Land 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 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.

Contents

Feudal tenure

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.

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 America had no formal notion of land ownership. When Europeans 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 title. 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 du zones du terroir"[1] and in Egypt, it is called Wadaa al-yad.[2]
  • Allodial title, a system in which real property is owned absolutely free and clear of any superior landlord or sovereign. True allodial title is rare, with most property ownership in the common law world (Australia, Canada, Ireland, New Zealand, United Kingdom, United States) being in fee simple. 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 domain) by the government.
  • Feudal land tenure, a system of mutual obligations under which a royal or noble personage granted a fiefdom — 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 lord continued to have an interest. This pattern obtained from the level of high nobility as vassals of a monarch down to lesser nobility whose only vassals were their serfs.
  • Fee simple. Under common law, this is the most complete ownership interest one can have in real property, other than the rare Allodial title. 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 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.
  • Native title. 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.[3] 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 estate. 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 loan.
  • Fee tail. Under common law, this is hereditary, non-transferable ownership of real property. A similar concept, the legitime, exists in civil and Roman law; the legitime limits the extent to which one may disinherit an heir.
  • 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, 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.

Land tenure by country

Canada

England and Wales

For land ownership in England and Wales see Land tenure in England and History of English land law.

Ireland

  • Land & Conveyancing Law Reform Bill, 2006[4]

Scotland

Angola

  • Land tenure in Angola

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. 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.

See also

References

Further reading


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