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.