In common legal use, allodial title is used to distinguish absolute ownership of land by individuals from feudal ownership, where property ownership is dependent on relationship to a lord or the sovereign. Webster's first dictionary (1825 ed) says allodium is "land which is absolute property of the owner, real estate held in absolute independence, without being subject to any rent, service, or acknowledgement to a superior. It is thus opposed to feud."
True allodial title is rare, with most property ownership in the common law world—primarily, the United Kingdom, the United States, Canada, Australia, New Zealand and the Republic of Ireland—described more properly as being in fee simple. In particular, land is said to be "held of the Crown" in England and Wales and the Commonwealth realms. In England, there is no allodial land, all land being held of the Crown; even in the United States most lands are not allodial, as evidenced by the existence of property taxes. Some of the Commonwealth realms (particularly Australia) recognise native title, a form of allodial title that does not originate from a Crown grant.
In France, while allodial title existed before the French Revolution, it was rare and limited to ecclesiastical properties and property that had fallen out of feudal ownership. After the French Revolution allodial title became the norm in France and other civil law countries that were under Napoleonic legal influences. Interestingly Quebec adopted a form of allodial title when it abolished feudalism in the mid-nineteenth century making the forms of ownership in Upper and Lower Canada remarkably similar in substance.
Property owned under allodial title is referred to as allodial land, allodium, or an allod.
However, this distinction between common law and equity title helped develop forms of security based on the distinction, now known as the mortgage. Enjoyment of the property during the period where the mortgage was in good standing could be assured through the equity courts, while the right to foreclose on the property to merge the common law and equity title were guaranteed in the common law courts.
However, proving ownership in absence of the documents was an impossibility, and forgeries of crown grants were common and difficult to detect. Moreover, it was nearly impossible to determine if land was subject to common law encumbrances (i.e. mortgages). This led to the establishment in the 18th century of land registry systems, where a central office in each county was responsible for the filing of land deed, mortgages, liens and other evidence of ownership, transfer or encumbrance. Under land registry, deeds and charges were not recognized unless they were filed, and persons who filed were given priority over previous transactions that had not been filed. Moreover, under statutes of limitation, only documents that had been filed in the past 40 years had to be consulted to determine the chain of ownership.
Before 1774, all land in the American colonies could also be traced to royal grants, usually one grant creating each colony. The original grantee then sold or granted parcels of land within their grant to private citizens and other legal entities. However, when the colonies won the Revolutionary War, they did not want to retain a feudal system of land ownership. The Treaty of Paris (1783), which ended formal hostilities and recognized American independence, also had the effect of ending any residual rights held by the original grantees or the Crown. Essentially, this merely recognized that no person holding land in the new United States owed any allegiance or duty to the Crown or any English noble. There is no specific reference to allodial title in the text of the treaty. Some states created a form of allodial title while others retained the tenurial system with the state as the new ultimate landholder.
Apart from land that was formally owned at the time of the Revolutionary War, most American landholders can trace their title back to grants by the federal or state governments of land obtained by purchase (Louisiana Purchase, Florida, Alaska), treaty (the Ohio Valley, New Mexico, Arizona, and California), or annexation (Texas, Hawaii). However, in reality, previous grants prior to those territories becoming U.S. possessions were recognized. In fact, in Dartmouth College v. Woodward, the United States Supreme Court ruled a New Hampshire law that attempted to revoke the land grant to Dartmouth College from King George III was unconstitutional.
Many state constitutions (Arkansas, Wisconsin, Minnesota, New York) refer to allodial title, but only to clearly distinguish it from feudal title, which appears to be illegal throughout the United States. The conditions under which the government can compel the sale of privately owned real property for public benefit are established by eminent domain laws of either the federal or state governments, respectively. The Fifth Amendment to the United States Constitution requires just compensation for eminent domain compelled sale. The right to tax real estate is preserved in the Constitution though it is a right reserved for the states (i.e. via property taxes). In addition, the government powers of police power, and escheat have been retained in the American legal system.
Schemes to obtain allodial title usually advise property owners to file a deed of allodial title with the local registry office, or to publish a notice of allodial title in a local newspaper. However, neither these or any other method is recognised by U.S. courts, and attempts to improperly assert an allodial title in U.S. courts may be classified as a "frivolous claim".
Nevada allows persons who own and live in single family residences to obtain allodial title on land they own if the land is free of mortgage and tax arrears. Nevada accepts a payment based on an actuarial calculation of the present value of the future property taxes payable given the age of the youngest person who holds title to the property. Once this amount is paid, a certificate of allodial title is granted. Property taxes owing are paid by the state treasurer from the funds paid to obtain the certificate. Allodial title is subject to exemptions from seizure in debt or bankruptcy under homestead laws, and the taxes are paid by the state treasurer as long as the original owner remains in the home. However, like the barons under Magna Carta, Nevada law still allows the seizure of property if it is used in a criminal enterprise.
Other institutional property ownership can also be called allodial, in that property granted for certain uses is held absolutely and cannot be alienated in most circumstances. For example, universities and colleges that hold property for educational purposes can be described as having allodial title. In most states, property held by churches for the purpose of worship also has status similar to allodial title. American Indian reservations also share some similarity with allodial title. However, in all these cases, it is also clear that if the title ceases to be used for the purposes for which it was granted, it reverts to the state or the federal government.
Allodial title cannot, in theory, be legally taken away against the will of the owner. However, an allodial owner can contractually give up allodial ownership and that allodial ownership can be restored or sold or passed on to a single heir. Allodial title cannot be taken away by fraud, only by legitimate contract.