Land tenure
Encyclopedia
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 French verb "tenir" means "to hold"; "tenant" is the present participle of "tenir"). The sovereign monarch, known as The Crown
, held land in its own right. All private owners are either its tenants or sub-tenants. The term "tenure" is used to signify the relationship between tenant and lord, not the relationship between tenant and land.
Over history, many different forms of land ownership, i.e., ways of owning land, have been established.
A landholder or landowner is a holder of the estate in land
with considerable rights of ownership or, simply put, an owner of land.
, the lords who received land directly from the Crown were called tenants-in-chief. They doled out portions of their land to lesser tenants in exchange for services, who in turn divided it among even lesser tenants. This process—that of granting subordinate tenancies—is known as subinfeudation
. In this way, all individuals except the monarch were said to hold the land "of" someone else.
Historically, it was usual for there to be reciprocal duties between lord and tenant. There were different kinds of tenure to fit various kinds of duties that a tenant might owe to a lord. For instance, a military tenure might be by knight-service
, requiring the tenant to supply the lord with a number of armed horsemen. The concept of tenure has since evolved into other forms, such as lease
s and estates
.
In addition, there are various forms of collective ownership, which typically take either the form of membership in a cooperative
, or shares in a corporation
, which owns the land (typically by fee simple, but possibly under other arrangements). There are also various hybrids: in many communist state
s, government ownership of most agricultural land has combined in various ways with tenure for farming collectives.
see Land tenure in England
and History of English land law
.
The concepts of landlord and tenant have been recycled to refer to the modern relationship of the parties to land which is held under a lease
. It has been pointed out by Professor F.H. Lawson in Introduction to the Laws of Property (1958), however, that the landlord-tenant relationship never really fitted in the feudal system and was rather an "alien commercial element".
The doctrine of tenure did not apply to personalty (personal property
). However, the relationship of bailment
in the case of chattels closely resembles the landlord-tenant relationship that can be created in land.
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...
systems, to the legal regime in which land is owned by an individual, who is said to "hold" the land (the French verb "tenir" means "to hold"; "tenant" is the present participle of "tenir"). The sovereign monarch, known as 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...
, held land in its own right. All private owners are either its tenants or sub-tenants. The term "tenure" is used to signify the relationship between tenant and lord, not the relationship between tenant and land.
Over history, many different forms of land ownership, i.e., ways of owning land, have been established.
A landholder or landowner is a holder of the estate in land
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....
with considerable rights of ownership or, simply put, an owner of land.
Feudal tenure
Historically in the system of 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...
, the lords who received land directly from the Crown were called tenants-in-chief. They doled out portions of their land to lesser tenants in exchange for services, who in turn divided it among even lesser tenants. This process—that of granting subordinate tenancies—is known as 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....
. In this way, all individuals except the monarch were said to hold the land "of" someone else.
Historically, it was usual for there to be reciprocal duties between lord and tenant. There were different kinds of tenure to fit various kinds of duties that a tenant might owe to a lord. For instance, a military tenure might be 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....
, requiring the tenant to supply the lord with a number of armed horsemen. The concept of tenure has since evolved into other forms, such as lease
Lease
A lease is a contractual arrangement calling for the lessee to pay the lessor for use of an asset. A rental agreement is a lease in which the asset is tangible property...
s and estates
Estate (house)
An estate comprises the houses and outbuildings and supporting farmland and woods that surround the gardens and grounds of a very large property, such as a country house or mansion. It is the modern term for a manor, but lacks the latter's now abolished jurisdictional authority...
.
Modes of ownership and tenure
There are a great variety of modes of land ownership and tenure:- Traditional land tenure. For example, most of the indigenous nations or tribes of North AmericaNorth AmericaNorth America is a continent wholly within the Northern Hemisphere and almost wholly within the Western Hemisphere. It is also considered a northern subcontinent of the Americas...
had no formal notion of land ownership. When EuropeEuropeEurope is, by convention, one of the world's seven continents. Comprising the westernmost peninsula of Eurasia, Europe is generally 'divided' from Asia to its east by the watershed divides of the Ural and Caucasus Mountains, the Ural River, the Caspian and Black Seas, and the waterways connecting...
ans first came to North America, they sometimes simply disregarded traditional land tenure and simply seized land; more often, they accommodated traditional land tenure by recognizing it as aboriginal titleAboriginal titleAboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty under settler colonialism...
. This theory formed the basis for (often unequal and often abused) treaties with indigenous peoples. - Ownership of land by swearing to make productive use of it. In several developing countries as Egypt, Senegal, ... this method is still presently in use. In Senegal, it is mentioned as "mise en valeur des zones du terroir" and in Egypt, it is called Wadaa al-yad.
- Allodial titleAllodial titleAllodial title constitutes ownership of real property that is independent of any superior landlord, but it should not be confused with anarchy as the owner of allodial land is not independent of his sovereign...
, a system in which real propertyReal propertyIn English Common Law, real property, real estate, realty, or immovable property is any subset of land that has been legally defined and the improvements to it made by human efforts: any buildings, machinery, wells, dams, ponds, mines, canals, roads, various property rights, and so forth...
is owned absolutely free and clear of any superior landlord or sovereign. True allodial title is rare, with most property ownership in the common lawCommon lawCommon law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
world (AustraliaAustraliaAustralia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
, CanadaCanadaCanada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
, IrelandIrelandIreland is an island to the northwest of continental Europe. It is the third-largest island in Europe and the twentieth-largest island on Earth...
, New ZealandNew ZealandNew Zealand is an island country in the south-western Pacific Ocean comprising two main landmasses and numerous smaller islands. The country is situated some east of Australia across the Tasman Sea, and roughly south of the Pacific island nations of New Caledonia, Fiji, and Tonga...
, United KingdomUnited KingdomThe United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
, United StatesUnited StatesThe United States of America is a federal constitutional republic comprising fifty states and a federal district...
) being in fee simpleFee simpleIn English law, a fee simple is an estate in land, a form of freehold ownership. It is the most common way that real estate is owned in common law countries, and is ordinarily the most complete ownership interest that can be had in real property short of allodial title, which is often reserved...
. Allodial title is alienable, in that it may be conveyed, devised, gifted, or mortgaged by the owner, and may also be distressed and restrained for collection of taxes or private debts, or condemned (eminent domainEminent domainEminent domain , compulsory purchase , resumption/compulsory acquisition , or expropriation is an action of the state to seize a citizen's private property, expropriate property, or seize a citizen's rights in property with due monetary compensation, but without the owner's consent...
) by the government. - Feudal land tenureFeudal land tenureUnder the English feudal system several different forms of land tenure existed, each effectively a contract with differing rights and duties attached thereto. Such tenures could be either free-hold, signifying that they were hereditable or perpetual, or non-free where the tenancy terminated on the...
, a system of mutual obligations under which a royalMonarchyA monarchy is a form of government in which the office of head of state is usually held until death or abdication and is often hereditary and includes a royal house. In some cases, the monarch is elected...
or nobleNobilityNobility 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...
personage granted a fiefdomFiefdomA fee was the central element of feudalism and consisted of heritable lands granted under one of several varieties of feudal tenure by an overlord to a vassal who held it in fealty in return for a form of feudal allegiance and service, usually given by the...
— some degree of interest in the use or revenues of a given parcel of land — in exchange for a claim on services such as military service or simply maintenance of the land in which the lordLordLord is a title with various meanings. It can denote a prince or a feudal superior . The title today is mostly used in connection with the peerage of the United Kingdom or its predecessor countries, although some users of the title do not themselves hold peerages, and use it 'by courtesy'...
continued to have an interest. This pattern obtained from the level of high nobility as vassals of a monarchMonarchA monarch is the person who heads a monarchy. This is a form of government in which a state or polity is ruled or controlled by an individual who typically inherits the throne by birth and occasionally rules for life or until abdication...
down to lesser nobility whose only vassals were their serfSERFA spin exchange relaxation-free magnetometer is a type of magnetometer developed at Princeton University in the early 2000s. SERF magnetometers measure magnetic fields by using lasers to detect the interaction between alkali metal atoms in a vapor and the magnetic field.The name for the technique...
s. - Fee simpleFee simpleIn English law, a fee simple is an estate in land, a form of freehold ownership. It is the most common way that real estate is owned in common law countries, and is ordinarily the most complete ownership interest that can be had in real property short of allodial title, which is often reserved...
. Under common lawCommon lawCommon law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, this is the most complete ownership interest one can have in real propertyReal propertyIn English Common Law, real property, real estate, realty, or immovable property is any subset of land that has been legally defined and the improvements to it made by human efforts: any buildings, machinery, wells, dams, ponds, mines, canals, roads, various property rights, and so forth...
, other than the rare Allodial titleAllodial titleAllodial title constitutes ownership of real property that is independent of any superior landlord, but it should not be confused with anarchy as the owner of allodial land is not independent of his sovereign...
. The holder can typically freely sell or otherwise transfer that interest or use it to secure a mortgage loan. This picture of "complete ownership" is, of course, complicated by the obligation in most places to pay a property taxProperty taxA property tax is an ad valorem levy on the value of property that the owner is required to pay. The tax is levied by the governing authority of the jurisdiction in which the property is located; it may be paid to a national government, a federated state or a municipality...
and by the fact that if the land is mortgaged, there will be a claim on it in the form of a lienLienIn law, a lien is a form of security interest granted over an item of property to secure the payment of a debt or performance of some other obligation...
. In modern societies, this is the most common form of land ownership. - Native titleNative titleNative title is the Australian version of the common law doctrine of aboriginal title.Native title is "the recognition by Australian law that some Indigenous people have rights and interests to their land that come from their traditional laws and customs"...
. In Australia, native title is a common law concept that recognizes that some indigenous people have certain land rights that derive from their traditional laws and customs. Native title can co-exist with non-indigenous proprietary rights and in some cases different indigenous groups can exercise their native title over the same land. - Life estateLife estateA life estate is a concept used in common law and statutory law to designate the ownership of land for the duration of a person's life. In legal terms it is an estate in real property that ends at death when there is a "reversion" to the original owner...
. Under common lawCommon lawCommon law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, this is an interest in real property that ends at death. The holder has the use of the land for life, but typically no ability to transfer that interest or to use it to secure a mortgage loan. - Fee tailFee tailAt common law, fee tail or entail is an estate of inheritance in real property which cannot be sold, devised by will, or otherwise alienated by the owner, but which passes by operation of law to the owner's heirs upon his death...
. Under common law, this is hereditary, non-transferable ownership of real property. A similar concept, the legitime, exists in civilCivil law (legal system)Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
and Roman lawRoman lawRoman 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...
; the legitime limits the extent to which one may disinherit an heir. - Leasehold or rentalRentingRenting is an agreement where a payment is made for the temporary use of a good, service or property owned by another. A gross lease is when the tenant pays a flat rental amount and the landlord pays for all property charges regularly incurred by the ownership from landowners...
. Under both common law and civil law, land may be leased or rented by its owner to another party; a wide range of arrangements are possible, ranging from very short terms to the 99-year leases common in the United KingdomUnited KingdomThe United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
, and allowing various degrees of freedom in the use of the property. - Rights to use a commonCommon landCommon 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...
, which may include such rights as the use of a road or the right to graze one's animals on commonly owned land. - SharecroppingSharecroppingSharecropping is a system of agriculture in which a landowner allows a tenant to use the land in return for a share of the crop produced on the land . This should not be confused with a crop fixed rent contract, in which a landowner allows a tenant to use the land in return for a fixed amount of...
, under which one has use of agricultural land owned by another person in exchange for a share of the resulting crop or livestock. - EasementEasementAn easement is a certain right to use the real property of another without possessing it.Easements are helpful for providing pathways across two or more pieces of property or allowing an individual to fish in a privately owned pond...
s, which allow one to make certain specific uses of land that is owned by someone else. The most classic easement is right-of-way, but it could also include (for example) the right to run an electrical power line across someone else's land.
In addition, there are various forms of collective ownership, which typically take either the form of membership in a cooperative
Cooperative
A cooperative is a business organization owned and operated by a group of individuals for their mutual benefit...
, or shares in a corporation
Corporation
A corporation is created under the laws of a state as a separate legal entity that has privileges and liabilities that are distinct from those of its members. There are many different forms of corporations, most of which are used to conduct business. Early corporations were established by charter...
, which owns the land (typically by fee simple, but possibly under other arrangements). There are also various hybrids: in many communist state
Communist state
A communist state is a state with a form of government characterized by single-party rule or dominant-party rule of a communist party and a professed allegiance to a Leninist or Marxist-Leninist communist ideology as the guiding principle of the state...
s, government ownership of most agricultural land has combined in various ways with tenure for farming collectives.
England and Wales
For land ownership in England and WalesEngland and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
see 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...
and History of English land law
History of English land law
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...
.
Importance of tenure today
Although the doctrine of tenure has little importance today, its influence still lingers in some areas.The concepts of landlord and tenant have been recycled to refer to the modern relationship of the parties to land which is held under a lease
Lease
A lease is a contractual arrangement calling for the lessee to pay the lessor for use of an asset. A rental agreement is a lease in which the asset is tangible property...
. It has been pointed out by Professor F.H. Lawson in Introduction to the Laws of Property (1958), however, that the landlord-tenant relationship never really fitted in the feudal system and was rather an "alien commercial element".
The doctrine of tenure did not apply to personalty (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...
). However, the relationship of bailment
Bailment
Bailment describes a legal relationship in common law where physical possession of personal property, or chattel, is transferred from one person to another person who subsequently has possession of the property...
in the case of chattels closely resembles the landlord-tenant relationship that can be created in land.
See also
- Alienated landAlienated landAlienated land is that which has been acquired from customary landowners by Government, either for its own use or private development requiring a mortgage or other forms of guarantees. The term refers historically to the appropriation of customary land by European colonial powers. Land was...
- Allodial
- Eminent domainEminent domainEminent domain , compulsory purchase , resumption/compulsory acquisition , or expropriation is an action of the state to seize a citizen's private property, expropriate property, or seize a citizen's rights in property with due monetary compensation, but without the owner's consent...
- FeudalismFeudalismFeudalism 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...
- FiefdomFiefdomA fee was the central element of feudalism and consisted of heritable lands granted under one of several varieties of feudal tenure by an overlord to a vassal who held it in fealty in return for a form of feudal allegiance and service, usually given by the...
- Homestead principleHomestead principleThe homestead principle in law is the concept that one can gain ownership of a natural thing that currently has no owner by using it or building something out of it...
- Landed gentryLanded gentryLanded gentry is a traditional British social class, consisting of land owners who could live entirely off rental income. Often they worked only in an administrative capacity looking after the management of their own lands....
- Landed nobilityLanded nobilityLanded nobility is a category of nobility in various countries over the history, for which landownership was part of their noble privileges. Their character depends on the country.*Landed gentry is the landed nobility in the United Kingdom and Ireland....
- Landed propertyLanded propertyLanded property or landed estates is a real estate term that usually refers to a property that generates income for the owner without the owner having to do the actual work of the estate. In Europe, agrarian landed property typically consisted of a manor, several tenant farms, and some privileged...
- Land reformLand reform[Image:Jakarta farmers protest23.jpg|300px|thumb|right|Farmers protesting for Land Reform in Indonesia]Land reform involves the changing of laws, regulations or customs regarding land ownership. Land reform may consist of a government-initiated or government-backed property redistribution,...
- Land trustLand trustThere are two distinct definitions of a land trust:* a private, nonprofit organization that, as all or part of its mission, actively works to conserve land by undertaking or assisting in land or conservation easement acquisition, or by its stewardship of such land or easements; or* an agreement...
- ManorialismManorialismManorialism, 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...
- PrecariaPrecariaA precaria is a form of land tenure in which a contract grants the right to use ecclesiastical property for a specific amount of time, for the duration of the grantee's life, offered for services rendered to the church. In feudalism the use of church lands to support warriors contributed to the...
- Quia EmptoresQuia EmptoresQuia 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...
- Rights and Resources InitiativeRights and Resources InitiativeThe Rights and Resources Initiative is a non-governmental organization working to encourage forest tenure and policy reforms and the transformation of the forest economy so that business reflects local development agendas and supports local livelihoods...
- SquattingSquattingSquatting consists of occupying an abandoned or unoccupied space or building, usually residential, that the squatter does not own, rent or otherwise have permission to use....
- Title (property)Title (property)Title is a legal term for a bundle of rights in a piece of property in which a party may own either a legal interest or an equitable interest. The rights in the bundle may be separated and held by different parties. It may also refer to a formal document that serves as evidence of ownership...
- History of English land lawHistory of English land lawThe 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...
Further reading
- John BakerJohn Baker (legal historian)Sir John Hamilton Baker, QC, FBA, FRHistS, FBS is an English legal historian. He has been the Downing Professor of the Laws of England at the University of Cambridge since 1988.-Biography:...
, An Introduction to English Legal History (3rd edition) 1990 Butterworths. ISBN 0-406-53101-3