Acquisition of LAND

OWNERSHIP IN
CAMBODIA

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

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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. General Overview
A. The Context

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:
“… 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.

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.

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

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. A Quick Overview Over Land Ownership

Name Ancient Cambodia

Period prior to 1863
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 protected 3. 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
After the Khmer Rouge collapsed, PRK continue the line of collective
property rights which people were divided into collective work forces - Krom

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. Acquisition of Ownership Via Land Purchase
A. 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 lease 4 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 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.

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.

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

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 B. The Process

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 Sale Contract and the Transfer Document

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 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- The Land Survey Map

“Land Survey Map” is a term that we use to refer to “PV 7”, 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.
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 8.

3- The Vente Definitive

We should note that the requirement of a Vente Definitive 9 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.

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

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 Duty 10 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- The Issued Papers (Title Deed)

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

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 ”

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III. Acquisition of Ownership via Succession
A. 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
successors 13.

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.

B. The Process
1. Opening the Succession

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.

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 force 14. 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 therein 15 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.

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.

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 2. Land Transferring
a- 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.

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 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 Document 18, or 3- Will by Secret Document 19.

b- The Final Judgment

Submission of Documents. In order to obtain the final judgment, we must first submit
necessary documents before the Court. Based on the practice 20, 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.

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 21” where the
intentions of the deceased embodied in the Will might be altered by the provisions of the
Law 22.

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- 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:

• either, “the land is undivided ownership”, in case the judgment decides on the
undivided nature of the property’s ownership;
• 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. Acquisition via Gift and Exchange
A. 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. Gift

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:

1) in form of a contract 24, 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 conditions 27.

New additional provisions by new Civil Code.

1) There is a given legal name for gift pertaining to the death: Gift on donor’s
death 28. It applies the same provisions of testamentary gift.
2) The new code provides two more categories of gifs which are “periodic gift 29”
and “encumbered gifts 30”.

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. Acquisition via Possession
A. 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 possession 31. 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 Possession 32, the
transferring of possession to ownership is still deemed important.

The report will conclude by tracking significant changes in the new 2007 Civil Code.

B. Current Legislation, 2001 Land Law

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

- 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 property 33 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 Final Remark. Cambodia is still extremely rich in natural resources and land. The need for
clear and unambiguous legal provisions is still primordial.

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 Deeds 34. 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 future 35.

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/msg
00356.html, date accessed 24 December 2009

D. Other Practices at Cadastral Office

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