From Wikipedia, the free encyclopedia
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.
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.
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.
- Feudal land
ownership, 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.
- 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]
- 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.
- 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.
- Fee simple. Under
common law, this is
the most complete ownership interest one can have in real property,
other than the very rare Allodial title. 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 commons, 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 in particular
countries
- Ireland - Land & Conveyancing Law Reform Bill, 2006 - for
the full text of the Bill and Explanatory Memorandum see: [1]
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.
References
- Sir John Baker, An
Introduction to English Legal History (3rd edition) 1990
Butterworths. ISBN 0-406-53101-3
See also
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