The Concept of Ownership of Land Under The English Common Law

 

ASSIGNMENT: The concept of ownership of land has never been applied in the English Land Law rather enjoyment of rights and interest in land has always been based on estate holding. Discuss succinctly

Ownership as a concept ordinarily involves all those rights which are between an owner of a demised property and the subject matter itself. It therefore refers to the right of exclusive use and enjoyment of the property. 

In Fagunwa v Adabi, ownership is defined as consisting the totality of or bundle of right of the owner over and above every other person on a thing. It connotes a complete and total right over property. The property begins and ends with the owner. 

In the context of land, land ownership is the maximum or absolute right or interest that exists in land. The concept of ownership (of land) has been aptly explained by noted Nigerian jurist, Prof. Nwabueze in the following terms:

Ownership is the most comprehensive and complete relation that can exist in respect of anything. It implies the fullest amplitude of rights of enjoyment, management and disposal over property. To put it the other way round, it implies that the owner’s title to these rights is superior and paramount over any other rights that may exist in land in favour of other persons, in negative language his right to the enjoyment, management and disposal of the thing must not be dependent upon, or subordinate to that of any other person.” But it should be noted however, that in the context of English law of real property doubt is cast on the appropriateness or correctness of the use of the term “maximum” and “absolute” in describing the nature of right of an owner more appropriately called the “acquirer” or “purchaser” of a real property.

 Actually, a purchaser in the context of English law of real property does not really purchase land or acquire real property, he merely purchases or acquires an interest in land or an estate in land the highest of which in Land Law terminology is technically referred to as “an estate in fee simple”.

Thus, from the aforementioned, it appears that the ownership of land under English common law of real property seems to be a mere semantic conundrum since a purchaser of land subject to the non-recognition of the concept of ownership of land may for all practical purposes deal with “his land in the manner he deems fit”. But the concept is not overly whittled down as there are noted limitations besetting an owner of land under English law.

In practice land is normally described as owned by its various proprietors, however, English land law still retains its original basis in Crown ownership. It is expressed in a feudal law summed up in a maxim, nulle terre sans seigneur, meaning "no land without a lord‟. A small part being in the Crown's own occupation, the rest is occupied by tenants holding either directly or indirectly from the Crown.

 The idea of land and its relation to man is recognized only in the nature of being estates, interests and entitlements and this led to the introduction and recognition of estates in land, and not the ownership in any sense of the word. The devise of estates in land by the English law is articulated by the jural relationship between the land holder (tenant) and his land who under the doctrine of subinfeudation is indeed a tenant to the original and primary land owners which is the King or Queen in whom all the ownership of the land is vested. Thus, the basis of English land law is that all land is England is owned by the Crown.

Under English law, the relation of the tenant to the land is directed to possession (Seisin) rather than ownership. In relation to the concept of seisin under English law, all titles in land are ultimately based upon possession in the sense that the title of the man seised prevails against all who can show no better right to Seisin. As Burns puts it, “Seisin is a root of title, and it may be said without undue exaggeration that in so far as land is concerned there is in England no law of ownership, but only a law of possession. 

The English law recognized that different interest and rights of persons exists in land, and as such, it is based on the doctrine of estate and tenure. According to Hayton, there are two basic doctrines of the English law of real property namely:

 (i) the doctrine of tenure meaning that all land is held of the Crown, either directly or indirectly, on one or other of the various tenures; and

 (ii) the doctrine of estate, which denotes that a subject cannot own land, but can merely own an estate in it, authorizing him to hold it for some period of time. The tenure answers the question "how is it held?" while the estate answers the question "for how long?"

The ownership of land under the common law was based on a complex feudal structure which was imposed after the Norman Conquest of 1066. The King regarded the whole of England as his by conquest. In rewarding his followers and the English people who submitted to him, he granted them certain land to be held of him as overlord. These lands were granted not by out-and out transfer, but were to be held from the Crown upon certain conditions. Every grantee might in turn grant land to another person to hold of them in return for services, and that other might do the same. Therefore, the feudal system had a pyramidal structure from the top downwards with the King at the top and people who actually occupying the land at the base.

In the middle of the structure were people who both rendered and received services, much in the same way as a modern leasehold tenant who has sublet the property. The control of the land followed the same hierarchy with the King being the lord paramount looking only to those who held directly from him called tenants in chief. The tenants in chief in return controlled their immediate tenants, and so on down the ladder if there were further steps in the scale to the actual occupier of the land called “tenants in demesne”. Thus, The feudal system of landholding was introduced, whereby land was held from a lord for a period of time in return for certain services and other charges or ‘incidents of tenure’.

The word tenure therefore signifies a right and mode of holding land. It means more than mere holding of land, but also holding of land from a superior lord, and furthermore that the land is held in return for certain services by the tenant to his lord. Thus, as Hardwood submits, the principle that a man does not own land but merely holds it as tenant either directly or indirectly of the crown is the doctrine of Tenure.

 The other aspect of the English land law is the doctrine of Estates. An estate is therefore an interest in land which will continue for a particular duration. It concedes to the individual, the right of possession which he holds either directly or indirectly of the crown as a tenant. On the basis of duration, estates is classified into estate of freehold (when the duration is uncertain) and estate less than freehold, otherwise known as leasehold (when the length of duration is certain or capable of being rendered certain). The owner of the freehold, since it is a form of property, is free to sell it or give it away. Alternatively, the owner may grant a lesser estate (one for a shorter period of possession) than his own to which that property will then be subject. The leaseholder may himself grant a lease (of a lesser duration) out of his own estate, whilst still retaining his own original lease (albeit now subject to the sub-lease “or under lease “).

The three estate of freehold are fee simple; the fee tail and the life estate. The fee tail is an estate which exists for as long as the tenant or any of his lineal descendants lived, while fee simple exists for as long as the tenant or any of his heirs whether descendants or not were alive. Fee simple could be absolute or determinable or subject to a condition. On the other hand, A life estate lasted only for the life of the person to whom it was granted. However, there could also be a life estate limited by another life - referred to as a life estate pur autre vie (for another life). Thus, the nearest estate to absolute ownership was the fee simple.

However, in regard to the exactness of what the tenant own, Prof. F. H. Lawson states thus, “The solution adopted by English law was to create an abstract entity called the estate in the land and to interpose it between the tenant and the land. Since the estate was an abstract entity imagined to serve certain purposes, it could be made to conform to a specification, and the essential parts of the specification were that the estate should represent the temporal aspect of the land…”

Thus, the idea of an estate was to define the rights and interest accorded by the law to the tenant. The notional entity of the doctrine of estate was interposed between the tenant and the lands with the consequence that what the tenant or proprietor of the land owns is not strictly the land itself, but rather an estate or interest in the land, and each estate being graded with reference to its temporal duration. The duration of estate connotes that each landlord owned not the land but a slice of time in the land. Also, the interest owned confers certain powers of management and disposition of the land according to the nature of the estate.

In addition, in the Walsingham case, the court clarified the distinction between the land and the estate. It was held: “…the land itself is one thing and the estate in the land is another thing, for an estate in the land is a time in the land, or land for atime, and there are diversities of estates which are no more than diversities of time…”. As such, the doctrine of estate quantified the abstract entitlement which might be enjoyed by any particular tenant within the tenurial framework.

It is also an elementary principle inherent in the notion of property law that no man can grant another any greater estate than that which he himself owns. For instance, the owner of the entailed estate cannot give an estate in fee simple, he can only grant what he has and that is the entailed estate, or something less than he has. Essentially, the "estate" defined for how long the land could be held and "tenure" defined the terms on which the land was held.  

Futhermore, following the Norman Conquest I'm 1066, the principle that the ownership of all land in England and Wales became vested in the Crown, in theory, has continued up to the present time. Other than the technical ownership of the Crown, the highest proprietary right anyone can hold is a right to possession of the land for a period of time, with or without attached conditions, which as aforesaid is estate. Which particular estate you hold tells you for how long you hold the right to possession of the land. 

In that regard it can be said that in some extremely notional sense, therefore, every parcel of land in England and Wales is held of some lord – almost invariably the crown. It is still technically the case that the crown holds the ultimate or radical title in all land; that no citizen can own land allodially; and that all occupiers of land are merely – in the feudal sense – ‘tenants’. Thus, against the background of the foregoing, the highest possible estate in land under English law is a freehold estate which to all intents and purpose nearly corresponds to ownership of land in the lay man’s parlance. This greatest of estates one can have under English land law is technically known as the fee simple absolute in possession. 

For all practical purposes, the owner of a freehold piece of land is equivalent to the owner of any other property in practice; it is usually perpetual, but if the current freeholder dies without next of kin and without a will, the land reverts to the crown. This is also referred to as bona vacatia or escheat.

In conclusion, in the strict sense of the word, under English law, land ownership has never been applied stricto senso since all the proprietor or tenant of the land owns is not the ownership but the possession, and the enjoyment of rights, interests and entitlements as depicted in the doctrine of estate which grants the right to sell or deal with the property as wished for a particular duration. It merely grants temporal duration in land. Again, it can be seen from the foregoing that the ownership of land under English law is complex, and a potentially infinite number of people may have rights in it. 

Similarly, Tenure makes little practical difference to land law today, as everyone holds their land directly of the Crown, and there are no services due. The only remaining incident of tenure is escheat (the return of the land to the Crown on certain events). The doctrine of estates is still important, however, though the number of estates which can exist at common law was reduced by the Law of Property Act 1925.

Having examined the nature of land ownership under English law, the need for the protection of the purchaser can hardly be over emphasized. As land becomes a tradable commodity with a concomitant demand for easy transferability of title, it is imperative that the means or the process by which lands are bought and sold be made less cumbersome, more safe and secure and less- time consuming.