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Table of Contents About Palau Contact Information Rights and Restrictions Pertaining to Private Lands Legal Tools in Place for Private Lands Conservation Notes

Palau has a constitutional government in free association with the United States. The Compact of Free Association was entered into with the United States on October 1, 1994, also marking Palau’s independence.

Palau has three branches of government. The President is directly-elected and serves a four year term. The President and Vice-President run on separate tickets. The Council of Chiefs, comprised of the highest traditional chiefs from each state, acts in an advisory capacity to the President on traditional laws and customs.

The legislative branch, the Olbiil Era Kelulau (Palau National Congress), consists of two chambers, the Senate and House of Delegates. All legislators serve four year terms.

The judicial system consists of the Supreme Court, the Court of Common Pleas, and the Land Court. The Supreme Court has trial and appellate divisions and is presided over by the Chief Justice. Judges are appointed to life terms by the President with approval from Palau’s National Congress.

Each of Palau’s 16 states also elects its own governor and legislature.

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Bureau of Foreign Affairs

Jeffrey Antol
Director
Email: [email protected]
Email: [email protected]
Telephone: (680) 767-2408/2490 or (680) 488-1189
Fax: (680) 767-3680 or (680) 488-3681

Ownership of Private Property

Title 39 of the PNC covers real property. As noted above, foreigners may not obtain title to real property in Palau. Citizens of Palau and corporations wholly owned by Palauan citizens may hold title to land in Palau.

Private Land Administration

A. Institutional Framework

Since the Japanese occupation in 1938, Palau has developed a tradition of modem land recordation. In 1996, the legislature passed the Land Claims Reorganization Act (“LCRA”). The primary goal of the LCRA is to register all land in Palau prior to 2001 and return land previously acquired by occupying powers to the original and rightful owners. It also established the Land Court, replacing the Land Claims Hearing Office and instituted new procedures for registering and transferring real property.

The Land Court recognizes previous Land Claims Hearing Office decisions as prima facie evidence of ownership. Additionally, land registered during the Japanese occupation, 1938-41, will be also be accepted as authoritative by the Land Court, placing the burden of proof on any claimant of land registered during this period to prove otherwise. Thus, the statute legitimizes previously documented title to property and embraces a civil judicial solution as the method for dispute resolution.

Combined with sections of the PNC regarding real property, Palau has a robust system in place (at least on paper) for recording and transferring real property. Unfortunately, it does not appear that any sections of the code expressly mention conservation easements.

B. Land Transfer

Land transfers are covered by 39 PNCA §101, et seq., and 35 PNCA § 1315. As noted above, only Palaun citizens and wholly owned corporations can own real property in Palau. However, non-citizens can lease land for a term of up to, but not exceeding, 50 years.

Land held in fee simple may be transferred, devised, sold or otherwise disposed of at such a time and in such a manner as the owner alone may desire. This alienability supersedes any “established local customs which may control the disposition or inheritance of land through matrilineal lineages or clans.” Land transfers must be recorded with the Clerk of Courts. The Clerk of Courts will also keep an index as the Supreme Court may direct. Transfers may be registered by either (1) acknowledging the instrument of transfer before the Clerk of Courts and depositing a copy thereof with him; or (2) making a sworn statement, written or oral, in the presence of three witnesses not benefiting from the transfer, that a transfer was made and to whom. These statements shall be noted in the land register by the Clerk of Courts. The creation or transfer of an interest in real property is also subject to the Statute of Frauds. Unrecorded transfers are not enforceable against subsequent bona fide purchasers for value:

No transfer of or encumbrance upon title to real estate or any interest therein, other than a lease.. .not exceeding one year, shall be valid against any subsequent purchaser or mortgagee of the same real estate or interest.. .in good faith for a valuable consideration without notice of such transfer or encumbrance, or against any person claiming under them, if the transfer to the subsequent purchaser or mortgagee is first duly recorded.

Thus, Palau has a land transfer and registration system that, on paper, resembles that of many states in the United States. The italicized terms, “encumbrance” and “any interest therein,” suggest that easements and servitudes are implicitly recognized by the PNC. Again, however, there is no express mention of conservation easements.

C. Land Registration

The Land Court has jurisdiction over determining property rights among parties or between a party and the government. In the registration process, the Land Court first makes a determination of rights among parties. This determination entails different components for cases involving the government and cases involving private parties. Next, the Land Court oversees the process for adjudicating these claims. The process is the same for both types of claims. This section first addresses the determination of rights then details the process for registration.

The Land Court shall award ownership of public land held by the government to private citizens under the following circumstances. To prevail on a claim to public land, the citizen must prove that (1) the land became part of the public land, or became claimed as part of the public land, as a result of the acquisition by previous occupying powers prior to January 1, 1981, through force, coercion, fraud, or without just compensation; and (2) that prior to that acquisition the land was owned by the citizen or citizens or that the citizen or citizens are the proper heirs to the land. The citizen may use previous Palau Land Commission or District Land Title Officer proceedings as evidence of ownership. The Land Court will use its discretion in reviewing the record and claim, and will award ownership if it deems the citizen has satisfied the two prongs of the statute.

The Land Court will also issue a determination of ownership in cases involving competing claims between citizens.59 If the land has already been surveyed and a dispute has been amicably resolved between the parties, the Land Court will ratify this agreement. If the parties disagree as to ownership of the land, the Land Court will refer the claim to the Trial Division of the Supreme Court to make the determination, considering evidence from both parties.

In all situations, the process for registering land begins with the filing of a claim and a survey of the designated land. Once a claim has been filed, all claimants must attend the survey. Other interested parties, such as adjacent land owners may also attend. Registration Officers conducting the survey must use their best efforts to consult with traditional leaders from the area where the disputed claim lies. A claimant that fails to personally attend a scheduled survey automatically incurs a fine of $250.

Once the land is surveyed, then the Land Court will adjudicate the claim according to the rules outlined above. The claim is adjudicated at a public hearing. Notice of the hearing must be given to the community at least 120 days prior to the hearing. Once the claim is adjudicated the determination of ownership must be placed in a permanent register. The PNC also states exactly what needs to be recorded and in what manner.

All security interests in land, and releases or satisfactions thereof, leases of one year or more, easements or use rights of more than one year, or abstracts of the above, shall be in a deed and cross-referenced in a manner calculated to give persons inspecting the register notice of the [interest].

Again, the Palaun system appears to be predicated upon many U.S. states’ systems for land and title registration.

A. Conservation Easements

While Palau has not expressly recognized conservation easements on private lands, it is a common law jurisdiction that relies upon the ALI Restatements of Law as authoritative. Thus, there is room in the Palaun legal regime to advance their recognition. This section describes modem trends in conservation easements in the U.S. and elsewhere.

Easements have been recognized as legitimate interests in land for centuries. An easement is a limited right, granted by an owner of real property, to use all or part of his or her property for specific purposes. Where this purpose is to achieve the goal of conservation, the easement is frequently referred to as a conservation easement. A conservation easement is thus a voluntary, legally enforceable agreement in which a landowner agrees (usually with a governmental entity or NGO) to limit the type and amount of development that may occur on his or her property in order to achieve the goal of conservation. They are legally recorded deed restrictions that “run with the land” and can be obtained voluntarily through donation or purchase from the landowner.

Traditionally, an easement was “affirmative” (carrying rights to specified actions) and “appurtenant” (attached to a neighboring parcel of land). For example, one landowner might hold an easement in the land of a neighbor, allowing him or her to cross the neighbor’s property or draw water from the neighbor’s well. In contrast to conventional easements, conservation easements are generally “negative” (prohibiting specified actions) and “in gross” (that is, they may be held by someone other than the owner of a neighboring property). While a conventional easement involves the conveyance of certain affirmative rights to the easement holder, an easement for conservation purposes involves the relinquishment of some of these rights and a conferral of power in the new holder of the rights to enforce the restrictions on the use of the property. This is a critical distinction—the landowner relinquishes the right to develop the land, but that right is not conveyed to the easement holder. That particular right (to develop the land) is extinguished. What the easement holder does acquire is the right to enforce the land-use restrictions.

To understand the concept of an easement, it is helpful to think of owning land as holding a bundle of rights— a bundle that includes the right to occupy, lease, sell, develop, construct buildings, farm, restrict access or harvest timber, and so forth. A landowner may give away or sell the entire bundle, or just one or two of those rights. For instance, a landowner may give up the right to construct additional buildings while retaining the right to grow crops. In ceding a right, the landowner “eases” it to another entity, such as a land trust. However, in granting an easement over the land, a landowner does not give away the entire bundle of ownership rights—but rather forgoes only those rights that are specified in the easement document.

1. Appurtenant conservation easements

In legal terms, conservation easements generally fall into one of two categories: (1) appurtenant easements, and (2) easements in gross. An appurtenant easement is an easement created to benefit a particular parcel of land; the rights affected by the easement are thus appurtenant or incidental to the benefited land. The land subject to the appurtenant easement is called the servient estate, while the land benefited is called the dominant estate. Unless the grant of an appurtenant easement provides otherwise, the benefit of the easement is automatically transferred with the dominant estate—meaning that it “runs with the land.” Under the majority U.S. common law authorities, an appurtenant easement does not require the dominant and servient estates to be adjacent to one another—an easement may be appurtenant to non-contiguous property if both estates are clearly defined and if it was the parties’ intent that the easement be appurtenant. There are some jurisdictions, however, that require the estates affected by an appurtenant easement to be adjacent. In such jurisdictions, there are a number of ways to meet— or potentially relax—the adjacency requirement while furthering the goal of private lands conservation. The following list is a brief sample of such methods:

Purchase by NGOs of land that can serve as adjacent estates - A method for an NGO to meet an adjacent lands requirement by acquiring, via purchase or donation, land adjacent to the property to be subject to the easement. This allows the NGO’s property to be the dominant estate, and the NGO to hold the easement over adjoining lands.

Creative “nexus” arguments for non-adjacent lands - A potential method for creating a valid appurtenant easement between non-adjacent properties by establishing (e.g., by successfully arguing its existence in a court of law) an adequate nexus between the properties in question. In Costa Rica, the Center for Environmental Law and Natural Resources (CEDARENA) created an appurtenant easement between a parcel of private land and a nearby state reserve that shared the same birds.

Reciprocal easements - Enables adjacent landowners to limit their respective land uses through easements granted to each other— a method that provides on protection for both properties. Working with private landowners, conservation groups in Latin America have used reciprocal easements that grant a third-party NGO the right to enforce the easement—with express authority to enter the property, monitor compliance, and seek judicially enforcement of the rights and obligations derived from the easement. Thus, the use of reciprocal easements can potentially provide a conservation NGO with enforceable rights over land, without the need for the NGO to own adjacent land.

Use of public lands as the dominant estate to hold an easement - Easements over private land have been created in several Latin America countries by using adjacent or nearby public lands as the dominant estate. In some instances, the easements have also provided a third-party NGO with the right to enforce its terms.

Legal limitations and uncertainties to third-party enforcement - The common law of some jurisdictions only recognizes the right of an easement’s holder to enforce its terms. Thus, depending on the jurisdiction in question, the practice of granting a third-party NGO the right to enforce the easement may or may not survive legal scrutiny. Additionally, the relevant legal authority is often unclear as to whether the grant to an NGO of the right to monitor and enforce an easement is a real property right that runs with the land, or a personal right enforceable only against the original maker of the easement.

Under the common law adhered to in the U.S., third party enforcement of a conservation easement would be invalidated in court due to a basic principle of contract law which mandates only the parties to the contract may enforce its terms. However, many U.S. states have laws authorizing the assignment of this specific power to non-profit organizations—provided the assignment is written into the conservation easement. Since Palaun law has ties to both ALI Restatements and the common law, it seems that this may be an acceptable practice in Palau.

2. Conservation easements in gross

Unlike an appurtenant easement, an easement in gross is not created for the benefit of any land owned by the owner of the easement, but instead attaches personally to the easement owner— regardless of whether the owner of the easement owns any land. At common law an easement in gross could not be transferred. Today, however, there are many jurisdictions where legislation and more modem trends in the relevant common law have authorized the transferability of easements in gross as embodied in the Restatement.

As noted above, both an appurtenant conservation easement and a conservation easement in gross meet the legal criteria for what is known as a negative easement—an easement that prohibits the owner of the servient estate from doing something. Conservation easements are negative in character because they prevent the owner of the burdened estate from developing the land, typically in any way that would alter its existing natural, open, scenic, or ecological condition. However, while the common law has generally recognized and enforced certain limited types of negative easements, it has generally refused to enforce negative easements in gross. Due to doubts over the validity and transferability of negative easements in gross at common law, statutes have been enacted in most U.S. states authorizing conservation easements—both in gross and appurtenant.

In addition to statutorily authorized interests in land, U.S. common law recognizes a number of interests in land that have the potential to facilitate the goal of private lands conservation in the Palau. Among these interests are real covenants, equitable servitudes, easements and profits. It is important to note, however, that while the common law recognizes these interests, it has traditionally imposed requirements that, in many instances, render their use problematic for conservation purposes. The American Law Institute’s Restatement (Third) of property has simplified the law governing real covenants, equitable servitudes, easements and profits by combining the rules governing these interests into a single doctrine—that of the Servitude. This modernized law of servitudes has also largely eliminated the common law impediments to the use of these interests for conservation purposes.

source: https://scholar.law.colorado.edu/cgi/viewcontent.cgi?article=1172&context=books_reports_studies