Much of the historical origins of English land holdings are obsolete, although there are still remnants in the conceptual basis in the Canadian Common law of property. In Canada, land owners are not true owners, but tenants in fee simple of the Crown.
K. & S. Gray, Elements of Land Law. (2005) p.329 – Tenure and Estates EXPLAINED
English land law developed over 8 centuries into a logical and highly ordered system.
The Doctrine of Tenure (How land was held – essentially obsolete)
Begins in 1066 with the Norman evasion of England. King considers himself to be the owner of all land in England.
Crown granted land to subject in exchange for the continued fulfillment of certain conditions.
All occupiers of land were regarded as ‘tenants’ who owed service to the King or immediate overlord – created feudal pyramid with King at the apex.
The name of each tenure indicated the precise terms on which the land was held and were divided into ‘free’ and ‘unfree’.
Kinds of Services Provided by Free Tenure:
Seisin – common labourer had deemed possession of the land occupied, was little more than a slave, but was increasingly protected.
‘Knight’s Service’ & ‘Grand Sargeanty’ later became ‘tenure in chivalry’ – provision of armed horsemen or bearing of high office.
Spiritual tenures – devine service
Tenures in socage – rendered agricultural service
Created a feudal pyramid with tenants in Demesne forming the base, mesne lords in the middle, tenants in chief followed by the King.
Subinfeudation allowed the creation of infinitely more feuds created a logn and cumbersome feudal ladder.
Changed to allow transfer of land and exchange of place on the feudal ladder w/out creating more rungs.
Statute Quia Emptores 1290
Prohibits alienation by subinfeudation and only the Crown can create new Tenures
This act still regulate every land transfer in fee simple in the UK to this day. Presumption is that all land is held as tenants in chief directly of the Crown and resulting in the flattening of the feudal pyramid.
Tenures Abolition Act 1660
Almost all Tenures were transferred into free and common socage or freehold tenure.
For practical purposes the doctrine of Tenures is now obsolete – tenants of land in fee simple is tantamount to absolute ownership.
The Doctrine of Estates(defines duration of land grant, fundamentally important today in classifying land interests)
Created to solve the conundrum of what the individual tenant could say he “owned”.
It is an abstract entity interposed b/w tenant and land – the tenant owns an “estate” in the land, but not the land itself.
Each estate different from the others in a temporal sense.
It merely demarcated the temporal extent of the grant of land to the tenant, but was functionally “ownership in land”.
Modern owners do not own land, but an estate in the land, which confers rights and privileges.
Estates are a temporal slice of the ownership bundle.
No man can grant an ‘estate’ greater than that which he owns. “Neoa dat quod non habet)
K. & S. Gray, Elements of Land Law. (2005) p.333 – FREEHOLD ESTATES EXPLAINED
Three types of FREEHOLD Estates: Fee Simple, fee tail, and life estate. (distinction b/w each is based on time)
Walsingham: “the land itself is one thing and the estate in the land is another, for an estate in the land is time in the land, and there are diversities of estates, which are no more than diversities in time”.
Fee Simple (Primary Estate in land; amplest estate a tenant can have over land)
Tenancy without end, the largest possible bundle
Still a tenant in chief of the Crown, but in perpetuity – tantamount to absolute ownership.
Can be transferred indefinitely inter vivos or on death. Each new owner steps into the shoes of the past owner. Aka ‘Freeholder’
Modern legislation restricts use and enjoyment (for environmental and planning purposes), but relatively few other limits.
Life Estates (measured by the lifetime of a person(s) – definite period of uncertain duration) (p. 334, R. Scane)
Not freeholds of inheritance – interest of tenant cannot be passed to heirs.
“Conventional life Estates may be classified by the identity of the measuring life:
Life estate pur sa vie – for as long as the tenant lives
Life estate pur autre vie – for as long as someone else’s life; also created when holder of life estate pur sa vie conveys his interest to another. Example that you cannot give more than you have.
Life Estate pur autre vie can have unused time if the tenant dies before the measuring life. Theoretically it should not be transferable, but
Ontario law allows it to be disposed by will; and
Theory grants remainder of estate to “general occupant” who is first to occupy after tenant’s death.
What happens to the Estate at the end of the life? Does it reverts to the grantor (fee simple holder?), who may himself be dead…to then what? Devise to someone else or according to the will of the deceased grantor?
Fee Tail (Can only be created in PEI, not on Exam – An estate which descends by inheritance only)
Holder is not free to dispose of estate to whoever she wishes, but may only pass to direct lineal heirs
Created for aristocracy to ensure their estates remained concentrated in the family.
Could last forever, but likely to end for lack of heirs at which point it went to the holder of the reversion.
Can be limited by “fee simple male” etc.
Holders of entailed land were limited in what they could do and fee tail runs counter to Cml principle that land is alienable.
Ziff, Warm Reception in a Cold Climate. (2005) p.337 – Why English Property law was received in Canada
Reception of most English Property laws were accepted as suitable to the circumstances, physical, economic and social Canadian experience.
Two Reasons English Property law was accepted in Canada:
Convenient, pointless to recreate the wheel, and absence of adoption would create uncertainty.
There was nothing in the English law that couldn’t be adopted to Canada
