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 Tenant in Tenant in Tenant in Tenant in

chief chief chief chief chief

Mesne Mesne Mesne Mesne

lords lords lords Lords

Serfs,
peasants
 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 Tenant in Tenant in Tenant in Tenant in

chief chief chief chief chief

Mesne
Sold to G Sold to Y Died without heirs
lords

Serfs,
peasants
 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 Tenant in Tenant in Tenant in Tenant in

chief chief chief chief chief

Mesne Died without heirs –

Sold to G Sold to Y
lords went to next level Lord
 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. Kiansky
2001 MBQB 94

• PREPARED CASE FOR DISCUSSION

 Stuartburn (Rural Municipality) v. Kiansky
2001 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. Kiansky
2001 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. Kiansky
2001 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 title
was 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.
• REVIEW EXAMPLE