real property intro tenure and doctrine of estates unit # 7

Planning & Property Law

Doctrines of Tenure & Estates

Unit # 4

What is Real Property

• Land

• Soil

• Plants rooted in the ground

• Buildings of a permanent nature

• Fixtures (chattels incorporated into the land)

Real Property Doctrines

• Doctrine of Tenures

• Doctrine of Estates

• Land tenure is the name given, particularly in common law systems, to the legal regime in which land is owned by an individual

• this doctrine answers the question, “On what terms is the land held?”

Doctrine of Tenures

• William the Conqueror

• England, 1066

• Divide up England to satisfy his supporters

• Gave land to hold in return for services

• Their tenure (tenir – to hold) was labelled by the type of service

• Called a feudal service

• 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--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 leases and estates.

The Feudal Pyramid

king

Tenant in chief

Mesnelords

Mesnelords

Mesnelords

MesneLords

Serfs, peasants

Tenant in chief

Tenant in chief

Tenant in chief

Tenant in chief

Tenure

• The dividing up covered all of England

• The tenure system = the feudal system

• 1290 Statute Quia Emptores passed

• STOPPED subinfeudation

• Landholders had to sell out their land, could not just create a new subinfeudation

land ownership and tenure

• Life Estates – Under common law, 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.

• Fee Tail - Under common law, this is hereditary, non-transferable ownership of real property. A similar concept, the legitime, exists in Civil (Roman) Law; the legitime limits the extent to which one may disinherit an heir.

• Fee Simple – Under Common law, this is the most complete ownership interest one can have in real property. The holder can typically freely sell or otherwise transfer that interest or use it to secure a mortgage. This picture of "complete ownership" is, of course, complicated by the obligation in most places to pay a property tax and by the fact that if the land is mortgaged, there will be a claim on it in the form of a lien. In modern societies, this is the most common form of land ownership.

• Leasehold or rental -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 Kingdom, and allowing various degrees of freedom in the use of the property.

• Rights to use a common area, which may include such rights as the use of a road or the right to graze one's animals on commonly owned land.

• Sharecropping - under which one has use of agricultural land owned by another person in exchange for a share of the resulting crop or livestock.

• Easements - 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, 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 states government ownership of most agricultural land has combined in various ways with tenure for farming collectives.

End of Feudal system

king

Tenant in chief

Sold to GMesnelords Sold to Y Died without heirs

Serfs, peasants

Tenant in chief

Tenant in chief

Tenant in chief

Tenant in chief

End of Feudal System

• Escheat propter defectum sanguinis

• Upon death of landholder who had no one to inherit, the land, under escheat, would revert to the next level lord

End of Feudal system

king

Tenant in chief

Sold to GMesnelords Sold to Y

Died without heirs –went to next level Lord

Tenant in chief

Tenant in chief

Tenant in chief

Tenant in chief

End of Feudal System

• Now nearly every landholder owns their land directly from the Crown

• Tenants in fee simple

Consequence of Tenure

• Crown owns the land

• We own from the Crown

• If you die intestate, with no heir capable of inheriting, the land goes back to the Crown

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.

• The doctrine of tenure did not apply to personal property. However, the relationship of bailment in the case of chattels closely resembles the landlord-tenant relationship that can be created in land.

Mabo v Queensland (No 2)(commonly known as Mabo)

• A landmark Australian court case which was decided by the High Court in 1992. The effective result of the judgment was to make irrelevant the declaration of ‘terra nullius, or "land belonging to no-one" which had been taken to occur from the commencement of Colonization and to recognize a form of native title.

• CONDUCT IN CLASS ANALYSIS OF CASE

• CASE SHOULD HAVE BEEN READ AND PREPARED

Doctrine of Estates

• This doctrine answers the question, “For how long is the land held?”

Doctrine of Estates

• 4 dimensional concept

– Length

– Breadth

– Vertical Dimension (height)

– Time

Landholding

• Accursius’ Maxim:

Cuius est solem, eius est usque ab caelos usque ad infernos

Accursius’ Maxim

• He who has the soil, also has to the vaults of heaven and to the roof of Hell.

Below your land?

• Mineral Rights – sometimes

• What about interfering with your land below?

Austin v Rescon Construction

Above your land?

• An exception for air travel, unless unreasonable

Landholding by Time

• Fee Simple Absolute – perpetual in the eyes of the law

• Is the backdrop for all lesser landholding

• All other estates are carved out of it

Time limited landholding

Life estates

Life estate holder holds during their lifetime

If sold, buyer only holds while vendor lives

Life estate holder can’t leave it to anyone by Will

Can’t destroy it, since it belongs to remainderman after you die – Doctrine of Waste

Time Limited Landholding

Remainder in fee simple

After life estate expires

Exists concurrently with the life estate

Life estate is vested in possession

Remainderman cannot enter or live on the land during the life estate

Remainderman can enforce Doctrine of Waste

Time and Landholding

Remainder in fee simple

Remainderman has a present right to FUTURE enjoyment of the land

Can be sold, is more valuable than a life estate

Is VESTED IN INTEREST, but not yet in POSSESSION

• Stuartburn (Rural Municipality) v. Kiansky2001 MBQB 94

• PREPARED CASE FOR DISCUSSION

Stuartburn (Rural Municipality) v. Kiansky2001 MBQB 94

• Kiansky was the reeve

• He sold his home and moved

• Required to be the owner of freehold land to be eligible for holding office

• His still living grandmother had a life estate in land in the municipality and Kiansky had the remainder interest in that land

Stuartburn (Rural Municipality) v. Kiansky2001 MBQB 94

”What then is a freehold estate?

Freehold is a measure of the nature and degree of a person's interest in land. It includes a life interest and a fee simple. Both are for an indeterminate period. The life interest will expire on the death of the owner (or tenant as it is often termed).”

Stuartburn (Rural Municipality) v. Kiansky2001 MBQB 94

His remainder interest constituted a right to a freehold interest in fee simple.

Kiansky had a vested interest in the property.

Kiansky could run for office.

Contingent Remainders

A remainder in fee simple can be subject to some pre-conditions

‘Remainderman’ can’t get the land until the condition is met

This would create a contingent estate (not a vested in interest estate)

No Remainder Specified?

• If a life estate is carved out of the fee simple and given but no remainder specified; then at the end of the life estate, a REVERSION IN FEE SIMPLE takes place

• Reverts to the initial holder of the fee simple, and if dead, it forms part of the estate and is dealt with by laws of succession

Doctrine of worthier title

• In Common Law, the doctrine of worthier titlewas a legal doctrine that preferred taking title to real estate by descent over taking title by devise or by purchase. It essentially provides that a remainder cannot be created in the grantor's heirs, at least not by those words.

• The rule provided that where a testator undertook to convey an heir the same estate in land that the heir would take under the laws of inheritance, the heir would be adjudged to have taken title to the land by inheritance rather than by the conveyance, because descent through the bloodline was held to be "worthier" than a conveyance through a legal instrument.

Rule in Shelley’s Case

• The doctrine of worthier title, like the Rule in Shelley’s Case, had its origin in attempts by royal courts to avoid various devices contrived by lawyers during the era of feudalism to retain lands in their families while avoiding feudal duties, and to secure its free alienability.

• The creation of family settlements designed to preserve land within the family, transfer it without feudal duties due to the lords of the fee upon transfer at death, and preserve it from claims of creditors, occupied the ingenuity of many common lawyers during the late Middle Ages. So did efforts to undo the restrictions placed by ancestors once they became inconvenient.

• The Doctrine of Worthier Title can be avoided by naming specific people or classes of people – e.g. "my children" – instead of using the phrase "my heirs". As such, the Doctrine of Worthier Title seldom comes into play. The doctrine has also been abolished, either by statute or by judicial decisions, in many common law jurisdictions. In some jurisdictions, the rule survives, but only as a presumption or a rule of construction, that can be rebutted by evidence that the grantor meant otherwise.

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