Real Property Ownership: A Comparative Analysis of the Legal Provisions under English Common Law and Kuwaiti Civil Code
Dr. Thafar M Alhajri
Associate Professor of Civil Law
Saad Al-Abdullah Academy for Security Sciences
State of Kuwait
Abstract:
The prospect of rights in land exercises most minds with an interest in real property investment. All communities have a land regulatory system. Generally, the state is the ultimate custodian with a strict utilitarian management approach. As a matter of law, land ownership confers a measure of economic and social status not least for its inherent insufficiency relative to the population and means. Regulations defer to ownership rights under such equitable mechanisms as adverse possession and the unique perspective of restoration under which the principle of restoration prevails against monetary compensation.
This paper engages in a comparative study of land ownership under English common law and the provisions of Kuwaiti Articles, which is an Islamic civil law jurisdiction. The ambit of the study embraces Mortgages, Common-ownership, and Land Ownership. It does so in the context of their inherent complexities relative to cultural, religious, and statutory limits. Specifically, this paper utilizes the analytical and comparative methodology to explore their respective provisions of mortgages on property rights by juxtaposing land title and the impact of a mortgage on co-ownership rights in both equity and law.
The paper seeks to demonstrate that the Kuwaiti system, devoid of revolutionary foundations, provides a clearer, albeit, nascent, understanding of land ownership. Yet, in its reality, is commercially cautious. A position not totally abhorred by the English system as it developed over the years.
English law, by comparison, precisely due to its undulating evolution and piecemeal origins, divested itself of the vestige of tribal dogma, thus developing an economically enabling persona. Both are logical with regards to social control. Both converge at the intersection of enduring economic facilitation.
Keywords: Land, Land Law, Private Property Rights, Real Property, Real Estate, and Land Estate.