History of English land law
Encyclopedia
The history of English land law derives from a mixture of Roman, Norman and modern legislative sources.
Such terms as "fee
" or "homage
" carry us back into feudal times. Rights of common
and distress
are based upon still older institutions, forming the very basis of primitive law. The conception of tenure
is the fundamental ground of distinction between real and personal estate, the former only being strictly entitled to the name of estate
. The division into real and personal is coincident to a great extent with that into immovable and movable, generally used by systems of law founded on the Roman (see Personal Property
.) That it is not entirely coincident is due to the influence of the Roman law
itself. The Greeks and the Romans
of the republic were essentially nations of citizens; the Teutons were essentially a nation of land-folk; the Roman empire bridged the gulf between the two.
, upon the previously existing course of Teutonic custom. The distinguishing features of the Teutonic system were enjoyment in common and the absence of private ownership, except to a limited extent. The principal features of the old English land law before the Conquest, from which the modern law has developed, were
The rudiments of the conceptions of tenure and of the Crown
as Lord Paramount
were found in the old English system, and leenland was an anticipation of the limited interests which afterwards became of such importance.
The elements of feudalism so far existed in England under the Anglo-Saxon and Danish kings as to make it easy to introduce it in full at the Norman Conquest. What the Norman Conquest did was not to change all at once allodial into feudal tenure, but to complete the association of territorial with personal dependence in a state of society already prepared for it. Nulle terre sans seigneur
was one of the fundamental axioms of feudalism. There might be any number of infeudations and subinfeudations to mesne
lords, but the chain of seigniory was complete, depending in the last resort upon the king as lord paramount. Land was not owned by free owners owing only necessary militia
duties to the state, but was held of the king by knight-service
. The folkland
became the king's land; the soldier was a landowner instead of the landowner being a soldier. Free owners tended to become tenants of the lord, the township to be lost in the manor
. The common land became in law the waste of the manor, its enjoyment resting upon a presumed grant by the lord. On the other hand, the whole of England did not become manorial; the conflict between the township and the manor resulted in a compromise, the result of which affects land tenure in England
to this day. But it was a compromise much to the advantage of the privileged class, for in England more than in any other country the land law is the law of the nobility
and not of the people. One reason of this is that, as England was never so completely feudalized as were some of the European continental states, the burden of feudalism was not so severely felt, and has led to less agitation for reform.
The land forfeited to the Conqueror was re-granted by him to be held by knight-service due to the king, not to the mesne lord as in European continental feudalism. In 1086 at the council of Salisbury all the landholders swore fealty to the crown. In the full vigour of feudalism the inhabitants of England were either free or not free. The free inhabitants held their lands either by free tenure or by a tenure which was originally that of a non-free inhabitant, but attached to land in the possession of a free man. Free tenure was either military tenure, called also tenure in chivalry
, or socage
(including burgage
and petit serjeanty
), or frankalmoin
, by which ecclesiastical corporations generally held their land. The non-free inhabitants were called in the Domesday Book
servi, cotarii, or bordarii, and later nativi or villani, the last name being applied to both free men and serfs. All these were in a more or less dependent condition. The free tenures all exist at the present day, though, as will appear later, the military tenures have shrunk into the unimportant and exceptional tenure of grand serjeanty. The non-free tenures are to a certain extent represented by copyhold
.
The most important difference between the military and socage tenures was the mode of descent. Whether or not a feudal benefice
was originally hereditary, it had certainly become so at the time of the Conquest, and it descended to the eldest son. This applied at once in England to land held by knight-service as far as regarded the capital fief. The descent of socage lands or lands other than the capital fief for some time followed the old pre-Conquest rule of descent. Thus in the so-called "Laws of Henry I
" The lands other than the capital fief and some socage lands were divided among all the sons equally. But by the time of Henry de Bracton
the course of descent of lands held by knight-service had so far prevailed that, though it was a question of fact whether the land was partible or not, if there was no evidence either way descent to the eldest son was presumed. Relics of the old custom still remain in the case of gavelkind
. The military tenant was subject to the feudal incidents, from which the tenant in socage was exempt. These additional fees and obligations were often oppressive. Alienation
of lands by will, except in a few favoured districts, became impossible; alienation inter vivos was restrained in one direction in the interests of the heir, in another in the interests of the lord. At the time of Glanvill a tenant had a greater power of alienation over land which he had purchased than over land which he had inherited. But by the time of Bracton the heir had ceased to have any interest in either kind of land. The lords were more successful. It was enacted by Magna Carta
that a free man should not give or sell so much of his land as to leave an amount insufficient to perform his services to his lord. In spite of this provision, the rights of the lords were continually diminished by subinfeudation
until the passing of the Statute of Quia Emptores. Alienation by a tenant-in-chief
of the crown without licence was a ground of forfeiture until 1327, when a fine was substituted.
The influence of local custom upon the land law must have become weakened after the circuits of the judges of the King's Court were established by Henry II. Jurisdiction over litigation touching the freehold was taken away from the lord's courts in 1392.
The common law
as far as it dealt with real estate had in the main assumed its present aspect by the reign of Henry III
. The changes which have been made since that date have been chiefly due to the action of equity and legislation, the latter sometimes interpreted by the courts in a manner very different from the intention of parliament. The most important influence of equity has been exercised in mortgage and trusts in the doctrine of specific performance
of contracts concerning real estate, and in relief from forfeiture for breach
of covenant.
forbade the alienation of estates granted to a man and the heirs of his body, which before the statute usually became on the birth of an heir at once alienable, and so the lord lost his escheat
. The statute Quia Emptores
preserved those rights of the lords which were up to that time subject to be defeated by subinfeudation, by enacting that in any alienation of lands the alienee should hold them of the same lord of the fee as the alienor. Since 1290 it has been impossible to create an estate in fee-simple to be held of a mesne lord, or to reserve a rent upon a grant of an estate in fee (unless in the form of a rent-charge), or to create a new manor. The statute, however, does not bind the crown. The practical effect of the statute was to make the transfer of land thenceforward more of a commercial and less of a feudal transaction. The writ of elegit was introduced by the Statute of Westminster II in 1285 as a creditor's remedy over real estate. It has, however, been considerably modified by subsequent legislation.
From 1290 to the reign of Henry VIII
, there is no statute of the first importance dealing with real estate. The reign of Henry VIII, like that of Edward I, is signalized by three acts, the effects of which continue to this day. The one which has had the most lasting influence in law is the Statute of Uses
, intended to provide against secrecy of sales of land. As a necessary sequel, the Statute of Enrollments required all bargains and sales of land be duly enrolled. Bargain and sale
was a form of equitable transfer which had for some purposes superseded the common law feoffment. It applied only to estates of inheritance and not to terms of years. The unforeseen effect of the act of 1535, Enrolment of Bargains of Lands, etc. was to establish as the ordinary form of conveyance until 1841 the conveyance by lease and release. Uses having become legal estate by the Statute of Uses, and therefore no longer devisable, the Statute of Wills
(explained by the Wills Act of 1542) was passed to remedy this inconvenience. At least as late as 1911, it remained law as to wills made before 1838.
In the reign of Elizabeth the Fraudulent Conveyances Acts of 1571 and of 1584 avoided fraudulent conveyances as against all parties and voluntary conveyances as against subsequent purchasers for valuable consideration. Early in the reign of Charles II
the Tenures Abolition Act 1660
turned most feudal tenures into tenure by free and common socage and abolished the feudal incidents. The Statute of Frauds
contained provisions that certain leases and assignments, and that all agreements and trusts relating to land, should be in writing. The land registries
of Middlesex
and Yorkshire
date from the reign of Anne. Devises (gifts by will) of land for charitable purposes were forbidden by the Charitable Uses Act of 1735. In the next reign the first general Inclosure Act
, the Inclosure (Consolidation) Act 1801, was passed. In the reign of William IV
fines and recoveries were abolished and simpler modes of conveyance substituted, and the laws of inheritance and dower were amended.
In the reign of Victoria
there was a vast mass of legislation dealing with real estate in almost every conceivable aspect. At the immediate beginning of the reign stands the Wills Act 1837
. The transfer of real estate was simplified by the Real Property Act of 1845 and by the Conveyancing Acts of 1881 and 1882. Additional powers of dealing with settled estates were given by the Settled Estates Act 1856, later by the Settled Estates Act 1877, and the Settled Land Act 1882. Succession duty
was levied for the first time on freeholds in 1853. The strictness of the Mortmain Act was relaxed in favour of gifts and sales to public institutions of various kinds, such as schools, parks and museums. The period of limitation was shortened for most purposes from twenty to twelve years by the Real Property Limitation Act 1874. Several acts were passed dealing with the enfranchisement and commutation of copyholds and the preservation of commons and open spaces. The Naturalization Act 1870 enabled aliens to hold and transfer land in England. The Felony Act 1870, abolished forfeiture of real estate on conviction for felony. The Agricultural Holdings Acts 1883 and 1900, and other acts, gave the tenant of a tenancy within the acts a general right to compensation for improvements, substituted a year's notice to quit for the six months' notice previously necessary, enlarged the tenant's right to fixtures, and limited the amount of distress. By the Intestate Estates Act 1884 the law of escheat was extended to incorporeal hereditaments and equitable estates. Among other subjects which have been dealt with by legislation in the 19th century may be mentioned land transfer, registration, mortgage, partition, excambion
, fixtures, taking of land in execution, declaration of title and apportionment.
The Law of Property Act 1925
was meant to reduce the number of legal estates to two, and to make easier the transfer of interests in land.
The Land Registration Act 2002
replaced previous legislation governing land registration
. , the Act, together with the Land Registration Rules, regulates the role and practice of HM Land Registry
.
Such terms as "fee
Fee
A fee is the price one pays as remuneration for services. Fees usually allow for overhead, wages, costs, and markup.Traditionally, professionals in Great Britain received a fee in contradistinction to a payment, salary, or wage, and would often use guineas rather than pounds as units of account...
" or "homage
Homage
Homage is a show or demonstration of respect or dedication to someone or something, sometimes by simple declaration but often by some more oblique reference, artistic or poetic....
" carry us back into feudal times. Rights of common
Common land
Common land is land owned collectively or by one person, but over which other people have certain traditional rights, such as to allow their livestock to graze upon it, to collect firewood, or to cut turf for fuel...
and distress
Distraint
Distraint or distress is "the seizure of someone’s property in order to obtain payment of rent or other money owed", especially in common law countries...
are based upon still older institutions, forming the very basis of primitive law. The conception of tenure
Land tenure
Land tenure is the name given, particularly in common law systems, to the legal regime in which land is owned by an individual, who is said to "hold" the land . The sovereign monarch, known as The Crown, held land in its own right. All private owners are either its tenants or sub-tenants...
is the fundamental ground of distinction between real and personal estate, the former only being strictly entitled to the name of estate
Estate in land
An estate in land is an interest in real property that is or may become possessory.This should be distinguished from an "estate" as used in reference to an area of land, and "estate" as used to refer to property in general....
. The division into real and personal is coincident to a great extent with that into immovable and movable, generally used by systems of law founded on the Roman (see Personal Property
Personal property
Personal property, roughly speaking, is private property that is moveable, as opposed to real property or real estate. In the common law systems personal property may also be called chattels or personalty. In the civil law systems personal property is often called movable property or movables - any...
.) That it is not entirely coincident is due to the influence of the Roman law
Roman law
Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...
itself. The Greeks and the Romans
Ancient Rome
Ancient Rome was a thriving civilization that grew on the Italian Peninsula as early as the 8th century BC. Located along the Mediterranean Sea and centered on the city of Rome, it expanded to one of the largest empires in the ancient world....
of the republic were essentially nations of citizens; the Teutons were essentially a nation of land-folk; the Roman empire bridged the gulf between the two.
Feudalism
It is probable that the English land law was produced by the action of the policy adopted in the lower empire, finally developed into feudalismFeudalism
Feudalism was a set of legal and military customs in medieval Europe that flourished between the 9th and 15th centuries, which, broadly defined, was a system for ordering society around relationships derived from the holding of land in exchange for service or labour.Although derived from the...
, upon the previously existing course of Teutonic custom. The distinguishing features of the Teutonic system were enjoyment in common and the absence of private ownership, except to a limited extent. The principal features of the old English land law before the Conquest, from which the modern law has developed, were
- liberty of alienationAlienation (property law)Alienation, in property law, is the capacity for a piece of property or a property right to be sold or otherwise transferred from one party to another. Although property is generally deemed to be alienable, it may be subject to restraints on alienation....
, either by will or inter vivos, of such land as could be alienated, chiefly, if not entirely, bocland, subject always to the limits fixed by the boc; - publicity of transfer by enrolment in the shire-book or church-book;
- equal partitionPartition (law)A partition is a term used in the law of real property to describe an act, by a court order or otherwise, to divide up a concurrent estate into separate portions representing the proportionate interests of the tenants. Under the common law, any tenant who owns an undivided concurrent interest in...
of the estate of a deceased among the sons, and failing sons among the daughters; - cultivation to a great extent by persons in various degrees of serfdomSerfdomSerfdom is the status of peasants under feudalism, specifically relating to Manorialism. It was a condition of bondage or modified slavery which developed primarily during the High Middle Ages in Europe and lasted to the mid-19th century...
, owing money or labour rents; - variety of custom, tending to become uniform, through the application of the same principles in the local courts;
- subjection of land to the Trinoda necessitasTrinoda necessitasTrinoda necessitas is a Latin term used to refer to a "threefold tax" in Anglo-Saxon times. Subjects of an Anglo-Saxon king were required to yield three services: bridge-bote , burgh-bote , and fyrd-bote...
, a burden imposed for the purpose of defence of the realmRealmA realm is a dominion of a monarch or other sovereign ruler.The Old French word reaume, modern French royaume, was the word first adopted in English; the fixed modern spelling does not appear until the beginning of the 17th century...
.
The rudiments of the conceptions of tenure and of the Crown
The Crown
The Crown is a corporation sole that in the Commonwealth realms and any provincial or state sub-divisions thereof represents the legal embodiment of governance, whether executive, legislative, or judicial...
as Lord Paramount
Lord Paramount
Paramount , is the highest authority, or that being of the greatest importance...
were found in the old English system, and leenland was an anticipation of the limited interests which afterwards became of such importance.
The elements of feudalism so far existed in England under the Anglo-Saxon and Danish kings as to make it easy to introduce it in full at the Norman Conquest. What the Norman Conquest did was not to change all at once allodial into feudal tenure, but to complete the association of territorial with personal dependence in a state of society already prepared for it. Nulle terre sans seigneur
Nulle terre sans seigneur
In feudal law, Nulle terre sans seigneur is the principle that one provides services to the sovereign for the right to receive land from the sovereign....
was one of the fundamental axioms of feudalism. There might be any number of infeudations and subinfeudations to mesne
Mesne
Mesne , middle or intermediate, an adjective used in several legal phrases....
lords, but the chain of seigniory was complete, depending in the last resort upon the king as lord paramount. Land was not owned by free owners owing only necessary militia
Militia
The term militia is commonly used today to refer to a military force composed of ordinary citizens to provide defense, emergency law enforcement, or paramilitary service, in times of emergency without being paid a regular salary or committed to a fixed term of service. It is a polyseme with...
duties to the state, but was held of the king by knight-service
Knight-service
Knight-service was a form of Feudal land tenure under which a knight held a fief or estate of land termed a knight's fee from an overlord conditional on him as tenant performing military service for his overlord....
. The folkland
Folkland
The Folklands are the name for the original Swedish provinces of Tiundaland, Attundaland, Fjärdhundraland, and Roden which in the 1296 united to form the province of Uppland. They were originally united by electing a common king who administered the sacrifices at Uppsala and who was the commander...
became the king's land; the soldier was a landowner instead of the landowner being a soldier. Free owners tended to become tenants of the lord, the township to be lost in the manor
Manorialism
Manorialism, an essential element of feudal society, was the organizing principle of rural economy that originated in the villa system of the Late Roman Empire, was widely practiced in medieval western and parts of central Europe, and was slowly replaced by the advent of a money-based market...
. The common land became in law the waste of the manor, its enjoyment resting upon a presumed grant by the lord. On the other hand, the whole of England did not become manorial; the conflict between the township and the manor resulted in a compromise, the result of which affects land tenure in England
Land tenure in England
Land tenure in EnglandEven before the Norman Conquest, there was a strong tradition of landholding in Anglo-Saxon law. When William the Conqueror asserted sovereignty over England in 1066, he confiscated the property of the recalcitrant English landowners...
to this day. But it was a compromise much to the advantage of the privileged class, for in England more than in any other country the land law is the law of the nobility
Nobility
Nobility is a social class which possesses more acknowledged privileges or eminence than members of most other classes in a society, membership therein typically being hereditary. The privileges associated with nobility may constitute substantial advantages over or relative to non-nobles, or may be...
and not of the people. One reason of this is that, as England was never so completely feudalized as were some of the European continental states, the burden of feudalism was not so severely felt, and has led to less agitation for reform.
The land forfeited to the Conqueror was re-granted by him to be held by knight-service due to the king, not to the mesne lord as in European continental feudalism. In 1086 at the council of Salisbury all the landholders swore fealty to the crown. In the full vigour of feudalism the inhabitants of England were either free or not free. The free inhabitants held their lands either by free tenure or by a tenure which was originally that of a non-free inhabitant, but attached to land in the possession of a free man. Free tenure was either military tenure, called also tenure in chivalry
Chivalry
Chivalry is a term related to the medieval institution of knighthood which has an aristocratic military origin of individual training and service to others. Chivalry was also the term used to refer to a group of mounted men-at-arms as well as to martial valour...
, or socage
Socage
Socage was one of the feudal duties and hence land tenure forms in the feudal system. A farmer, for example, held the land in exchange for a clearly defined, fixed payment to be made at specified intervals to his feudal lord, who in turn had his own feudal obligations, to the farmer and to the Crown...
(including burgage
Burgage
Burgage is a medieval land term used in England and Scotland, well established by the 13th century. A burgage was a town rental property , owned by a king or lord. The property usually, and distinctly, consisted of a house on a long and narrow plot of land, with the narrow end facing the street...
and petit serjeanty
Serjeanty
Under the feudal system in late and high medieval England, tenure by serjeanty was a form of land-holding in return for some specified service, ranking between tenure by knight-service and tenure in socage...
), or frankalmoin
Frankalmoin
Frankalmoin or frankalmoigne was one of the feudal land tenures in feudal England. Its literal meaning is "free pity/mercy", from Norman French fraunch aumoyne, “free alms”, from Late Latin eleemosyna, from Greek ἐλεημοσύνη , "pity, alms", from ἐλεήμων "merciful", from ἔλεος , "pity"...
, by which ecclesiastical corporations generally held their land. The non-free inhabitants were called in the Domesday Book
Domesday Book
Domesday Book , now held at The National Archives, Kew, Richmond upon Thames in South West London, is the record of the great survey of much of England and parts of Wales completed in 1086...
servi, cotarii, or bordarii, and later nativi or villani, the last name being applied to both free men and serfs. All these were in a more or less dependent condition. The free tenures all exist at the present day, though, as will appear later, the military tenures have shrunk into the unimportant and exceptional tenure of grand serjeanty. The non-free tenures are to a certain extent represented by copyhold
Copyhold
At its origin in medieval England, copyhold tenure was tenure of land according to the custom of the manor, the "title deeds" being a copy of the record of the manorial court....
.
The most important difference between the military and socage tenures was the mode of descent. Whether or not a feudal benefice
Benefice
A benefice is a reward received in exchange for services rendered and as a retainer for future services. The term is now almost obsolete.-Church of England:...
was originally hereditary, it had certainly become so at the time of the Conquest, and it descended to the eldest son. This applied at once in England to land held by knight-service as far as regarded the capital fief. The descent of socage lands or lands other than the capital fief for some time followed the old pre-Conquest rule of descent. Thus in the so-called "Laws of Henry I
Henry I of England
Henry I was the fourth son of William I of England. He succeeded his elder brother William II as King of England in 1100 and defeated his eldest brother, Robert Curthose, to become Duke of Normandy in 1106...
" The lands other than the capital fief and some socage lands were divided among all the sons equally. But by the time of Henry de Bracton
Henry de Bracton
Henry of Bracton, also Henry de Bracton, also Henrici Bracton, or Henry Bratton also Henry Bretton was an English jurist....
the course of descent of lands held by knight-service had so far prevailed that, though it was a question of fact whether the land was partible or not, if there was no evidence either way descent to the eldest son was presumed. Relics of the old custom still remain in the case of gavelkind
Gavelkind
Gavelkind was a system of land tenure associated chiefly with the county of Kent, but found also in other parts of England. Its inheritance pattern bears resemblance to Salic patrimony and as such might testify in favour of a wider, probably ancient Germanic tradition.It was legally abolished in...
. The military tenant was subject to the feudal incidents, from which the tenant in socage was exempt. These additional fees and obligations were often oppressive. Alienation
Alienation (property law)
Alienation, in property law, is the capacity for a piece of property or a property right to be sold or otherwise transferred from one party to another. Although property is generally deemed to be alienable, it may be subject to restraints on alienation....
of lands by will, except in a few favoured districts, became impossible; alienation inter vivos was restrained in one direction in the interests of the heir, in another in the interests of the lord. At the time of Glanvill a tenant had a greater power of alienation over land which he had purchased than over land which he had inherited. But by the time of Bracton the heir had ceased to have any interest in either kind of land. The lords were more successful. It was enacted by Magna Carta
Magna Carta
Magna Carta is an English charter, originally issued in the year 1215 and reissued later in the 13th century in modified versions, which included the most direct challenges to the monarch's authority to date. The charter first passed into law in 1225...
that a free man should not give or sell so much of his land as to leave an amount insufficient to perform his services to his lord. In spite of this provision, the rights of the lords were continually diminished by subinfeudation
Subinfeudation
In English law, subinfeudation is the practice by which tenants, holding land under the king or other superior lord, carved out new and distinct tenures in their turn by sub-letting or alienating a part of their lands....
until the passing of the Statute of Quia Emptores. Alienation by a tenant-in-chief
Tenant-in-chief
In medieval and early modern European society the term tenant-in-chief, sometimes vassal-in-chief, denoted the nobles who held their lands as tenants directly from king or territorial prince to whom they did homage, as opposed to holding them from another nobleman or senior member of the clergy....
of the crown without licence was a ground of forfeiture until 1327, when a fine was substituted.
The influence of local custom upon the land law must have become weakened after the circuits of the judges of the King's Court were established by Henry II. Jurisdiction over litigation touching the freehold was taken away from the lord's courts in 1392.
The common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
as far as it dealt with real estate had in the main assumed its present aspect by the reign of Henry III
Henry III of England
Henry III was the son and successor of John as King of England, reigning for 56 years from 1216 until his death. His contemporaries knew him as Henry of Winchester. He was the first child king in England since the reign of Æthelred the Unready...
. The changes which have been made since that date have been chiefly due to the action of equity and legislation, the latter sometimes interpreted by the courts in a manner very different from the intention of parliament. The most important influence of equity has been exercised in mortgage and trusts in the doctrine of specific performance
Specific performance
Specific performance is an order of a court which requires a party to perform a specific act, usually what is stated in a contract. It is an alternative to award/ for awarding damages, and is classed as an equitable remedy commonly used in the form of injunctive relief concerning confidential...
of contracts concerning real estate, and in relief from forfeiture for breach
Breach of contract
Breach of contract is a legal cause of action in which a binding agreement or bargained-for exchange is not honored by one or more of the parties to the contract by non-performance or interference with the other party's performance....
of covenant.
Real estate legislation
The reign of Edward I is notable for three leading statutes, all passed in the interests of the superior lords. The 1279 the Statute of Mortmain was the first of a long series directed against the acquisition of land by religious and charitable corporations. In 1285 the statute De Donis ConditionalibusDe donis conditionalibus
De donis conditionalibus is the chapter of the English Statutes of Westminster which originated the law of entail.Strictly speaking, a form of entail was known before the Norman feudal law had been domesticated in England...
forbade the alienation of estates granted to a man and the heirs of his body, which before the statute usually became on the birth of an heir at once alienable, and so the lord lost his escheat
Escheat
Escheat is a common law doctrine which transfers the property of a person who dies without heirs to the crown or state. It serves to ensure that property is not left in limbo without recognised ownership...
. The statute Quia Emptores
Quia Emptores
Quia Emptores of 1290 was a statute passed by Edward I of England that prevented tenants from alienating their lands to others by subinfeudation, instead requiring all tenants wishing to alienate their land to do so by substitution...
preserved those rights of the lords which were up to that time subject to be defeated by subinfeudation, by enacting that in any alienation of lands the alienee should hold them of the same lord of the fee as the alienor. Since 1290 it has been impossible to create an estate in fee-simple to be held of a mesne lord, or to reserve a rent upon a grant of an estate in fee (unless in the form of a rent-charge), or to create a new manor. The statute, however, does not bind the crown. The practical effect of the statute was to make the transfer of land thenceforward more of a commercial and less of a feudal transaction. The writ of elegit was introduced by the Statute of Westminster II in 1285 as a creditor's remedy over real estate. It has, however, been considerably modified by subsequent legislation.
From 1290 to the reign of Henry VIII
Henry VIII of England
Henry VIII was King of England from 21 April 1509 until his death. He was Lord, and later King, of Ireland, as well as continuing the nominal claim by the English monarchs to the Kingdom of France...
, there is no statute of the first importance dealing with real estate. The reign of Henry VIII, like that of Edward I, is signalized by three acts, the effects of which continue to this day. The one which has had the most lasting influence in law is the Statute of Uses
Statute of Uses
The Statute of Uses was an Act of the Parliament of England that restricted the application of uses in English property law. The Statute was originally conceived by Henry VIII of England as a way to rectify his financial problems by simplifying the law of uses, which moved land outside the royal...
, intended to provide against secrecy of sales of land. As a necessary sequel, the Statute of Enrollments required all bargains and sales of land be duly enrolled. Bargain and sale
Bargain and sale deed
A bargain and sale deed is in United States real property law, a deed "conveying real property without covenants".This is a deed "for which the grantor implies to have or have had an interest in the property but offers no warranties of title to the grantee...
was a form of equitable transfer which had for some purposes superseded the common law feoffment. It applied only to estates of inheritance and not to terms of years. The unforeseen effect of the act of 1535, Enrolment of Bargains of Lands, etc. was to establish as the ordinary form of conveyance until 1841 the conveyance by lease and release. Uses having become legal estate by the Statute of Uses, and therefore no longer devisable, the Statute of Wills
Statute of Wills
The Statute of Wills was an Act of the Parliament of England. It made it possible, for the first time in English history, for landholders to determine who would inherit their land upon their death by permitting bequest by will...
(explained by the Wills Act of 1542) was passed to remedy this inconvenience. At least as late as 1911, it remained law as to wills made before 1838.
In the reign of Elizabeth the Fraudulent Conveyances Acts of 1571 and of 1584 avoided fraudulent conveyances as against all parties and voluntary conveyances as against subsequent purchasers for valuable consideration. Early in the reign of Charles II
Charles II of England
Charles II was monarch of the three kingdoms of England, Scotland, and Ireland.Charles II's father, King Charles I, was executed at Whitehall on 30 January 1649, at the climax of the English Civil War...
the Tenures Abolition Act 1660
Tenures Abolition Act 1660
The Tenures Abolition Act 1660 was an Act of Parliament of the Parliament of England passed in 1660. The long title of the Act was An act for taking away the Court of Wards and liveries, and tenures in capite, and by knights-service, and purveyance, and for settling a revenue upon his Majesty in...
turned most feudal tenures into tenure by free and common socage and abolished the feudal incidents. The Statute of Frauds
Statute of frauds
The statute of frauds refers to the requirement that certain kinds of contracts be memorialized in a signed writing with sufficient content to evidence the contract....
contained provisions that certain leases and assignments, and that all agreements and trusts relating to land, should be in writing. The land registries
Land registration
Land registration generally describes systems by which matters concerning ownership, possession or other rights in land can be recorded to provide evidence of title, facilitate transactions and to prevent unlawful disposal...
of Middlesex
Middlesex
Middlesex is one of the historic counties of England and the second smallest by area. The low-lying county contained the wealthy and politically independent City of London on its southern boundary and was dominated by it from a very early time...
and Yorkshire
Yorkshire
Yorkshire is a historic county of northern England and the largest in the United Kingdom. Because of its great size in comparison to other English counties, functions have been increasingly undertaken over time by its subdivisions, which have also been subject to periodic reform...
date from the reign of Anne. Devises (gifts by will) of land for charitable purposes were forbidden by the Charitable Uses Act of 1735. In the next reign the first general Inclosure Act
Inclosure Act
The Inclosure or Enclosure Acts were a series of United Kingdom Acts of Parliament which enclosed open fields and common land in the country. They removed previously existing rights of local people to carry out activities in these areas, such as cultivation, cutting hay, grazing animals or using...
, the Inclosure (Consolidation) Act 1801, was passed. In the reign of William IV
William IV of the United Kingdom
William IV was King of the United Kingdom of Great Britain and Ireland and of Hanover from 26 June 1830 until his death...
fines and recoveries were abolished and simpler modes of conveyance substituted, and the laws of inheritance and dower were amended.
In the reign of Victoria
Victoria of the United Kingdom
Victoria was the monarch of the United Kingdom of Great Britain and Ireland from 20 June 1837 until her death. From 1 May 1876, she used the additional title of Empress of India....
there was a vast mass of legislation dealing with real estate in almost every conceivable aspect. At the immediate beginning of the reign stands the Wills Act 1837
Wills Act 1837
The Wills Act 1837 is an Act of the Parliament of the United Kingdom that confirms the power of every adult to dispose of their real and personal property, whether they are the outright owner or a beneficiary under a trust, by will on their death...
. The transfer of real estate was simplified by the Real Property Act of 1845 and by the Conveyancing Acts of 1881 and 1882. Additional powers of dealing with settled estates were given by the Settled Estates Act 1856, later by the Settled Estates Act 1877, and the Settled Land Act 1882. Succession duty
Succession duty
Succession duty, in the English fiscal system, "a tax placed on the gratuitous acquisition of property which passes on the death of any person, by means of a transfer from one person to another person ." In order properly to understand the present state of the English law it is necessary to...
was levied for the first time on freeholds in 1853. The strictness of the Mortmain Act was relaxed in favour of gifts and sales to public institutions of various kinds, such as schools, parks and museums. The period of limitation was shortened for most purposes from twenty to twelve years by the Real Property Limitation Act 1874. Several acts were passed dealing with the enfranchisement and commutation of copyholds and the preservation of commons and open spaces. The Naturalization Act 1870 enabled aliens to hold and transfer land in England. The Felony Act 1870, abolished forfeiture of real estate on conviction for felony. The Agricultural Holdings Acts 1883 and 1900, and other acts, gave the tenant of a tenancy within the acts a general right to compensation for improvements, substituted a year's notice to quit for the six months' notice previously necessary, enlarged the tenant's right to fixtures, and limited the amount of distress. By the Intestate Estates Act 1884 the law of escheat was extended to incorporeal hereditaments and equitable estates. Among other subjects which have been dealt with by legislation in the 19th century may be mentioned land transfer, registration, mortgage, partition, excambion
Excambion
-Definition:Excambion : The exchange of land. The deed whereby this is effected is termed "Contract of Excambion".There is an implied real warranty in this contract, so that if one portion is evicted or taken away on a superior title, the...
, fixtures, taking of land in execution, declaration of title and apportionment.
The Law of Property Act 1925
Law of Property Act 1925
The Law of Property Act 1925 is a statute of the United Kingdom Parliament. It forms part of an interrelated programme of legisation introduced by Lord Chancellor Lord Birkenhead between 1922 and 1925. The programme was intended to modernise the English law of real property...
was meant to reduce the number of legal estates to two, and to make easier the transfer of interests in land.
The Land Registration Act 2002
Land Registration Act 2002
The Land Registration Act 2002 is an Act of the Parliament of the United Kingdom which repealed and replaced previous legislation governing land registration, in particular the Land Registration Act 1925, which governed an earlier, though similar, system...
replaced previous legislation governing land registration
Land registration
Land registration generally describes systems by which matters concerning ownership, possession or other rights in land can be recorded to provide evidence of title, facilitate transactions and to prevent unlawful disposal...
. , the Act, together with the Land Registration Rules, regulates the role and practice of HM Land Registry
HM Land Registry
Land Registry is a non-ministerial government department and executive agency of the Government of the United Kingdom. It was created in 1862 to register the ownership of land and property in England and Wales...
.