Land tenure
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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. The term "tenure" is used to signify the relationship between tenant and lord, not the relationship between tenant and land.
Historically in the system of feudalism, 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, 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 require the tenant to supply the lord with a number of armed knights. The concept of tenure has since evolved into other forms, such as leases and estates.
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Land tenure in England
Even 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. Over the next dozen years, he granted land to his lords and to the dispossessed Englishmen, or affirmed their existing land holdings, in exchange for fealty and promises of military and other services. At the time of the Domesday Book, all land in England was held by someone, and from that time there has been no allodial land in England. In order to legitimise the notion of the Crown's paramount lordship, a legal fiction - that all land titles were held by the King's subjects as a result of a royal grant - was adopted.
Most of these tenants-in-chief had considerable land holdings and proceeded to grant parts of their land to their subordinates. This constant process of granting new tenures was known as subinfeudation. It created a complicated pyramid of feudal relationships. At the bottom of the feudal pyramid were the tenants who lived on and worked the land (called the tenants in demesne). In the middle were the lords who had no direct relationship with the King, or with the land in question - referred to as mesne lords.
Land was granted in return for various "services" and "incidents". A service was an obligation on the part of the tenant owed to the landlord. The most important were agricultural service (socage tenure) and military service (knight tenure). Other examples include spiritual service (frankalmoigne tenure) and personal/official service (serjeanty tenure).
Incidents, on the other hand, were rights conferred on the lord over the tenant's land or the tenant's person that arose in certain circumstances, most commonly on the death of the tenant. An important incident was that of escheat, whereby the land of the tenant by knight service would escheat to the Crown in the event either of there being no heirs, or the knight's being convicted of a felony.
Spatial fragmentation of proprietary interests
The concept of land tenure has been described as a "spatial fragmentation of proprietary interests in land". No one person could claim absolute ownership of a parcel of land, except the Crown. Thus the modern concept of "ownership" is not helpful in explaining the complexity of the distribution of rights. In relation to a particular piece of land, a number of people had rights: first, the tenant in demesne with possessory rights; second the mesne lord to whom the tenant owed services; third, a tenant in chief to whom the mesne lord owed services; and finally the Crown who received services directly from the tenant in chief.
Decline of land tenure
The feudal system in England gradually became more and more complex until eventually the process became cumbrous and services difficult to enforce. As a result, the statute of Quia Emptores was passed in 1290 to replace subinfeudation with substitution, so the subordinate tenant transferred their tenure rather than creating a new subordinate tenure. As tenancies came to an end, the number of layers in the feudal pyramid was reduced. In 1660 the Tenures Abolition Act abolished knight service, converting all free tenures to socage tenure.
Quia Emptores and its equivalents do not apply to leases and life estates. In essence, lease of land to a tenant is a form of subinfeudation (unless the lease is granted by the Crown).
Importance of tenure today
Although the doctrine of tenure has little import 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. 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.
References
- J. H. Baker. An Introduction to English Legal History (3rd edition) 1990 Butterworths. ISBN 0-406-53101-3