What is the law of property?
Property law in Nepal takes many forms. We have practices like guthi, kipat, and many other land systems that are not found anywhere else in the world.
Property law provides the owner of the property with a set of rights. It includes the right of possession, which allows you to occupy the property. It also has the right to control the property. It grants the right to enjoy the property without interference from others. The ultimate right is the right to refuse the interests or uses of others’ property.
What do you mean by property? How is the property divided up in Nepal?
Pursuant to Section 251 of the National Civil Code 2017, property means “Any cash, goods or work is property where such cash, goods or actions may be used or traded in or the title to which they may be transferred by way of purchase, sale or otherwise, or any benefit may be derived therefrom.”
In Nepal, under the 2017 Civil Code, property can be exchanged, sold and modified and is legally protected. If someone infringes the exercise of that right, they could sue under the tort law and encroachment law to protect it.
Types of Property
Section 252 of the National Civil Code 2017 classifies property in two types:
(a) Movable property.
(b) Immovable property.
4. List of immovable properties:
Section 253, National Civil Code 2017 lists as immovable property:
(a) A building or land or structure attached thereto;
b) Any goods firmly attached to a building or land;
c) A mine, stone or mineral attached to the land;
d) Natural water, surface water and groundwater;
(e) A building or other structure so permanently constructed that it may float over a river, lake or pond;
(f) A standing tree, a plant or a fruit tree, or a fruit or a flower growing on such a tree, a plant or a fruit tree or a crop on the ground, or
(g) A movable property attached to the immovable property.
5. List of movable properties:
Section 254 of the National Civil Code 2017 sets out the following properties to be movable property:
(a) Cash or goods which may be traded in cash or foreign currency;
(b) Gold, silver, jewelry, jewelry, gold or silver ornament, or precious stone;
(c) Other goods which may be moved other than those referred to in paragraph (a) or (b),
(d) A bond, security, promissory note, bill of exchange, letter of credit or other negotiable instrument or a benefit derived therefrom;
(e) Intellectual property,
f) A security right,
g) A commercial goodwill or a franchise,
(h) Property other than immovable property.
6. List of properties according to ownership:
The Nepali National Civil Code 2017 mentions the following properties on the basis of ownership:
(a) Personal property,
b) Property in common,
(c) The joint property;
d) Property of the Community,
(e) Public property;
(f) Assets of the Government,
(g) Properties under trust
7. Under what circumstances does the court declare property to be private property?
It is important as to who gets the share of the property or who can be divided or what constitutes private property in cases involving the division of property and others. The Nepal National Civil Code 2017 classifies the following properties as private property:
It is important to know who gets the share of the property or what can be divided or what constitutes private property in cases involving the division of property and others. The Nepal National Civil Code 2017 classifies the following properties as private property:
8. Property acquired through knowledge, skills or effort;
(b) Property acquired by way of donation, will or succession;
(c) The property acquired by way of a lottery or gift;
(d) Property acquired by way of remuneration, gratuity, pension, medical expenses, insurance or other social security;
(g) Property acquired or acquired by a woman prior to marriage, or acquired by or on the part of her parent at the time of marriage;
(h) Property granted to a woman by the husband or, with the consent of all co-parents of the husband’s side, that she shall have exclusive rights therein, or movable or immovable property received from relatives or friends of the husband’s side and property therefrom;
(I) Property which is, according to law, considered to be the exclusive private property of a person.
9. What can you do about a border dispute with your neighbour?
Understanding the demarcation line
It becomes crucial as to what redress should be claimed if your neighbour intrudes your land. In this case, it is imperative to know and understand in detail what and how the intrusion took place; the duration of the intrusion, the portion of the land intrusion. It is crucial to assess where and to what extent the land boundary begins and ends.
To obtain accurate information about the land
The field visit must be conducted in order to ensure that the land exists as per the land map issued to it in the event of a dispute concerning the land. The land surveyor must be appointed to evaluate the land in detail before bringing an action against the alleged intruder to establish his claim.
During a survey, the licensed surveyor will verify the demarcation line of your property on the basis of the legal description contained in your document and the map. This will help determine the exact position of the land.
Discussions with the neighbor
It is better to settle land disputes by mutual agreement rather than to choose to bring legal action against the alleged intruder. In the case of lawsuits, it costs the litigant-money, time effort-to have the court document served on the other party and also to have it placed on the judge’s dock.
It might take a long time to settle the dispute. It is appropriate to have a conversation about the land dispute and to settle it through mutual understanding.
Submission to the District Court
In the event of failure to reach an agreement despite efforts to resolve the land dispute, the last resort is to bring an action before the district court.
You must bring a lawsuit against your neighbour within 6 months of the date of the intrusion. A legal proposal on land intrusion requires a great deal of research and paperwork.
Choose a mediator.
When the litigant brings a land intrusion suit against the alleged rapist, it is mandatory for the district court to refer the case to the mediator. You and your neighbor must work together to choose a mediator who acts neutrally and works to best meet your needs and avoid collusion.
Collection of proof
The court requests the Land Administration Office to provide documents relating to the land in relation to the litigant by issuing a subpoena to the Land Administration Office concerned.
The court shall issue an order for land surveys to be carried out by appointing a surveyor along with a court official upon receipt of documents from the Land Administration Office.
The Licensed Surveyor will conduct a survey and prepare a detailed report on his/her site visit that will assist the court and the judge deliver justice on the basis of evidence submitted to the court.
The court delivers its ruling on the basis of a detailed report submitted to the court by the team assigned to conduct the land survey relating to the alleged intrusion.
Real Estate and Land Law
Real estate deals with the sale of the property by a private company. The company works on the land, builds infrastructure on the land, including roads, apartments for business purposes, to attract buyers. This is a lucrative business in Nepal. Developing apartments and housing has been on demand, attracting real-estate investors to invest in these sectors.
You can have excellent legal advice and guidance related to real estate law from our expert lawyers who have proven skills, expertise, risk assessment and management and experience to meet your needs.
Below are the list of areas:
I. Selecting land
The firm works closely with local land brokers and agents. We assist you in securing land at a reasonable cost if you need land for real estate purposes.
We assess the risk of whether the land contributes to the legal dispute.
II. Assist in building construction:
If you decide to build infrastructure, including apartments and real estate housing, then you would have to undergo various stages. In the first phase, you would have to get the approval of the building map from the Land Administration Office of the Municipality to continue building the infrastructure.
You must submit an application to the Municipality for approval and secure permission from other government entities for which we offer our services.
It includes office buildings, shopping malls and restaurants to name a few.
III. Other Real Estate services we offer:
• Establishing construction companies
• Applying to the Construction and Registration Board for licenses
• Purchase of land for construction purposes
• Design and review of contracts
• Representing clients in the mediation, negotiation and arbitration of real estate contracts;
• Representing clients on bid protests at all levels of project development, including prosecution and defence of bid protests;
Should you have any questions please do not hesitate to contact us.
Alpana Bhandari is a founding partner and CEO of Prime Legal Consultants and Research Center. She graduated from American University Washington College of Law. She specializes in corporate/arbitration and family law.