2. Ownership of planted trees
The question of ownership of planted trees is strongly tied to land ownership, and can therefore be analysed alongside the latter. Aside from being helpful to investors, clarifying the ownership of planted trees can also alleviate legitimate fears that producers may have regarding the ownership of these trees and the benefits that can be derived from their planting efforts. This will go a long way towards encouraging them to develop (agro) forestry activities on their land.
2.1 Who owns a tree planted on land with a land title?
Ownership of planted trees is determined based on whether or not an agreement exists between the parties involved in accordance with Article 27 paragraph 2 of the Forest Code: “Ownership of a newly established forest or a planted tree lies with the landowner or the person who established or planted it under an agreement with the landowner”.
The agreement between the parties can therefore stipulate that ownership of the trees planted by an investor reverts either to the investor or to the owner, i.e., the land title holder.¹³
Where the parties agree, there may be a difference between ownership of the land and ownership of that which is above and below the ground. The owner of a plot of land may therefore be different from the owner of the trees planted on it.¹⁴
In the absence of agreement between the parties, ownership of the tree reverts to the land title holder if, for example, he or she was unaware of the project (which is implied by Article 27 of the Forest Code). In this case, the land title holder can ask the investor to remove the planted trees. However, if the land title holder wants to keep the planted trees, he or she is required to compensate the investor (Article 555 of the Civil Code).
But if the land title holder was made aware of the project by the investor and allowed it to proceed, the trees will not belong to the land title holder. Ownership of the planted trees then reverts to the investor (as implied by Article 27 paragraph 2 of the Forest Code). In this case, the land title holder who wants to reclaim a plot, whether or not he or she wants to keep the planted trees, is required to compensate the investor (Article 555 of the Civil Code).
The above analysis is also applies to for compensatory reforestation, which is carried out to offset the timber removed from selective logging areas. So, depending on whether an agreement exists between the parties, ownership of the trees lies either with the land title holder or with the operator who planted the trees.
This type of situation will very rarely arise in the years to come, given the current very low level of land registration in the country.
2.2 Who owns a tree planted on land with a land certificate?
As per the previous case, an (agro)forestry project investor can be the owner of the trees he or she plants, or whose planting he or she finances, if the investor has, for example, gained access by leasing the land subject to a land certificate and has agreed with the lessor that the trees planted are the investor’s property.
If no specific agreement exists between the parties, the rules that apply to land with titles also apply to land with land certificates.
Given various initiatives, both recent (REDD+ project in the La Mé region) or ongoing (Côte d’Ivoire Rural Land Policy Improvement and Implementation Project – PAMOFOR;¹⁵ Côte d’Ivoire Land Partnership – CLAP, etc.) to issue land certificates, this situation is likely to become increasingly common in the future.
2.3 Who owns a tree planted on land subject to customary rights?
This issue is key, because this is currently the most common situation, as very little rural land is covered by a certificate or title.
There is no legal certainty regarding the ownership of trees planted on land subject to customary rights. If the investor has planted trees on land for which another person enjoys customary rights, the investor is exposed to risk. The lack of a contract leans that the investor can be evicted at any time, even if he or she is allowed to claim compensation for the plantations in question (Article 555 of the Civil Code). The conditions for transactions other than transfer (and in particular leasing) have yet to be determined by decree.
This risky situation severely limits investment opportunities.
2.4 What is the consequence of ownership of the planted tree?
In Ivorian law, owning a piece of property means having the right to benefit from the full use and enjoyment of the property, provided that one does not use it in a way that is prohibited by laws or regulations.¹⁶
This means that someone who owns a tree can use it, keep it and enjoy the fruits generated by it. The tree owner can also sell the tree or give it away free of charge, in compliance with the regulations in force, which have yet to be clarified, particularly with regard to the terms of sale.