. Thank you for your reading.

Phnom Penh, 23 May 2011

THARA Rathvisal

Acquisition of LAND OWNERSHIP IN CAMBODIA

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From a procedural point of view to the land title documentation.

A bit earlier, the height of land speculation had been very noticeable. But more recently, the real estate market has become stagnant; no one is buying or selling. The stagnation is due to sellers not wanting to take a loss on their investments and buyers not having money or interest to invest in real estate. There is no doubt this is one of the impacts of the serious global financial meltdown. Even though wherever there is land, there will be a chance that the land be speculated. We might recall that during the civil war era, the Cambodian land system had been damaged severely and many of the land ownership titles and plots registered had been lost. There are still many disputes over land in Cambodia. Therefore, it would be wise to perform a due-diligence before purchasing a land parcel. Land sale is one of the four valid methods provided by law to acquire the ownership over the land, namely: Sale, Exchange, Gift and Succession. At the end of the report, we will also take time to describe about the famous notion of possession. I.

A. General Overview

The Report. It could be a surprise for everyone if they read the “Land Grabbing in Cambodia” published on the official website of United Nations Human Rights:

The Context

“… However, due to the history of conflict, approximately 90 per cent of the Cambodian population does not hold title deeds to the land they live and work on…”1

Considering this unofficial sourced report of 90 per cent of population without title deed, would it be safe for a company or an organization to purchase a land from a person without the real title deed? And what is a real title deed? To many people, the usage of the terms is still confused

2

Currently, pursuant to the 2001 Land Law, Cambodia is to have what is known as cadastral land registration system. It recognizes two types of achieving land registration: sporadic

. The Protection. The first and foremost legal provision that addresses directly to the land topic in Cambodia is the Article 44 of the 1993 Constitution which, we all know, is the fundamental law of the Kingdom. Without going into detailed points, all we need to primarily recall is that the private land ownership is legally recognized and protected by the State.

1 Report on http://www.ohchr.org/EN/NewsEvents/Pages/Protectingtherighttoland.aspx updated to 21 July 2009, the Title is “Land Grabbing in Cambodia”. At the second Paragraph, the author pointed out that “…However, due to the history of conflict, approximately 90 per cent of the Cambodian population does not hold title deeds to the land they live and work on…” 2 The most notorious terms used by both normal people and professionals are “soft title” and “hard title", while actually both of them have never been correctly defined by the legislature.

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registration and systematic registration processes. The idea is that such a system will give Cambodia a stable, reliable system of land ownership and registration. Following this, each time the land is transferred or purchased, the transfer of the ownership needs to be registered with the cadastre. The sporadic registration rules have recently been updated by a new circular issued in 2009 on the “Implementing the procedures of sporadic land registration.”

B. Name Ancient Cambodia Period prior to 1863

A Quick Overview Over Land Ownership

Under ancient Cambodian law, the King was the owner of all the land in the Kingdom or, simply put, all land in the country belonged to the Sovereign. However, in practice people’s right of possession of the land was recognized and protected3

After the Khmer Rouge collapsed, PRK continue the line of collective property rights which people were divided into collective work forces - Krom

. In Cambodia prior to French protectorate, ownership was a “mobile” right.

Name French protectorate Period from 1863 to 1954

In 1884, French promulgated a Land Act. This Act brought a concept of Private Land Ownership. With introduction of new western concepts, the King no longer owned all the land in the Kingdom. The principles of land ownership were established in Cambodian Civil Code of 1920. During the Colonial period, Cambodia effectively adopted the French system of geographical surveying and land title conveyance and recordation.

Name Cambodian Independence, The Period from 1955 to 1970

Under the leadership of King Norodom Sihanouk, Cambodia became independent in 1953. This foreign concept of ownership remained applicable in Cambodia after the country gained independence from the French.

Name Khmer Republic, The Period from 1970 to 1975

The Khmer Republic was declared after Prince Sihanouk was dethroned by military coup d’état on March 18, 1970. Private property rights continued to be recognized under Khmer Republic.

Name Democratic Kampuchea Period from 1975 to 1979

Under Democratic Kampuchea, the Land regime changed dramatically from 1975 to 1979. During this era, the most important point to notice was collective principles in leadership and in work. Property rights and right to land were removed.

Name PRK Era (People’s Republic of Kampuchea), The Period from 1979 to 1993

3 The idea was that the right of possession was recognized only when the land was cultivated in a continuous and public manner. EWMI, Land Law of Cambodia, study and research manual, ADB TA 2577-CAM, 2003, page 19; LeClere, Les Codes Cambodgiens, T. II. P. 617

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Samaki (solidarity group) - jointly farming on the allocated land (between 10-15 families). The above system broke down into family-based farms PRK reintroduced private ownership of land in 1989.

C.

Under Three Different Legal Texts

The 1992 Land Law. In Cambodia, the controversial discussion over the relevant laws governing the Land Issues still continues. The 1992 Land Law has never been expressly rendered abrogated by the entry into force of the 2001 Land Law. But from another point of view, from the moment the 2001 Land Law entered into force, the 1992 Land Law was automatically abrogated. The 2001 Land Law and the 2007 Civil Code. There are two major areas that had been in the 1992 Land Law and that were removed from the 2001 Land Law: Succession Rules and Temporary Possession. Noted that now in the 2007 Civil Code there are rules about Succession. But the point is the 2007 Civil Code is not yet formally in force, the implementation Law of the Civil Code is not yet adopted. In this Textual Guide. Because the 2007 Civil Code is not in force, but will be, in our development we will try our best to avoid confusion by taking into consideration all of these three principal laws: 1992 Land Law, 2001 Land Law and 2007 Civil Code. Though the reference to each of these laws is merely for the purpose of subject-related reasoning.

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II. A.

Acquisition of Ownership Via Land Purchase

The Transaction

General Perception. Land purchase is a transaction which benefits both its seller and purchaser, be them businessmen or not. In the trade context, parcels of land can be contributed as to the real asset of one company; they can be used for construction of new buildings; they can be subject to a long-term lease4 for development. In short, where it is possible investment on land is, in a lucrative sense, an enormous income generator. Land Purchase being governed by Law. As in Cambodia, land purchase is regulated and governed by, principally, 2001 land law and, accessorily, sub-decrees (anukret) and other governmental texts which are for implementing the 2001 land law. In some aspects, Land topics are also governed by Investment law, by Law on Contract and Liabilities, by Law on concession and more.

“All persons, individually or collectively, shall have the right to ownership. Only Khmer legal entities and citizens of Khmer nationality shall have the right to own land.

Legal private ownership shall be protected by law.

The right to confiscate properties from any person shall be exercised only in the public interest as provided for under the law and shall require fair and just compensation in advance.”

Article 44, Constitution of Cambodia 2003, latest amendment in 2008 Though this article 44 allowed, in 1993, only Khmer National to have right to own land, it left a large space for interpretation by legal practitioners and jurists. As supplementary provisions, the articles 8 and 9 of the 2001 Land Law, currently in force, point out that only natural persons or legal entities of Khmer nationality have the right to ownership of land in the Kingdom of Cambodia; and that “an enterprise registered in Cambodia, in respect of which 51% or more of the shares are held by natural persons of Cambodian nationality or by Cambodian legal entities

The New Law. It was in the second draft law dated 26th March 2009 that the Cambodian Legislator had a tendency to provide legal ownership right to foreigner over private parts of co-owned building. As we all know in theory that Buildings are classified as part of the land, it would be transferred with the land in the event of sale, and in so-doing the constitutionality of that new draft law would have been controversially considerable. On 24th May 2010, the law was passed. From the entry into force of that law, foreigners now can acquire ownership right over private parts of co-owned buildings with some conditions set.

recognized pursuant to the laws of Cambodia, may be the owner of land”. Two interesting points to bring to discussion: The Prohibition concerns uniquely the Land. The ownership over other kinds of Property is not explicitly prohibited by law. In such a case, it is worth recalling that there are different types of immovable properties which are not just Land, for example, the construction, the building. Therefore, the law is often controversial at this point, because some jurists may, with legitimate argument, point out that it is not prohibited for foreigners to own a building.

4 A long-term lease shall be for 15 years and more. – Article 106 of the 2001 Land Law

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B.

Under the process, we will discuss about the documentation at different phases. Respectively, the steps are: 1- the Sale Contract (and Transfer Document), 2- the Land Survey Map, 3- The Vente Definitive and 4- The issued papers.

1-

The Process

A Land Purchase is a type of Buying-Selling Transaction, the terms and conditions of which need to be embodied in one private written contract between the parties. Though the contract is binding, the formality is not yet complete. For a Land Sale contract to be recognized, the local law requires one more document which is called [Right] transfer document

The Sale Contract and the Transfer Document

5

The formation of one transfer document is a legal condition of the land purchase transaction, because “the contract itself is not a sufficient legal requirement for the transfer of the ownership of the subject matter.”

.

6

2-

“Land Survey Map” is a term that we use to refer to “PV

The Land Survey Map

7

Mentions. In it, we will find the specificity of land location, its boundaries, type, size, location on the map, responses of both requestor and objector, comments from chief of commune or sangkat and finally, the comments from competent authority

”, the later is used by the local cadastral officer. This Survey Map is the formal document describing the exactitude of the Land, as an immovable property.

8. 3-

We should note that the requirement of a Vente Definitive

The Vente Definitive

9

Tax Payment. It is to also note that this transaction is required to pay tax. The Instructing Directive dated 1997 provides that this transaction is subject to taxation and the proportion

explains another specificity of the Land Purchase Transaction. In this case, one reasonable question can be asked: is this document a legal requirement, a necessity? Practically speaking, this document is a must. The need of this document can be justified by the need to prove that the sale-purchase of the Land is no longer conditional between the parties after the Land Survey Map is correctly issued.

5 The “Right Transfer Document” is directly translated from “ lixitepÞrsiT§i ” 6 Article 65, of the 2001 Land Law. 7 Land Survey Map, known as Procès Verbal, is translated from “ kMNt;ehtuGegátdI ”. 8 The competent authority shall be the following :

- Chief of Land Office - Chief of Fishery and Agricultural Office - Governor of District - Chief of Provincial or Municipal Land Department - Governor of Province or Municipality

9 “Vente Definitive” is translated from “ lixitlk;pþac; ”

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rate is 4 (four) percents. But to avoid any doubt, this tax payment is not mentioned in the Vente Definitive. Instead, only the Stamp Duty10 is stated therein. Mentions. Typically, the Vente Definitive defines the name of Purchaser and of the Vender, the Payment of Stamp Duty (the amount included), the Purchased Price and other necessary mentions.

4-

After completing the three steps above, the final step is to have mentions on the issued papers which can be a Possession Title to Immovable Property (possession title)

The Issued Papers (Title Deed)

11 or a Certificate Acknowledging the Owner of an Immovable Property (ownership title)12

10 “Stamp Duties” refers to “ Bn§Rbfab;Rta ” 11 “Possession Title to Immovable Property” is directly translated from “

b½NÑsMKal;siT§ikan;kab; Gclnvtßú ” 12 “Certificate Acknowledging the Owner of an Immovable Property” is directly

translated from “ viBaØabnb½RtsMKal;m©as;Gclnvtßú ”

. In our society, the terms used are Soft Title and Hard Title. For the avoidance of doubts, we recommend to use only the two terms above, because both soft and hard titles are not defined by Law. Ownership and Possession. Article 40 of the 2001 Land Law provides the characteristics of a possession title that “… the Title is evidence of possession, but is not in itself a title of ownership and is not indisputable.” By extension, it becomes reasonable to interpret the sentence in a way that only the ownership title is indisputable while the possession title is still disputable. This is the basic difference between them. But practically speaking, the fact that there are many disputes over double registrations of ownership title constitutes the evidence that even the ownership title still has the characteristic of being disputable. Mentions. Hence the name, in our context of Land Purchase, the mention on either the Possession Title or the Certificate of Ownership is necessary to point out that the Land has been correctly transferred from the previous owner to the new owner of the land. The cadastral officer also takes care of mentioning any encumbrance that might exist on the land, e.g., the Land sold is still under a mortgage.

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III. A.

Acquisition of Ownership via Succession

The Succession, a Legal Notion

Definition. Succession has different meanings to various authors. A good place to start when trying to define a word or concept is a dictionary. Because succession is a legal concept as well as an everyday word, we will look in both ordinary language dictionary as well as the definition provided by legal instruments. In ordinary meaning, succession can simply mean the process by which a decedent’s property or rights passes to the inheritors thereof; whereas in a legal context, under Cambodian Law to be precise, we explain succession as being the transfer of the patrimony of a decedent in profit of one or several people called heirs or successors13

B.

. The Land Transfer via Succession. Immovable properties such as land parcels or houses can be subject to succession. Just like in the previous method of acquisition, the transfer of ownership by succession needs to be governed by Cambodian legislation. From the technical point of view, we need to understand both the succession process and the land transfer process. However, by trying to narrow down the scope of our development, the succession will only be briefed in a way that the readers receive enough elements to let them focus on the land topic.

1. The Process

Basic Condition to Open Succession. In this section, though we are not going to discuss in detail about the succession, it is necessary to be well informed about the basic rule to open a succession: the Death. The death, in the famous Black’s Law Dictionary is defined as the ending of life. This definition looks simple. Practically speaking we are able to easily identify the death of one person when his corpse lies in front of us. Easier said than done, when one person has been lost within one noticeable period of time, say one year, there would be a good reason to say that the person probably only disappeared or simply died.

Opening the Succession

Death and Declaration of Disappearance under Cambodian Law. The legal criteria for distinction between the two do not clearly exist. Under Cambodian Law, there are some relevant regulations that are still in force14. Despite the absence of its implementation Law, the 2007 Civil Code states in its article 43 that “ the absentee shall be deemed dead from the time […] when the period set forth therein15

13 Article 170 of the 1992 Land Law 14 Article 41 and 43 of the 2007 Civil Code on Death and Declaration of Disappearance Article 35 of Sub-Decree 103 on Civil Status, dated 29th December 2000 on Death Certificate. Article 47 of Sub-Decree 17 on Civil Status, dated 14th June 2004 on Certificate attesting the Death, originally translated as “Death Attestation Letter”. 15 “The period set forth therein” refers to the period set forth in the Article 41, which itself does not give a clear look on the distinction between the death and the disappearance.

expired and […] when the peril ceases to exist […].” Given a presumptuous criterion, it would become a challenge for the judge to issue the death certificate or the declaration of disappearance.

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2. a- Land Transferring

Statutory Succession. Under Cambodian Law, Statutory Succession means the “Succession by Law” and when one refers to that Succession by Law, he/she means the Succession without a will or without a bequest. Further explanation is given by the article 1145 and the whole Chapter 2 of Book 8 of the new 2007 Civil Code, according to the provisions of which, many jurist believe that there are significant changes comparing to the succession rules in previous laws

Statutory Succession and Testamentary Succession

Under the new 2007 civil code, there exist two categories of succession, namely: statutory succession and testamentary succession. A brief outline on the distinction between the statutory and the testamentary succession provides us basic information to understand the land transferring via succession.

16

Testamentary Succession. Testamentary Succession means Succession which functions in accordance with the wishes of the decedent. Those wishes are to be embodied in a document under one of these three forms: 1- Will by Notarial Document

.

17, 2- Will by Privately Produced Document18, or 3- Will by Secret Document19.

b-

Submission of Documents. In order to obtain the final judgment, we must first submit necessary documents before the Court. Based on the practice

The Final Judgment

20

Rendering the Final Judgment. The Final Judgment is one necessary formal document – probably the most important one - before we can proceed to the land transferring. After receiving all documents submitted by the relative of the deceased, the judge will determine the successors of the deceased, whether according to the law or according to the Will. Note that the expression “according to the Will” does not exclude the obligation to further reference to the Law. We can give an example of the “Legally Secured Portion

, one of the documents to be submitted is called “the Complaint”, a document to formally request to the Court to open a succession. By logic, we would assume that the complaint is to be accompanied by the Death Certificate. And for the Testamentary Succession, there would be a must to attach the Will of the Deceased as well.

21” where the intentions of the deceased embodied in the Will might be altered by the provisions of the Law22

16 The most noticeable changes concern the rights of the Spouse of the decedent, from articles 1161 to 1167. 17 Article 1173 of the 2007 Civil Code. 18 Article 1174 of the 2007 Civil Code. 19 Article 1175 of the 2007 Civil Code. 20 “Base on the practice”, because the law does not clearly list down the required documents. 21 The “Legally Secured Portion” is the word used in the translated version of the 2007 Code by ADB and WB. See Article 1182 and Article 1230 of the 2007 Civil Code. 22 The whole chapter 4 of Book Eight of the 2007 Civil Code states about the “Legally Secured Portions”

.

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c-

• either, “the land is undivided ownership”, in case the judgment decides on the undivided nature of the property’s ownership;

The Mentions on the issued document After receiving the final judgment, the process continues at the cadastral units. The official in charge takes care of the process by taking into account the decision written in the court judgment. On the back side of the title (Possession Title or Certificate Acknowledging the Owner), the latest mention by the cadastre shall be:

• or, “the land is co-property”, in case the judgment states that is a collective property for successors.23

* Question of possession: Is it only about the full ownership or can possession be also transferred by succession? Article 73 of the 2001 Land Law allows the possession to be transferred by succession as well. A more detailed explanation on possession is on the latest part of this report.

23 Terminology clarification: the controversial discussion is about the translation. To avoid any unnecessary misunderstanding, this report uses the term undivided property that appears as “undivided ownership” in the 2001 Land Law article 168. The Co-property also refers to the article 175 of that same law which stipulates about the “Co-ownership” of immovable property. The readers shall not get them confused with the “Joint-Ownership” in the article 186 which covers a different notion.

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IV. A.

Acquisition via Gift and Exchange

Overview

Both Gift and Exchange are legally recognized in virtue of Cambodian Law as valid methods to acquire ownership over immovable property. These two methods have their own distinctiveness. Though they do exist in real practices, they are not often.

B.

Exchange

Legal Provisions. The only one article in the 2001 Land Law is the article 70 and the only two articles in the new Civil Code are the articles 566 and 567. The provision of the new Civil Code differs very slightly from the provision of the 2001 Land Law in the nature of the properties subject of the exchange. The Civil Code allows all kinds of property right other than money while the Land Law limits its scope to only immovable properties.

“An exchange of immovable properties is a contract in which the parties agree to exchange immovable properties with each other. An exchange of immovable properties leads to transfer of immovable property ownership. An exchange shall be conducted with the same conditions as a sale.”

Article 70, 2001 Land Law

“An exchange shall become effective by the mutual promises by the parties to transfer any property right other than money.”

Article 566, 2007 Civil Code “The rules relating to sale shall apply mutatis mutandis to exchange.”

Article 567, 2007 Civil Code Analysis. Two important points to notice:

1- The Civil Code allows any kind of exchange, between movable properties and/or immovable properties. But the Land Law has a very specific provision on the immovable properties according to which one immovable property can only be exchanged against one other immovable property. The Civil Code is not supposed to contradict the Land Law which means that the Land Law is still in force and therefore they consider the exchange between immovable and movable properties as invalid. However, in practice there exist cases where movable properties are exchanged for immovable properties; which means that they implement the two laws as if the Civil Code abrogated the Land Law.

2- We follow the Sale condition and procedure. Previously, we mentioned that the Sale requires a list of formal documents which are the Transfer Document, the Land Survey Map and the Vente Definitive. By application of these two laws, to recognize the exchange of immovable properties as valid, the owners of the two exchanged properties will need to satisfy those same conditions of sale-purchase. In conclusion, they will still have to pay the same tax amount as if it was a sale transaction.

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C.

Legal Definition. It is possible under Cambodian law to transfer immovable property to another by way of a gift. Currently, the 2001 Land Law still applies in its article 80: a gift is a contract by which a donor or a giver transfers his property ownership to another person called a receiver or donee who accepts it. The law does not mention about its characteristic of being free of charge. Thus, ones should be looking forward to the implementation of the new civil code which provides for a clearer definition:

“A gift is a contract which comes into effect when one party manifests the intention to give property to another gratuitously, and the other party accepts it.”

Article 568, 2007 Civil Code

Legal Conditions. By virtue of 2001 Land Law, a gift needs to be:

Gift

1) in form of a contract24, written in authentic form.25

2) registered with the Cadastral Registry Unit.

26

Moreover, the law makes it irrevocable after the acceptance made by the Receiver. It means that the Donor can take it back only before the Receiver accepts it.

Significant Changes by new Civil Code. First and foremost, we note that the new Civil Code includes more provisions about this topic. The second significant change is about the revocability of one gift but under certain conditions27

1) There is a given legal name for gift pertaining to the death: Gift on donor’s death

. New additional provisions by new Civil Code.

28

2) The new code provides two more categories of gifs which are “periodic gift. It applies the same provisions of testamentary gift.

29” and “encumbered gifts30

The gift was supposed to be the last part of our development. But considering the importance of the Possession, both in terms of practice and under the new civil code, we should also talk about it in the last part.

”.

24 Article 80 of the 2001 Land Law. 25 Article 81 of the 2001 Land Law. 26 Article 81 of the 2001 Land Law. 27 Articles 571, 572 and 573 of the new Civil Code allow the Donor to take back his property under certain conditions even after the acceptance be the receiver. 28 Article 577 of the new Civil Code 29 Article 575 of the new Civil Code 30 Article 576 of the new Civil Code

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V. A.

Acquisition via Possession

Overview

Possession is a right that is very similar to ownership. In fact the two rights are so similar that it is difficult to see the differences in practice between ownership and possession31. In this section of the text, we will look at what is meant by the term possession under the land law. Though we try to make a short recall on the Legal Requirements of Possession32

B.

, the transferring of possession to ownership is still deemed important. The report will conclude by tracking significant changes in the new 2007 Civil Code.

Brief on Legal Requirements of Possession. There exist five elements for legal possession. From article 38, they are cumulative:

Current Legislation, 2001 Land Law

- Requirement 1: Peaceful possession. The occupier must have moved onto the property without using violence (and without abuse of power of the authorities).

- Requirement 2: Taking possession in good faith. The occupier must not have been aware of any other interest in the property by any other party when the occupier entered into possession.

- Requirement 3: Unambiguous possession. It must be clear at all times who is the real possessor. It means the real possessor must not be hiding behind someone else’s name.

- Requirement 4: Notorious to the public. It must at all time be clear to the public that the property is in someone’s possession.

- Requirement 5: Continuous possession. Occupation must be un-ceasing or non-stop. Though abandon by possession is not possible, a short-term holiday is allowed.

Transferring Possession to Ownership. Under the 2001 Land Law, a possessor has the right to convert possession into ownership. The concept is to reintroduce the private land ownership which was introduced in the 1992 Land Law as to transfer from State Land to Private Land. But it was not until 1993 that private ownership was fully restored under the Constitution. To transfer to the ownership, the two 2001 Land Law requires the abovementioned 5 elements and through an application process one can convert his/her legal possession into ownership. However, it is to note that the possession of the land must have commenced before the 2001 Land Law was enacted. For example, entering into possession of State Private Land after the cutoff date, 30 august 2001 when the 2001 Land Law took effect will not provide the possessor any legal possession right to be converted into legal ownership. Remarkable Consequence. On 26th February 2010, the National Assembly adopted the “Expropriation Law” which allows the State to expropriate private immovable properties,

31 Some jurists refer to both the Certificate acknowledging the ownership and Possession title as hard titles and some others refer to the former as hard title and the later soft title. 32 For further reading, please refer to Land Law of Cambodia, a study and research manual, November 2003 by East-West Management Institute Inc.

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including Land and Houses, only in public interest. Under this Law, the expropriation procedure requires 2 basic conditions: public interest and fair and just compensation. The second condition draws our attention here. We need to determine who are entitled to receive that compensation. They can be the legal owners of the immovable property or any persons who have the rights over it. That is where the possessor comes in. It means the Legal Possessor also has the right to receive fair and just compensation in case of any expropriation by the State. However the analysis of the two laws shows that the law requires the condition of legally entering into that possession. Consequently, those who entered into possession of the State Land after the cutoff date of 30 August 2001 (i.e. September 2001) are not entitled to receive the compensation under the Expropriation Law. In fact, that possession was not leading to any legal ownership.

C.

Significant Changes, 2007 Civil Code

Re-emergence of the Legal Possession. The Civil Code was adopted on the 8th of December 2007. Previously, we mentioned that any entering into possession after the cutoff date was not leading to the legal ownership. But under this new Civil Code, the Law starts to recognize this kind of prescriptive acquisition again, provided however that a new set of legal requirements are satisfied. New Legal Requirements. The body of the new legal requirements is in the article 162.

Prescriptive acquisition of ownership over immovable “1- A person who peacefully and openly possesses an immovable for a period of 20 years with the intention of ownership shall acquire ownership thereof. 2- A person who peacefully and openly possesses an immovable for a period of 10 years with the intention of ownership shall acquire ownership thereof if the possession commenced in good faith and without negligence. 3- Neither Paragraph 1 or 2 shall apply to any immovable property belonging to the state, regardless of its kind.”

Article 162, 2007 Civil Code

- New Requirement 1: Not state property. This new Code recognizes only the possessions over immovable properties which do not belong to the State. It means despite the fact that the new civil code recognizes the possession again any possession over State Private Land will no longer be legally recognized.

- New Requirement 2: Prescription. The 2001 Land Law requires only 5 years. This new code requires it to be 20 years for the possession to be complete. It is down to 10 years if good faith and absence of mistakes are proven right from the commencement.

- New Requirement 3: Intention of ownership. The original Khmer version stipulates that the possessor has the intention of taking it for ownership. It means that the possessor must show his intention to take the ownership over the immovable property.

- New Requirement 4: Openly to the public. It must at all time be clear to the public that the property is in someone’s possession.

- New Requirement 5: Peacefully. Again, the law requires it to be peaceful.

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Response to the practices under the 2001 Land Law. It is important to finally notice that in practice, even after 5 years of un-ceasing possession, it often happens that the possessors, as normal citizens, do not know about their right to convert the possession into ownership. The 2007 Civil Code provides for the protection of those who already have a possession title to immovable property33

A Final Remark. Cambodia is still extremely rich in natural resources and land. The need for clear and unambiguous legal provisions is still primordial.

by considering them as owner of the property. Those who by negligence did not properly register for their possession title are also protected against the third party, but still it needs to be before the entry into force of 2001 Land Law.

A set of rules on the procedure about acquisition does not clearly exist in uniformity. In real practice, cadastral departments in different provinces use different versions (different formats and different naming) of the required documentation and of the Title Deeds34. One thing that should really draw our attention is: Title Deed serves as important evidence; without being clear on his title deed in the first place, one occupant might be vulnerable to potential legal issues in the future35

33 In the lexical section formally printed by the Council Of Ministers, “the possession title to immovable property” is referred to as “Certificate of Possession”. But under the ADB and World Bank translation, it is referred to as “Certificate of Occupancy”. 34 For example, there exists another type of Title Deed which is called “Certificate

acknowledging the right” (being translated from “b½NÑsMKal;siT§i”) without clearly

specifying what kind of right that Deed is acknowledging

.

35 For example, an occupant will have to pay tax on immovable property even if he has only possession rights. On the contrary, if he has only possession rights after the cut-off date, he will not have any right to fair compensation after his land has been expropriated.

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REFERENCES

A. Laws and Regulations

1. Constitution of the Kingdom of Cambodia, 2003 2. Various Amendments to Constitution of the Kingdom of Cambodia 3. Land Law, 2001 4. Land Law, 1992 5. Expropriation Law, 2010

B. Books

6. East-West Management Institute, Inc. (November 2003) LAND LAW OF CAMBODIA – a Study and Research Manual: Supported by the Asian Development Bank.

7. Stephen Murdoch, edited by Jeffrey S. Brand (Jan 1998) Cambodian Property Law: Under USAID Support.

8. LIM VOAN (date not precise) Loi Foncière, Cambodgienne: Collection “Correspondance - ERA”.

C. Electronic Information

9. ADB RDI Report (November 2007), Compensation and Valuation in Resettlement: Cambodia, People’s Republic of China, and India, in PDF format.

10. (21 July 2009) Land grabbing in Cambodia, http://www.ohchr.org/EN/NewsEvents/Pages/Protectingtherighttoland.aspx, date accessed 03 March 2010

11. (24 December 2008) The hard and the soft of land title ownership in Cambodia, http://newsgroups.derkeiler.com/Archive/Soc/soc.culture.cambodia/2008−12/msg00356.html, date accessed 24 December 2009

D. Other Practices at Cadastral Office