Basis of real property ownership in civil law and non-Anglosphere countries

Question

In England and perhaps other common law jurisdictions, property ownership is governed by the feudal remnant called "tenure", whereby what is commonly called "owning" is actually a "freehold" / "fee simple". This maintains a fiction (?) that the monarch is the real "owner" who just grants the practical owner extensive rights. Quoting from the latter link:

The rights of the fee-simple owner are limited by government powers of taxation, compulsory purchase, police power, and escheat, and may also be limited further by certain encumbrances or conditions in the deed, such as, for example, a condition that required the land to be used as a public park, with a reversion interest in the grantor if the condition fails; this is a fee simple conditional.

In English common law, the Crown had radical title or the allodium of all land in England, meaning that it was the ultimate "owner" of all land in the past feudal era. Allodial title is reserved to governments under a civil law structure.

However, the Crown can grant ownership in an abstract entity – called an estate in land – which is what is owned rather than the land it represents. The fee simple estate is also called "estate in fee simple" or "fee-simple title", or sometimes simply "freehold" in England and Wales. [...]

William Blackstone defined fee simple as the estate in land that a person has when the lands are given to him and his heirs absolutely, without any end or limit put to his estate. Land held in fee simple can be conveyed to whomsoever its owner pleases; it can also be mortgaged or put up as security. Owners of real property in fee simple have the privilege of interest in the property during their lifetime and typically have a say in determining who gets to own an interest in the property after their death.

All this seems like a lot of legal acrobatics to not technically abolish the monarch's feudal rights. I assume that such concerns hold no weight in republics who have cleanly broken with the monarchical legal systems.

So:

• What is the legal basis for land ownership in countries which do not follow this post-feudal pattern?
• Instead of claiming a higher right to the property via these feudal means, on what do such jurisdictions base the use of powers of "taxation, compulsory purchase, police power, and escheat"? Is it simply by law?

Answer 1

It’s exactly the same

Note that ownership by “the Crown” is not the same as ownership by King Charles III. What you describe is the former, ownership of by the government of the UK which is personified in the institution of, not the person of, the Monarch.

In civil law countries, land ownership is ultimately derived from the government because, as in common law jurisdictions, land titles are legal creations, and the law is created, implemented, and adjudicated by the government.

While government land control may not be personified as in is in the UK, Canada, Australia, etc. (although it may be in the office of the President) it still exists in civil law jurisdictions in the same way. Of course, the specific details of land rights and transfers and planning law will be unique.

Answer 2

In Canada, there is no unified federal conception of property rights. "Property and Civil Rights in the Province" is a matter within the exclusive legislative jurisdiction of the provinces.

Therefore, Quebec has maintained its civil law conceptions of real property. Real property in Quebec is goverened by the civil code, not the common law.

The conception of ownership under the civil law in Quebec is not the same as the conception of ownership under the common law (Stéphane Beaulac & Jean-François Gaudreault-Desbiens, "Common Law and Civil Law: A Comparative Primer" (2017):

jurists risk being surprised by the breadth of the epistemological and conceptual differences existing between Common Law and Civil Law categories of property, ... [t]hey thus need to avoid at all costs transplanting their assumptions about the classification of property, most often drawn from their original jurisdiction, into another legal system based on a different tradition.

Ownership in the common law is ill-defined, but generally is considered to include the right to possess, use, benefit from, and dispose of the land. You give a roughly accurate description of the "estate" and "fee simple" in your question, which I will not repeat here. But I will emphasize an important distinction compared to the civil law (Beaulac & Gaudreault-Desbiens, p. 33):

the continuing influence of the doctrine of estates explains that in practice, there is no absolute real right (except perhaps for the Crown as regards public domain) in the Common Law tradition.

However, in the civil law, ownership is expressly defined and does involve an "absolutism" in principle (art. 947 of the Civil Code of Quebec):

La propriété est le droit d’user, de jouir et de disposer librement et complètement d’un bien, sous réserve des limites et des conditions d’exercice fixées par la loi. Elle est susceptible de modalités et de démembrements.

Ownership is the right to use, enjoy and dispose of property fully and freely, subject to the limits and conditions for doing so determined by law. Ownership may be in various modalities and dismemberments.

This definition imports the distinction between usus (right to use), fructus (right to benefit from), and abusus (right to dispose) from Roman law. An owner has all of these rights. See Beaulac & Gaudreault-Desbiens, p. 33:

Ownership is therefore the greatest real right one can have over things, precisely in that it confers an absolute and direct right to use and dispose of things. ... there cannot be multiple rights of ownership coexisting over a single thing, which stands in stark contrast to the Common Law’s recognition of the possibility of multiple proprietary interests held simultaneously in the same property.

While the common law and civil law might often appear to have very similar functional outcomes, they have distinct conceptions of ownership. At a very rough level, in the common law, ownership is thought of as layers with various priorities. In the civil law, ownership is a unitary concept with mechanisms for erosion, modification, prescription, and recovery of rights.

There are some real practical consequences. One is that the common-law trust is incompatible with civilian conception of ownership. Instead, the Civil Code of Quebec creates an independent trust-like institution built on top of the concept of the "patrimoine d'affectation" (see arts. 2, 302, et 1261 of the CCQ) rather than on principles of equity. Another consequence is that a lease in the common law is a true interest in land, while in civil law it is merely a personal obligation or contract rather than a property right.

See also:

• Barbara Pierre, "Classification of Property and Conceptions of Ownership in Civil and Common Law" (1997) 28 Revue générale de droit 235 ("underneath the façade of similar powers over land in the two traditions, lies fundamental juridical differences in the nature and characteristics of the institutions).