Tuesday, 27 September 2011

English Land Law - No.1 Estates in land and tenure

This post takes a look at the two basic doctrines of English land law - estates and tenure.  Estates remain of fundamental importance.  Tenure continues to exist but is much reduced in importance though, occasionally, it can have impact.   Although much title to land is now registered at the Land Registry, the law continues to be built upon its historic foundations.

Feudal land holding:

William I ("The Conqueror") regarded the whole of England as his by Conquest.  He wished to know how much land was held by each landowner, what livestock they had and how much it was worth.  Consequently, the Domesday Survey was carried out.  The Commissioners visited most of what is now England together with parts of  Wales.  The Domesday Book refers to some 13,418, mostly small, places.  The entries tell us the County and Hundred in which each place was located.  See Domesday Map - a website into which you can put your postcode and discover what, if anything, Domesday Book had to say about your locality.

"Ownership" of land was a sign of wealth and power and, in this regard, some things may not have entirely changed to this day.  To reward his followers and those of the English who submitted to him, he granted and confirmed certain lands to be held of him as overlord.    These landholders became the King's principal tenants - Tenants-in-Chief or Tenants-in-capite.  There were around 1500 tenants-in-chief in 1086 - the time of the Domesday Book.  Such grants of land were not unconditional.  Thus, the tenant would have to remain loyal to the King and might have had to provide services such as providing a number of "knights" for the King's military escapades.   The medieval Kings entered into many such campaigns.

For around 200 years after the Conquest, the tenants-in-chief also
granted lands to their supporters in exchange for duties and, in turn, further grants were made by those intermediate lords (or "mesne lords").  This process was known as subinfeudation and could have carried on almost indefinitely but with parcels of land decreasing in size and value.  However, in 1290, the practice was stopped by the statute known as Quia Emptores.   The reason for this was that subinfeudation was preventing the "Lords and other great men" from obtaining their entitlements by way of  "Escheats, Marriages, and Wardships of Lands and Tenements."   The statute tells us that this seemed "very hard and extream unto those Lords and other great men."  Suppose that a person (call him S) held land from a lord (L).  After Quia Emptores, S could transfer his land to another (call him B) but not by way of subinfeudation.  Upon a transfer, B would hold the land of L not S.  In this way, L's economic rights were preserved.

In this feudal system of land holding we see the first of the common law doctrines of land law - that of tenures.  The other doctrine was that of Estates.   Essentially, the "estate" defined for how long the land could be held and "tenure" defined the terms on which the land was held.  Both of these principles continue to be the bedrock of land law.  It also remains the case that only the Crown actually owns land and this can sometimes have consequences in modern times.  Other persons can only own an estate in land and they will hold it subject to a tenure.

Estates in land:

The word "estate" in land law indicates an interest in land of some particular duration.

As the English legal system developed, the Common Law Courts came to recognise certain "estates" in land.  A person who had an estate recognised by the common law courts could be said to hold a "legal estate" and his title would be good against everyone ("the whole world").

A further development of the legal system was the Court of Chancery.  This came about as one means whereby some of the rigour of the common law courts could be ameliorated.  Rather than develop entirely different forms of estate, the Court of Chancery adopted similar forms of "estate" to the common law.  The owner of an estate recognised only by the Court of Chancery held an "equitable estate" named after the branch of law - EQUITY - practised in the Court of Chancery.  However, the owner of an equitable estate was not in as strong a position as the owner of a legal estate.  Over time, it came to be the rule that the owner of an equitable estate was protected against everyone except the "Bona Fide Purchaser of a Legal Estate for Value Without Notice" - often abbreviated simply to "a bona fide purchaser."  This person - the BFPLEFVWN" - is sometimes referred to as "Equity's Darling."

There were three estates of freehold: the fee simple; the fee tail and the life estate.  The fee tail (or entail) was introduced by the statute De Donis Conditionalibus in 1285.   A fee simple was an estate which could be inherited by the heirs of the first holder.  This was almost an eternal estate so long as there were heirs to inherit.  Fees simple could be absolute or determinable or subject to a condition.  The distinction between the latter two is troublesome.  A fee tail was restricted so that it could only be inherited by lineal descendants of the original tenant.  A life estate lasted only for the life of the person to whom it was granted.  However, there could also be a life estate limited by another life - referred to as a life estate pur autre vie (for another life).  The nearest estate to absolute ownership was the fee simple.

It should be noted that any of the estates could be held in possession - so that the tenant could enjoy the land at the present time.  However, an estate could be "in remainder."  Suppose that A owned land in fee simple and he granted a life estate to B and the remainder to C in fee simple.  B's life estate was in possession and he could live there.  C's estate was "in remainder" since he could not enjoy the land until B's death.  Yet another possibility was that an estate could be "in reversion."  Suppose that A (fee simple owner) granted a life estate to B.  Upon B's death, the land would revert to A (or his heirs).

Leaseholds:

Leaseholds (or "terms of years") were not regarded as "estates" in the feudal land law.  They were regarded more as contractual rights binding only the parties to the agreement.  It was not until the end of the 15th century that protection was given to leaseholders by means of an action known as "ejectment."    Thereafter they acquired many of the characteristics of an "estate" in land.  Unlike freeholds, they were of definite duration (e.g. 99 years).  They were never regarded, in the strict sense, as "real property" but were classified by the odd name of "chattels real."

Transferring estates:

It became possible to transfer an estate either by conveyance - that is, a transaction between living person or by will.  Under the Law of Property Act 1925 s.52, a deed must be used to convey a legal estate in land.  Deeds are governed by the Law of Property (Miscellanous Provisions) Act 1989 s.1.   The making of a valid will is subject to strict requirements set out in the Wills Act 1837.

Changes to the law from 1st January 1926:

From this date, major changes to the law were effective under the Law of Property Acts 1922-25.  The aim of much of the reform was to simplify land transfer.  From that date, the only legal estates recognised in land are the fee simple absolute in possession and the term of years absolute.  ALL other estates must now exist in Equity and are referred to as equitable interests.  As an example, suppose that Alan wished to give a life interest in his land to Brenda and then to pass the fee simple to Colin.  Neither Alan's life interest nor Colin's fee simple in remainder can (since 1925) exist as legal estates.  Alan will therefore have to put his fee simple on trust for Brenda for life with remainder to Colin in fee simple.  Brenda will have an equitable life interest and Colin an equitable fee simple in remainder.

(Note:  Until the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) came into force on 1st January 1997, the type of trust required was usually a Trust for Sale.  This avoided the complexities of the Settled Land Act 1925.   Since TOLATA came into force, a "Trust of Land" has to be used).

Registration of title to land:

From about the mid 19th century, various enactments provided for title to land to be registered.  At first this was voluntary.  Over time, registration has become compulsory.  However, a considerable amount of unregistered land remains since the law only requires registration when there is a dealing with the land - e.g. a sale of transfer by sale - (see Land Registration Act 2002 s.4).  At the present time there are Land Registration Acts of 1925, 1936, 1986, 1988, 1997 and 2002.  The ultimate aim is that all title will be registered and then the old conveyancing methods for unregistered land - involving inspection of title deeds and wills etc. in order to obtain a good root of title - will have gone forever.  Nevertheless, the legal estates in land remain central to the registration scheme.

See - "A short history of land registration in England and Wales"

When a freehold title is registered for the first time it will be registered as absolute title, qualified title or possessory title.  Similary, when a leasehold is registered for the first time it will be either absolute title, good leasehold title, qualfiied title or possessory title.

Tenure:

Historically, there have been numerous forms of tenure which divided into (1) Free tenures comprising - (A) Tenures in Chivalry; (B) Tenures in Socage and (C) Spiritual Tenures and (2) Unfree tenures such as copyhold tenure and (3) Certain other tenures such as ancient demesne.  These had a fascinating history but the majority of them have now disappeared.  Socage tenure remains.  Occasionally, there can be certain rights existing in land which arise from tenure.  Tenure reminds us that the land ownership is not absolute.  In some instances, land can be taken by the Crown.  This usually arises when there is a death and no will has been made (i.e. an intestacy) and there is no one to take the land under the rules governing distribution of property on an intestacy - (see Bona Vacantia).


It surprises many to learn that their home (freehold) is held on a fee simple absolute in possession and is, legally speaking, usually held on socage tenure.  Although little mention is made of the tenure, it nevertheless remains the law.

Other links:


History of Law blog - interesting items of legal history - a new blog which is being developed and contains items relating to land law.

3 comments:

  1. This article is incredible. You explain everything clearly and in detail. Much more better than Gray & Gray ;) Do you have any other articles on Land?

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  2. @ Anonymous - thank you. I hope to do some follow ups in the near future.

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  3. This article is so clear to my understanding. Want to do more research on other topics here. Thks. Tina.

    ReplyDelete