`INTRODUCTION TO LAND LAW

The subject land law is sometimes referred to as the law of real property, and is a
division of the wider law of property. English Law recognizes two kind of property;
property or realty and personalty.

Realty consists of land and objects that are permanently affixed to land such as trees
and buildings. Real property generally is immovable and includes both corporeal and
incorporeal hereditaments.

The term “Corporeal Hereditaments” is an ancient way of referring to the land and
fixtures, while “Incorporeal Hereditaments” are the invisible interests in land as
easement, and mortgages.

Personalty consists of moveable objects and includes chattels and movable such as cars,
furniture etc. personal property can be tangible, such as a fixture and car or intangible
such as an idea or the good will of a business. All property, whether realty or personalty
are classed either “choses in action” or “choses in possession” the former refers to
intangible rights which can be enforced only by action in the courts and are not capable
of physical possession, e.g. debts, easements, copyrights etc. the latter refers to tangible
things capable of physical possession such as land, books etc. land law primarily deals
with issues relating to real property rather than personalty.

THE CONCEPT OF LAND

DEFINITION – The Chambers English Dictionary defines land as the soil portion of the
earth surface. It includes the surface of the earth, together with all the sub-jacent and
super-jacent things of a physical nature such as buildings, trees and minerals. A person,
who claims to own land, however considers himself the owner of everything found on
the land – trees, plants, artificial structures and even animals. According to English
Common Law, land also includes the subsoil down to the center of the earth and the air
space above. Hence the maxim “cuisu est solum, ejus est usque ad coelum et ad
inferos” meaning he who owns the land owns everything reaching up to the very
heavens and down to the depth of the earth. This maxim was dismissed by Grittin J. in
the case of Berstein Of Leigh Barons v. Sky Views General Limited (1978) QB 479 as
merely “Colorful Phrase”; In United States v. Causby 328 US 256, the phrase was said to
have “no place in the modern world” see also the case of Commissioner For Railways et
al v. Valuer General (1974) AC 328; (1973) ALL ER 268, PC

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Land thus includes everything found above or below the surface; everything fixed on the
land whether naturally or artificially and things found above or below it. See the
judgment of Bowen L.J. in the case of Pountney v. Clayton (1883) 11 QBD 820). Apart
from physical things, the concept of land includes abstract incorporeal rights – like of
way or easement or the right to take fruit from someone’s land –a profit a prendre.

In English law, the definition of land is now found in Section 205 of the Law of Property
Act of 1925. It provides that:

“’Land’ includes land of any nature, and mines and mineral ( whether the division is
horizontal, vertical or made in any other way) and other corporeal hereditaments; also
a manor, an advowsons, and a rent and other corporeal hereditaments; and an
easement, rights, privilege, or benefit in, over, or derived from land.”

In Sierra Leone, a definition of land may be found in the Interpretation Act of 1971.
Section 4 defines it as including: “Land -covered by water, any house, building or
structure whatsoever land, any estate interest or right in, over land or water.”

SOURCES OF THE GENERAL LAND LAW

According to Cheshire and Burn’s ‘Modern Law of Real Property, 13TH Edition Pg. 7’ real
property law, like most of the other branches of jurisprudence, falls into three divisions
which are due to the order of its historical development: first of all we get the purely
common law system, which was designed to meet the need of a feudal society.
Secondly, in order of time, we have the equitable system, which though not
comprehensive, was gradually evolved in certain directions with a view to adapting the
common law rules to society moved by different ideas and possessing a more
commercial outlook on life. And finally, we come to the various legislative enactments
by which the judge made law of land was rendered more adequate to the need society.

Magarry in his Manual of the Law of ‘Real Property’ 2 ndEdition states that the history of
the law of property in land can be divided into a number of periods.

1. The Common Law – This was the earlier period during which the common law courts
formulated many of the fundamental rules of land law. During this period a number of
the fundamental principles, such as all land is held by the state and the doctrine of
tenures and statutes were established. A number of important statutes were passed
during this period, which extended from the Norman Conquest to the end of the 14 th
Century.

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2. Equity – This was the period from 1400 to 1535 when the jurisdiction of the
chancellor to give relief in cases not covered by the common law rules was finally
established and developed. As a source of land law, equity gave us the institution of
trust. It also gave us the discretionary remedies – specific performance, injunctions,
rescission, and rectification.

3. The Statutes of Uses – This period was from 1535 to the middle of the 17th Century.

4. The Development of Modern Law – This period encompassed the end of the 17 th
Century to the 18th Century. The institution of trust, which had been considerably
restricted by the Statute of Uses of 1535, was once more enforced. The modern form of
a strict statement of land by which land was “kept in the family” from one generation to
another was fully developed during this period.

5. Statute – The legislature has intervened in matters of land law from a very early age
for example the statutes of uses of 1535, which attempts to restrict the institution of
trust. The Law of Property Act of 1925 made radical changes in England, but does not
apply in Sierra Leone. In Sierra Leone, the Law of Property (Imperial Statutes) Adoption
Act adopts certain English statutes and made applicable in Sierra Leone.

BASIC CONCEPTS IN LAND LAW

REAL AND PERSONAL PROPERTY (REALTY AND PERSONALTY)

The distinction between real and personal property is an ancient one but it is still of
importance today. The term ‘Real Property’ refers to that property which the early
courts would protect by a ‘real’ action (an action in rem). In this context the adjective
‘Real’ does not have its usual meaning of ‘genuine’ but it is used in a technical sense.
The word ‘Real’ is derived from the Latin word ‘res’ (thing). A ‘Real Action’ was one in
which the court would order that the property itself (the ‘Res’) be restored to an owner
who had been dispossessed, rather than giving the defendant the choice of returning
the property or paying damages to compensate for the loss. If someone takes your
table, a remedy in damages will usually suffice, for you may take the money and buy
another table. However, land is unique in its character and at a time when status in
society depended upon one’s relation to land, it was felt where land was lost it was
essential that it should be recovered. Thus there was a distinction between ‘real’
property (where the property could be recovered only by an action in rem) ‘Personal’
property, property, so-called because property could be recovered only by an action ‘in
personam’ (an action against the person of the doer).
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Realty is chiefly an improvements built thereon. Sometimes it is comprehensively, but
loosely, described as lands, tenements (holding by another authority), and
hereditaments (that which is capable of being inherited). Formally, it chief characteristic
in a legal sense where that it went by descent to the heir of the owner ( who had no
control over its disposition) and that ownership might be covered from any other party
by a lawsuit (a so-called real action). The manner in which realty is owned is called an
estate; specifically, ownership is a fee of some sort, for example, an estate in fee simple
(see tenure)

Personal property consists chiefly of movables, that is, portable objects. Typically (but
by no means invariably) the owner can be will, gift, or sale determine its distribution
(note the contrast with the term descent), and if it has been wrongly taken, a lawsuit (a
so-called personal action) will recover damages but will not restore the object. Certain
types of interests in land are also classified as personalty; examples are leases for a
period of year, mortgages and licenses.

Most of the rights considered in land law relates to real property because they are in
land, which would have been subject to an action in rem. There are two main
exceptions. The first is the right of a beneficiary under a trust for sale since the doctrine
of conversion nationally transforms the trust property into money (a form of personal
property) the beneficiary’s interest under a trust are seem to be interests in personalty.

The second example is not so obvious and it results once again from the manner in
which the land has developed. When leases first come into common use, they were
regarded as commercial contracts creating rights in personam between the parties.
Unlike freehold estates; they did not affect the tenant’s position on the feudal ladder,
and were not subject to one of the real actions. If the tenant were dispossessed by his
land lord, he could not recover the land but will only be awarded damages for breach of
contract. Since it was protected only by an action in personam the lease came to be
regarded as personal property. After a time, the tenant was able to recover the land by
an action whether he was dispossessed of the land by his land lord or by some third
party, but this time it was too late to alter the classification of the leases. Leases was
therefore a “chattel”(another name for personal property derived from a French word
from which ‘cattle’ is also derived – livestock being an important form of personal
property). However, recognition of the rather special nature of the lease led to the
rather paradoxical nomenclature of “real chattel” which emphasizes its hybrid nature.

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Leases remain personal property to this day and the distinctions can be sometimes
proved to be of importance. Thus, if a testator were to make the following disposition in
the Will: “all my real properties to my son Alfred and all my personal properties to my
son Bernard” Alfred would receive any freehold property, together with any equitable
interest his father might have had in a trust for sale and all his father’s chattels.

CORPOREAL AND INCORPOREAL HEREDITAMENTS

Hereditaments were those rights, which are capable of passing to heirs by way of
inheritance. In England, hereditaments has been defined – Law of Property Act 1925,
Section 205 (1) (ix) as “Any real property which on an intestacy occurring before the
commencement of this Act might have developed upon an heir”

Having defined “hereditaments” as “inheritable interests”, the Common Law went on to

distinguish between “corporeal” and “incorporeal” hereditaments. Corporeal
hereditaments are things going with land that are perceptible by the senses. They are
physical objects: the physical land and its attachments. Incorporeal hereditaments are
things that cannot be perceived, short as (profit a predre) or easement. They are rights,
not things.

Hereditaments, (from Latin – hereditary, to inherit, hires, heirs), in law, every kind of
property that can be inherited. Hereditaments are divided into corporeal and
incorporeal; corporeal hereditaments are such as affect the senses, and may be seen
and handled by the body; incorporeal are not the subject of sensation, can neither be
seen nor handled, are creatures of the mind, and exist only in contemplation
(Blackstone Commentaries). An example of a corporeal hereditament is land held in
freehold, of incorporeal hereditaments; tithes, advowsons, pensions, annuities, rents,
franchises, etc. it is still used in the phrase lands, tenements, and hereditaments to
describe property in land as distinguished from goods and chattels or movable property.

Blackstone in his commentary volume ii page 17 said “Corporeal (hereditaments)

consists of such as affects the senses; such as may be seen and handled by the body;
incorporeal are not the object of sensation, can neither be seen nor be handled, are
creatures of the mind and exists only in contemplation. Corporeal hereditaments
consists of substantial and permanent objects”

According to Austin – Jurisprudence, 5th Edition (London – Murray 1855 Volume 1 page
362), “The word hereditament is evidently taken into two senses…A corporeal

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hereditament is the thing itself which is the subject of the right; an incorporeal
hereditament is not the subject of the right, but the right itself.”

Megarry notes, “a corporeal hereditament was an inheritable right in realty which was
accompanied by physical possession of the land…An incorporeal hereditament was an
inheritable right to land not accompanied by the physical possession…”

A corporeal hereditament is visible and tangible; an incorporeal hereditament is not in

itself visible or tangible, being a hereditary right, interest, or obligation, as duty to pay
rent, or a right of way.

FIXTURES

Fixtures comprises that category of material objects which, when attached physically to
the land, are regarded as becoming annexed to the realty. In law, land includes things
attached to it naturally and artificially; where things have been attached artificially the
question arises as to whether such things automatically becomes part of the land as in
the Latin maxim “quic quid plantatur solo, solo cedit” meaning “whatever such is
affixed to the soil becomes part of it.” The chattels affixed to the land loose the
character of chattels and passed with the ownership of the land. This is a presumption
which may be rebutted by evidence of a contrary intention. Things so attached to the
land as to become part of it are known as fixtures, but it is not everything attached to
the land that becomes fixtures.

In Elliot v. Bishop (1854) 10 Ex; 496, 507 Martin B. noted:

“The old rule laid down in the old books is that if the tenant or the occupier of a house
or land annex anything to freehold, neither he nor his representatives can afterwards
take it away, the maxim being ‘quic quid plantatur solo, solo cedit’. But society
progressed, and tenants for lives or for terms of years of houses, for the more
convenient of luxurious occupation of them, or for the purpose of trade affixed
valuable and expensive articles to the freehold, the injustice of denying the tenant the
right to remove them at his pleasure, and deeming such things practically forfeited to
the owner of the fee simple by the mere act of annexation, became apparent to all,
and there long ago sprang up a right, sanctioned by and supported both by the courts
of law and equity, in the temporary owner or occupier of real property, or his
representative, to disannex and remove certain articles, although annexed by him to
the freehold, and these articles have been denominated ‘fixtures’; and the best
definition with which I am acquainted is that given in the judgment of this court in
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Hallen v. Runder (1 C.M & R 266) namely, that they are articles which were originally
personal chattels, and which, although they have been annexed to the freehold by a
temporary occupier, are nevertheless removable, and of course salable at the will of
the person who has annexed them.”

The question whether a chattel has been so affixed to land as to become part of it is
sometimes exceedingly difficult to answer. In Reynolds v. Ashby (1904) AC 466, it was
stated that is a question of law for the judges. It depends on two primary considerations
– firstly, the degree of annexation, and secondly, the purpose of annexation.

a.) The Degree of Annexation – The first and primary test is whether the object can be
easily removed. Prima facie, a chattel is a fixture if it has been permanently affixed to
the land or building. It must be actually fastened to or substantially connected with the
land or building. Mere juxtaposition or laying of a chattel, however heavy, upon the land
does not prima facie make it a fixture, even though it subsequently sinks into the
ground. See He Dibble Ltd. v. Moore (1970) 2 QB 181 (1969) 3 ALL ER 1465

In Holland v. Hodgson (1872) Blackburn J. said:

“perhaps the true rule is that articles not otherwise attached to the land than their
own weight are not to be considered as part of the land, unless the circumstances are
such as to show that they were intended to be part of the land, the onus of showing
that they were so intended lying on those who assert that they have ceased to be
chattels; and that, on the contrary an article which affixed to the land even slightly is
to be considered as part of the land, unless the circumstances are such as to show that
it is intended all along it continue a chattel, the onus lying on those who contend that
it is a chattel.”

b.) The Purpose of Annexation – The second test is whether the object was affixed to
the land for the permanent improvement of the land or whether it was for its greater
enjoyment and use as a chattel, or for a temporal purpose. It was stated in Hellawell v.
Eastwood (1851), that in determining the purpose of annexation, the question to be
asked is “was the intention to effect a permanent improvement of the land or building
or was it merely a temporal improvement or to enjoy the chattel?” In the first case, the
chattel is a fixture, in the second it is not.

In Holand v. Hodgson (1872), Blackburn J. gave the following example:

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“Thus blocks of stones placed one on top of the other without any motor or cement
for purpose of forming a dry stone wall would become part of the land though the
same stones, if deposited in a builder’s yard and for convenience sake stacked on the
top of each other in the form of a wall would remain chattels. On the other hand, an
article may be firmly fixed to the land, and yet circumstances may be such as to show
that it was never intended to be part of the land and then it does not become part of
the land. The anchor of a large ship must be firmly fixed on the ground in order to
bear the strain of the cable, yet no one could purpose that it became part of the land
even though it should chance that the ship’s owner was also the owner of the fee of
the spot where the anchor was dropped. An anchor similarly fixed in the soil for the
purpose of bearing the strain of the chain o9f a suspension bridge will be part of the
land”

Contrast Jordan v. May (1947) ALL ER 421 (1947) QB 427 with Buckland v. Butterfield
(1820) 2 Brod, B 45. Both deal with the degree of annexation. In Buckland v.
Butterfields, it was held that a conservatory which was attached to a house by 8
cantilevers, each 9 inches long formed part of the land. This is important because
should one wished to retain an remove such a fixture when selling the freehold estate
in the land, one must specifically contract to exclude the fixture from the garden of a
house, which he is selling, he should provide for this when the contract is made.

In Berkely v. Poulett (1976) 242, estate gazette 39 a large statue made of marble and
weighing nearly half a ton, was not regarded as part of a land, because it was standing
plinth and not fixed down in any way.

The basic rule is therefore that anything annexed to land becomes land. However, the
courts have long accepted that something, which is affixed merely to facilitate its
display, or in order to steady it, is not to be regarded as becoming part of the land.
Thus, in LEIGH V. TAILOR (1902) AC 157, a tapestry tacked to strips of wood, which
were then affixed to the wall, was not regarded as being part of the land. The degree of
annexation in this case was merely that which was necessary for the display of the
tapestry. In HULME V. BRIGHAM (1943) KB 152, printing machine weighing between 9
to 12 tons was not regarded as fixtures, even though they attached to the motors,
which were fixed to the floor. In this case the degree of annexation was slight and was
necessary merely to render the motor stable. See also SIMMONS V. MIDFORD (1909) 2
ALL ER 269

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In rare circumstances, something which is not actually fixed to the land but which
appears to form an integral part of it may be regarded as forming part of the land for
legal purposes. The best example of this is D. EYNCOURT V. GREGORY (1866) LR 3 Eq
382, in which stone statues, seat sand garden vases were held to be part of the land
even though they were freely standing as were certain tapestries and pictures hanging
upon the walls. The basis of the decision is that the ornaments formed part of the
integral architectural design of the house on the property. Thus, it appear that the
existence of a “master plan’ concerning the property may render items part of the land,
even though there is no real annexation.

Another illustration was supplied by Blackburn J. in HOLLAND V. HODGSON (1872) LR

7CP 328 at Pg. 335 when he explained that a pile of stones lying in a builder’s yard
would obviously not form part of the land upon which it play. However, where the
same stones to be constructed into a dry stone wall (which uses no mortar and no
method of fixing the wall to the ground) on a farm, the wall obviously would form part
of a land of the farm.

In PHILLIPS V. LAMDIN (1949) 2 KB 33; (1949) 1 ALL ER 770, the question between a
vendor and a purchaser. It could also arise between executor of a fee simple owner and
the devisee; mortgagor and mortgagee or between a leassor and a lease. In the case of
leases, the law permits a lease fixture SMITH V. CITY PETROLIUM CO. LTD. (1940) 71
ALL ER 260. See also POOLE’S CASE (1703)1 SALK 368. A tenant is also allowed to
remove domestic or ornamental fixtures. Fixtures however, must be removed without
causing substantial damage SPYER V. PHILLPSON (1931) 2 Ch 183 (wood trade fixtures
must be removed before the expiry of the lease). Domestic and ornamental fixtures can
be removed before or in a reasonable time after expiry of the lease.

THE CONCEPT OF WASTE

A life tenant is limited in his use of the property by the doctrine of waste. The effect of
this limitation if to afford protection to the remainder or reversion. Waste may be
defined as an act or omission altering the nature of the land, usually resulting in loss to
the person entitled to inherit. Cheshire and Burns state that “waste means in general
such damage to houses or land and tend to the permanent and lasting loss of the
person entitled to inheritance. In DASHWOOD V. MAGNIAC (1891) 3 Ch. 306 “waste in
law is destruction of a part of the inheritance by a limited owner, such as a tenant for
life or year”

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There are four kinds:

i.) Ameliorating Waste –This amounts to alteration that improves the property. In
DOHERTY V. ALLMAN (1877)3 App Cas 709, lease for 99 years converted useless
dilapidated storehouses on the land into dwelling houses. The landlord claimed an
injunction to restrain such waste. The Court of Appeal and House of Lords refused the
injunction. Life tenants are not liable for this type of waste.

ii.) Equitable Waste – This consists of acts of malicious (intentional) or wanton

destruction. In TURNER V. WRIGHT (1860) Lord Campbell defined equitable waste as
“that which a prudent man would not do in the management of his own property” A
tenant for life is liable for this waste unless exempted.

iii.) Permissive Waste – This arises from a mere act of omission or neglect, not of
commission, and is the result of allowing the land to fall into a state of decay. No
liability attaches to the tenant unless an obligation to repair is imposed upon him by the
terms of the limitation under which he holds. See RE CARTWRIGHT (1889) 41 Ch 532. In
WARREN V. KEEN (1954) 1 QB 15, a landlord sued her tenant for deterioration of the
premises let due to fair, wear and tear. Denning L.J. in the Court of Appeal stated that
“Apart from express contract, a tenant owes no duty to the landlord to keep the
premises in repair. The only duty of the tenant is to use the premises in a …tenant like
manner….The tenant must take proper care of the place. He must clean the chimney,
when necessary, and also WOODHOUSE V. WALKER (1880) 5 QBD 404.” It is also
sometimes referred to as passive waste.

iv.) Voluntary Waste – This consists of acts which alters the land to its disadvantage. In
Bacon’s Abridgement 7th Edition Volume 8 Pg. 379, voluntary waste is defined as “the
committing of any spoil or destruction in houses, lands etc. by tenants to the damage of
the heir, or of him in reversion or remainder. It may be by pulling down or altering
houses, digging pits or mines, cutting timber, etc. the tenant is liable. Literally, the term
would include equitable waste, but the term voluntary waste is usually reserved for
such voluntary waste as does not amount to equitable waste. A tenant for life is liable
for voluntary waste unless his interest was granted to him by an instrument exempting
him from liability for voluntary waste. See RE HARKER’S WILL TRUST (1938) Ch 323. It is
also known as active, affirmative or commissive waste.

The right of action of the remainder man lies in damages or an injunction. The grant
itself may limit or extend liability, making the grantee liable for permissive waste, for

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instance. Independent of any powers given by the grant, the tenant for life has
extensive power to lease and mortgage his interest under the Settled Land Act 1882.

THE DUAL SYSTEM OF LAND TENURE IN SIERRA LEONE – BACKGROUND TO THE DUAL
SYSTEM

Duality of tenure is not peculiar to Sierra Leone. It is found in other West African
countries, Francophone and Anglophone. However, in Sierra Leone, unlike Ghana and
Nigeria, where both systems of tenure tend to coexist and even overlap, with the same
geographical area, we have a geographical divide with customary land law applying to
the provinces and English land law applying to the western area.

This dual system is a product of the differing political and legal development of what
used to be the protectorate (now the province) and what used to be the colony (now
the western area).

As far as the western area is concerned, the history of the colony must be analyzed. The
colony was founded by a treaty of cession and the land was given “for and on behalf of
and for the sole benefit of the free community of settlers, their heirs and successor
under the protection of the British Government”. In 1791, the St. George’s Bay
Company, which became the Sierra Leone Company, took over the colony. Its objects
were “to carry on trade and hold from the crown, the land originally granted by the
local chiefs and any other land that may be acquired on the Sierra Leone Peninsular.”
The Sierra Leone Company Act designated the company’s territory as including “one
independent colony called the colony of Sierra Leone” the company’s government
made grants of land to the settlers, conditional on “the payment of quit rent” which
were a form of taxation. This confirmed the settler’s belief that they no longer owned
the land. They refused to pay the quit rents, and the company government eventually
failed. By the Sierra Leone Company Act 1807 – passed in the year as the Themne Chief
Bai Farma signed a peace treaty with the British – the company became “divested of all
the land known as the peninsular of Sierra Leone, the same and every of them are and
is hereby declared and enacted to be absolutely vested in his majesty, his heirs and
successors forever.”

On January 1st 1808, Sierra Leone became a crown colony and steps were taken to
regularize the position of existing grants. After 1808, before land was granted t a
settler, he had to acknowledge allegiance to the crown and pay the “quit rent”. The
crown reserved a right of resumption – to re-enter the land if needed – the doctrine of

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eminent domain. Various other territories were ceded to the crown or conquered from
the themne. Treaties of cession in 1825 and 1861 corrected the cession of what is now
Port Loko District, the islands of Sherbro and Turtle were also ceded by treaty. Unlike
the colony, these territories never became crown possessions. The exception is the
Sherbro – Urban District.

The indigenous people claimed that they had never accepted that they had made an
out and outdisposition of land. The British paid the charges for the land in Koya and
compensated the Themne for crops destroyed as a result of development in the colony.
This situation of absolute ownership contrasted with what obtained in other territories
along the west coast. As far as Nigeria was concerned, the Privy Council per Viscount
Haldane stated in AMODU TIJANI V. SECRETARY FOER SOUTHERN NIGERIS (1921) 2 AC
399 that: “No doubt that there was a cession to the British Crown, along with the
sovereignty of the radical or ultimate title to the land in the new colony, but this
cession appears to have been made on the footing that the right of property of the
inhabitants were to be fully respected. This principle is a usual one under British policy
and law when such occupation takes place. The general words of the cession are
construed as having related primarily to sovereign rights only.”

1. THE CONCEPT OF TENURES

Tenure is the set of conditions upon which a landlord may grant to a tenant at legal
estate in (or a right to possession of) land .The conditions may be expressly set out in
the grant; many are implied by law, some dating from feudal times.
The word “tenure” (from the Latin word “tenere” which means “to hold”) describes a
relationship in feudal land holding between one person (known as the lord) and another
(known as the tenant). Under this relationship, the tenant held the land of the lord, in
return for periodical rendering of services and payment of money. Under this system of
feudalism (introduced in England after the Norman Conquest in 1066) the monarch was
regarded as lord paramount –the owner of all the land in England. All other persons
were therefore unable to own land, and were thus all tenants. A small part of the land
owned by the crown was in its actual occupation, the rest was occupied by persons
holding directly and others indirectly, from the sovereign. Hence the statement: “Nulle
Terre sans seigneur” – no land without a lord. The pyramid of power was thus:

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 KING

TENANT- IN – CHIEF

MESNE LORDS

TENANT- IN – DEMESNE
There developed a theory that what a tenant owned or held was not the land, but an
interest in the land, and the term “tenure” came to be used to describe the quality or
manner of the tenants’ possession and how the land was held, while the term “estate”
(derived from the word “status”) described the quantum or how long he would have the
interest. There were two main categories of tenure which existed at common law, free
and unfree.
a.) FREE AND UNFREE TENURE
Free tenure was divided into lay and spiritual tenure. Lay tenure was subdivided into
two types Military tenures (also known as tenures in chivalry), e.g. knight services,
where the tenant was required to perform military duties for his mesne landlord, such
as the provision of armed retainers and Tenures in socage.
Under spiritual tenure, the obligation of the tenant was to say an indefinite or fixed
number of prayers for the grantor and his heirs’ soul. It was divided into two types’
divine service and frankalmoign
There were two types of unfree tenures a copy held on a villeinage (later copyhold) and
customary tenure. Villeins originally had no rights in the land, could not marry without
their consent, could not leave the land and could be sold with the land.
Shortage of labour in the late middle ages enable the villein to force an improvement in
their status by substituting money payments called rents for services formerly required,
and obtaining recognition as tenants of the land on which they lived .Copies of the rolls
or records of the landlord’s courts evidenced these tenancies, and this type of tenancy
came to be called copyhold.
Certain incidents flowed from feudalism, such a feature of the early feudal system was
that each time land was transferred, a new tenure was created. Hence, there was no

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limit to the number of Mesne Lords that could be created. This was called
subinfeudation.
b.) LAND TENURE AND CUSTOMARY LAND LAW IN SIERRA LEONE- BACKGROUND
The Sierra Leone jurisdiction admits of dual legal systems; on the one hand is the
received English law and on the other hand Customary Law. English Law applies wholly
exclusively in the Western Area and the Bonthe Urban District while customary Law
applies predominantly in the provinces of Sierra Leone and exists therein side by side
with English Law.
This duality of our legal system in Sierra Leone is due to the Country’s historical
experience of having gone through a period of colonial Titulage, like indeed many other
countries in sub Saharan Africa, as former colonies of Britain. When British Colonial rule
was introduced in its colonies of which Sierra Leone is no exception, the need arose in
each case for a general LEX LOCI- Law of the place. In the absence of any particular pre-
existing legal system in each of these colonies capable of general application, the
colonial power, Britain, then impose its own Metropolitan English Law over the existing
Customary Law in these colonies. Hence we find English Law firmly established in the
former British Colony of Sierra Leone which is the present day Western Area, as in all
other British Colonies to be the basic residual law. This comprises of (a) Imperial
Legislations, (b) Act of parliament or Order in Council (specifically relating to the country
in question), (c) Enactments of the Local Legislature (which tend to be English law in
form and spirit and also largely in content subject to the terms of such legislations, the
Common Law, the doctrine of Equity and the statute of general application which were
in force in England on a given reception date. In Sierra Leone this date is 1 st January
1880 by authority of Section 74 of the Courts Act No 31 of 1965.
In Ghana, the reception date is 24th July, 1874, in Kenya, 12th August ,1897,in
Uganda ,11th August ,1902 and in Tanzania 22nd July ,1902.
By the time the English Feudal system was introduced in Sierra Leone there had been
significant changes. The statute Qua Emptores of 1290 prohibited any further
subinfeudation except by the Crown. The Tenures Abolition Act 1600 had also been
passed abolishing virtually all forms of free tenure except socage and also dealt away
with some of the most burdensome incidents of the feudal relationship. This was
introduced almost imperceptibly through the making of Crown grants i.e. unfree and
common sucage. Though in theory the recipients of such grants could be considered as
tenants of the Crown in the feudal sense the practically held their land as absolute
owners free virtually from any of the incidents of tenure.

14
Forfeiture and Escheat were also introduced. Forfeiture arose in case of treason and
felony, but has now been superseded by Statute. In 1886, the Escheat Act 1886 (CAP 20
of the Laws of Sierra Leone 1960) was enacted with the following subject “to provide for
the appropriation of the casual revenue of the Crown arising from escheated estates
and to declare the law and practice in cases of escheat” Escheat has however been
overlaid by the concept of “Bona Vacatia” which applies to all property as per CAP 45 of
the Law of Sierra Leone 1960. The position of the State as Lord paramount is preserved
by the Unoccupied Land Act CAP 17 of the Laws of Sierra Leone 1960.
As far as the doctrine of Estate is concern the position is however different. The doctrine
is still of paramount significance in Sierra Leone today. An estate in land is an interest in
it. This also developed out of the Feudal system, from the difficulties that the medieval
lawyers had in grasping the distinction between ownership and interest in land. To this
abstract concept they tried give meaning by saying that all tenants did not hold land but
an interest or estate in it. The concept was one of possession or “Seisin”. The tenant is
the one who is “seised” of land or who has immediate Seisin. One may be seised for a
life estate or an estate forever.
c.) CUSRTOMARY LAND TENURE IN SIERRA LEONE

Within this framework of English law, there exists Customary Law, which represents the
indigenous legal system in Sierra Leone .In an effort to give the emphasis it deserves,
one can simple refer to it as “the old law which forms the traditions and practices
recognized as of old among particular tribal ethnicities and which continues to be
binding as a legal force “Thus J.S. FENTON in his book “OUTLINE OF NATIVE LAW IN
SIERRA LEONE” described it as” the wise way of dealing with a situation which the old
people had (i.e.) tried wisdom)plus recent “laws” now being tested by the courts.
Customary Law regulates our native institutions of marriage, Divorce, Succession and
most importantly the Land Tenure system.
All land in the provinces is governed by Customary Law. The underlining concept which
governs this cardinal rule is that all land in the provinces are vested in the Chiefdom
Council or Tribal Authorities of which the Paramount Chief is the head as trustees. This
concept further has its foundation to the declaration of the Protectorate in 1896 over
the hinterland of Sierra Leone by the British Government when the native ownership of
the land by the tribes in the protectorate now known as the provinces was recognized.
This view was maintained in Protectorate land Ordinance of 1927 which was further
extended to Ordinance no. 32 of 1933 which states:

15
 “All lands in the protectorate is vested in the Tribal Authorities who hold such
land for and on behalf to the Native Communities concerned”
No doubt therefore that the present law regulating the provincial land use system as
contained in Section 2 of the Protectorate (Provinces) Land Act CAP 122 of the Laws of
Sierra Leone 1960, preserved as well the concept that land is vested in the Tribal
Authorities who hold the land for and on behalf of the native communities.
There further exists in the provinces an elaborate and very interesting land tenure
system which characterizes the manner and method of holding land. There is in the first
instance the COMMUNAL LAND TENURE by which the paramount interest in the land
within a given area in the Chiefdom is held by and on behalf of the community as a
whole. The paramount title to the land is here vested in socio-political head of the
community. This varies depending on the community level. The highest level is the
Chiefdom whose head is the Paramount Chief who shares responsibility with other
socio-political heads at the lower levels such as the Section Chief at Section level and
Town or Village Chief at Village or Town level. These communal lands only include
unapportioned or unappropriated portions of land in the community and also those
lands preserved for the use of the community as a whole such as Cemeteries, Praying
Grounds, Society bushes all of which are subject to the direct control and management
of the socio-political head.
The second system of tenure is the FAMILY TENURE. This is where the absolute or
permanent interest in certain land within a particular Chiefdom is vested in various
decent groups, each with a common ancestry and which constitute a family unit. This
family unit is endowed with corporate legal responsibility which enables them to hold
land as a group. The family as a group can enjoy the fullest cluster of rights which
includes the right of enjoyment and disposal of the land for which it holds a permanent
interest. Responsibility for management and control of the family land is vested family
head. Traditionally, the head of the family is usually the eldest member of the family. In
modern times however the method of appointment of family head is by consensus
normally after the funeral of the predecessor. Age, education and wealth may
sometimes influence the choice of a family head. Once chosen the family head takes
charge of the family land and his position becomes similar to the socio-political head.
The third system of land tenure which perhaps one can say is as a result of modern
development and thus is regarded as foreign to Customary Law is the INDIVIDUAL
TENURE. This is where the ultimate or paramount interest in the land is vested in the
individual. This system is opposed to the Communal and Family Tenures. It is a modern
development and thus cannot be ascribed to any particular group or tribe since it is now
16
visible in all groups and tribes in the large Urban Provincial Towns and District
headquarter towns. It must be noted that individual ownership of land is limited only to
the natives who have the Customary Law as their personal law. Thus non-natives cannot
have a freehold interest in land. Their interest in land is on a limited basis mostly in the
form of a lease.
It is therefore important to state here that the two prominent systems of holding land in
the provinces are the Communal and Family land holding systems. It is in recognizance
of these facts that the law regulating land use in Sierra Leone laid emphasis on the
trusteeship of the Chiefdom Councils or Tribal Authorities. Thus the Chiefdom Councils
or Tribal Authorities are not the owners of the land but custodians who hold for and on
behalf of the true owners who are thus the respective communities and families.
2. ESTATES
The term estate includes the duration of an interest in land. Estates vary according to
duration or quantum. They could last forever, for life or a term of years. When the time
for the ending of the estate is uncertain, it is know as freehold estate .When the time is
fixed it is known as less than freehold (leasehold)
A freehold estate is aright to possession of land for a period of time whose maximum
duration cannot be pressed with certainty in term of year, months or weeks .Freehold
estate could either be capable of inheritance or uninheritable .Where it is capable of
inheritance,it is said to be’’ free ‘’ (free simple or free tail ) .An example of an
uninheritable estate is a life interest . This may be measured either by the life of
grantee, or that of another person (that is an estate pur autre vie)
Estate less then free hold can also be divided by duration. There are lease for a fixed
term of years. A lease can also be held from year to year i.e. perpetually renewable
VARIOUS TYPES OF ESTATE
1.) FREE SIMPLE
This has always been the most valuable and most important of the estates known to
English law.
It has always been an “estate of inherence” i.e. an estate which can pass on from
generation to generation. Indeed, its duration is unlimited and allows the owner
extensive power over land.
This estate comprises the greatest ownership interest in property recognized by the
law .Today; it is usually referred to as absolute ownership. The owner can dispose of the

17
land as he or she pleases and it will descend to the owner’s heir at death or according to
the term of the owner’s will.
Section 28 of the Will Act 1837 which is applicable in Sierra Leone provided that “Where
any real estate shall be devised to any person without any words of limitation, such
devise shall be construed to pass the free simple or other whole estate, unless a
contrary intention shall appear by the will”.
As far as Sierra Leone is concerned, a free simple interest can be equated with absolute
ownership- JABERV. RADAR (1950/6) ALR SL 97 When it is a present, unqualified grant, it
is frequently referred to as a free simple absolute in possession.
 FEE
The word “fee “is derived from the Latin “freedom” and denoted san estate capable of
inheritance i.e. inheritable interest in land. The estate would endure until the person
entitle to it for the time being died interest and left no heir.
 SIMPLE
“Simple” means that the fee can pass to any successor i.e. the estate can be inherited
by the “general heir ’’ It was not restricted to a particular class of heirs This means that
the estate would last as long as there were heirs to inherit . If a man died intestate
(without making a will), any fee simple estate that he owned would pass to his heirs-a
single individual who was identified according to complicated rules. If the decreased has
children, the heir would be his eldest son .If the eldest son predeceased his father but
has himself left a son –that grandson would be his grandfather’s heir. If there were no
son to inherit, any daughters inherited the estate jointly. If the deceased has no
descendants, his heirs would be found amongst his brothers and sisters, or their issue,
with preference being given once again to the oldest male. If still no heir could be found,
the search would continue amongst the deceased’s ancestors, his father or uncles and
aunts, or their descendants. It might be therefore that the estate would pass to a fairly
relation, as long as he was the closest living relative
 ABSOLUTE
The word absolute means that it is not subject to qualification determination by any
event i.e. it indicates that the fee simple should not be subject to any restriction
whereby it may not endure as long as there are persons entitled to inherit. So, if I try to
give Fred fee simple estate and limits it until he qualifies as a solicitor, until he qualifies a
solicitor the gift cannot be of a fee simple absolute estate , since the estate will not
necessarily last forever. It will end earlier should Fred never become a solicitor. This is

18
referred to as a determinable fee simple that is one which according to the express
terms of its limitation may determine by some event before the completion of the full
period it may possibly continue.
Preston on Estates explained as follows: “The epithet absolute is used to distinguish an
estate extended to any given time, without any condition to defeat, or collateral
limitation to determine the estate in the mean time, from an estate subject to a
condition or collateral limitation. The term absolute is of the same signification with the
word pure, or simple- a word which expresses that the estate is not determinable by
any event besides the event marked by the clause of limitation”
 POSSESSION
The phrase “in possession “means that the grantee is entitled to physical possession,
though he may contract to part with possession in return for rental, e.g. where he rents
a lease of the land. Possession is not confined to physical possession; tenant in fee
simple who leases land at Juba to a tenant for 10 years is the owner of a legal estate
even though he is not in physical possession. However, if the tenant is entitled to the
fee simple sometime in the future then he is not in possession. Land at Wilberforce
granted to Z for his life time and then to Y in fee simple, during Z’s life time Y is not in
possession.
WORDS OF LIMITATION
Words of limitation indicate the size of the interest given. It must be distinguished from
words of purchase, which points out, by name or description, the person who is to
acquire an interest in land. The purchaser in this sense does not denote a person who
buys land. The word is used in the technical sense to denote one to whom land is
expressly transferred by the act of the parties. If a piece or parcel of land at Marjay
Town is given “to P and his heirs” P is the purchaser since he is personally designated as
the transferee and the words “and his heirs” are the words of limitation .They merely
indicate the quantum of interest that P is to take and give the heirs nothing by direct
gift. The lands may be descended to them as heirs if P dies but they will not be
purchasers since the land come to them by operation of law and not by the act of the
parties. For a definition of the term “purchaser” see IRC v. GRIBBLE (1913)3 KB 212-
BuckleyLJ at 218
Under the old law , in order to create an estate of a particular size, appropriate words of
limitation must be used e.g. “to B and his heirs” the three words were said to be the
words of limitation , and different rules were applicable depending on whether the
grant was by deed or by Will. At common law, the only language that could create a fee
19
simple was a grant to the transferee “and his heirs” The phrase “and his heirs” was the
grant’s way of indicating that the estate was inheritable by the grantee’s heirs.
In1881, the English Conveyance Act [which applies in Sierra Leone by virtue of the
schedule to cap 18] S15 introduced a change. This enacted that the use of the words
“fee simple” were sufficient to create the estate. But this was still restrictive so that if a
gift is given “to B in “fee” leaving out “simple” this merely create a life estate – RE
ETHEL& MITCHELL& BUTLER’S CONTRACT [1901]1 CH 105
The present position in Sierra Leone is governed by section 58 [1] of Imperial statute law
of property (Adoption) Act Cap 19 of the Laws of Sierra Leone 1960, which is similar to
section 60 (1)of the English of property Act 1925 . This provides that a conveyance of a
freehold land to any person without words of limitation operates to pass to the grantee
the fee simple or other interest which the grantor has power to convey in such land,
unless a contrary intention appears in the conveyance. Today, the requirement of
special words of limitation to create a fee simple estate has been abolished in virtually
every jurisdiction and has been replaced by a statutory presumption in favour of fee
simple estate.
ii.) RIGHTS OF THE FEE SIMPLE OWNER
The owner can use or dispose of the land as he wishes. The right of alienation is
probably the most important one that the fee simple owner has. Alienation may be by
word or deed, the owner here having almost complete testamentary freedom, which by
virtue of the inheritance [provision for family and Dependants] Act 1975 is no longer the
case in English. This Act is not applicable in Sierra Leone.
The fee simple owner also has the right to enjoy the land, including its fruits and
benefits .This generally applies to everything above and beneath the land, subject to
limitations both at the common law and by statute. In accordance with the maxim,
“cujus est solum, ejus est. usque ad ceollum et ad inferos”the common law principle is
that the owner in fee simple is owner of everything in, on and above the. In POUNTNEY
V. CLEYTON (1883) 11 QBD 820 AT 838, Lord Wilberforce said “At most the maxim is
used as a statement, imprecise enough, of the extend of the rights, prima facie, of land:
Bowen Lj was concerned with these right when he said “Prima facie the owner of the
land has everything under the sky don to the centre of the earth’’’’
At common law liability is imposed under the law of tort in nuisance, the maxim
“SICUTERE TUO ET ALIENUM LAEDAS” MEANING “so use your property so as not to
injure your neighbor” This applies in nuisance and also in negligence and the rule in
RYLANDS V FLETCHER [1868] L.R 3HL 300, which imposes liability of the escape of
20
dangerous things, which have accumulated on land through the agency of man.
Restriction of land use may be by the agreement of the owner by granting lease.
At common the position treasure trove must be considered. All precious minerals gold
and silver in particular, belong to the crown, but the position of minerals is regulated by
statute in Sierra Leone by the MENIRALS ACT CAP 196 and more recently the Mines and
Minerals Act 1994 and the Mines and minerals Act 2009? See – CITY OF LONDON CORP
V. APPLEYARD (1963)2 All E.R.834, PARKER V. BRITISHAIRWAYS BOARD (1982)1 All E.R.
and MOFFAT V.KAZANA (1968) 3 All E.R. 271
Other statutes restrict the use which a landowner can make of his land The FORETSRY
ACT NO .7 of 1988 create certain forest reserve and the Guma Valley Act [No 3 of 1961]
gives the Guma Valley water company certain right over lands and rivers . The civil
Aviation Act No 33 of 1966 regulates the use of the airspace over Sierra Leone.
The defense Lands acquisition Act [Cap119] gives the government the right to acquire
certain lands for defense purposes. The statute, which deals with compulsory
acquisition, is the public Lands Act [Cap116] the town and Country planning Act [cap81]
regulate building. The Freetown improvement act [cap 66] is another regulatory Act.
The public Health Act 23of 1966 creates certain offences in respect of unhygienic
premises.
iii.) OTHER RIGHTS
These include the rights, generally, to take the profits from the land –rights to wild
animals, which are with no one’s absolute ownership .When a landowner [or person to
whom he has granted a right] kill an animal, that animal’s remains are thereafter the
property of the land SUTTON V MOODY [1697] LLB Raym 250] - animal killed by
trespasser held to belong to landowner .BLADES V. HIGGS (1865) 11 HL CAS 621.
In the case of rivers, the right to fish depends on whether the river is tidal or non-tidal.
With a non-tidal river. The owner of the bed of the river has the right. If the river is tidal,
the public has a right to fish up to the point where the river ebbs and flows If there are
two landowners on either side of a non-tidal river, they divide the riverbed equally
between them.
Where water flows through a landowner’s land, he is entitle to make use of the land
without any alteration in its quality or quantity, subject to reasonable user “EMBREY V
OWEN [1851]6 FX ch .353 & RUGBY JOINT BOARD V WALTERS [1966]3 All
ER497.Riparian owners may use water flowing through his land for ordinary purposes,

21
and even for extraordinary ones, if the use is concerned with his land, provided that the
water is not substantially in quality or in volume.
In tidal rivers, everything in the bed belongs to the state, and thus everything in the
water. See A.G. V LONSDALE (1866) LR 7 Eq 377 at 388.
A landowner has a right to draw water percolating his land, with considering the wishes
of his neighbors. In England, the WATER RESOURCES ACT 1963 regulates this use.
One may also create interest in the land, in the favour of other people, he can grant
lease, easements, licenses, profits, mortgages etc. in equity or at law , conditional or
unconditionally.
Challis in Law of Real property( 3 rd Edition)p 218 wrote in 1885 that fee simple estate “…
confers , and since the beginning of the legal history it always has conferred , the lawful
right to exercise over , upon , and in respect , to the land , every act of ownership which
can enter into the imagination , including the right to commit unlimited waste”.
However, a man cannot be allowed by society to be complete master of what he calls
his own and that he must submit to restrictions placed by law upon the exercise of
proprietary rights.
iv.) OTHER TYPES OF FEE SIMPLE
Other than a fee simple absolute, there are three other type of fee simple estate –
determinable fee, a fee simple upon condition and a base fee. A determinable fee is a
fee simple, which will automatically determine on the occurrence of some specified
even which may never occur .If the event is bound to happen, than the estate is not a
determinable fee. A grant to K and his heirs “as long as the cotton tree stands” is a
determinable fee. A grant to F and his heirs until O dies is not as O is bound to die. These
types of estates are rarely encountered in practice today.
A fee simple upon condition is a fee simple estate with a clause added providing that the
fee simple is not to commence until some event occurs, or that it is to determine on the
occurrence of some event. The condition may be precedent as in this case – “To S and
his heirs when S qualifies as a medical doctor” or a condition subsequent “to J and her
heirs “on condition that she never sells it out of the family”. The essential distinction
between a determinable fee and a fee simple based upon a condition subsequent is that
the determining event in a determinable fee is included in the words marking out the
limits of the estate , whereas a condition subsequent is a clause added to a limitation of
a complete fee simple absolute which seeks to defeat it

22
i.) THE FEE TAIL
An entailed interest is one that is given to a person and after his death to a specified
class of that person’s heirs. The various classes of entailed interests depends on the
terms of the instrument which creates the gift and differ on the basis of whether the
estate descends to the heirs of the donee by any spouse or by a particular spouse and
also according as the heirs are restricted as to sex or not.
Prior to 1285, a grant to “B and the heirs of his body” was construed at common law as
passing a conditional fee. The extent of this rule was that if a grant was made to “B and
the heir of his body”, or to him and any similarly restricted class of heirs, B could make
an out-and out alienation of the estate, binding on his own heirs and on the donor, as
soon as a child of the class indicated was born to him. The effect of such a gift , it was
said confer upon B, a conditional fee, i.e. an absolute fee simple , conditional upon the
birth of issue , capable of inheriting the estate according to the terms of the original
gift . When once the condition was satisfied even though the child died the next minute,
B was in a favorable position as if the land has originally been granted to him simple. If
the condition was not fulfilled by the birth of an issue, then on B’s death the estate
reverted to the donor and his heirs.
This was contrary to the intention of the donor and there was an outcry against a
doctrine that ran so contrary to the expressed intention of the donor. In a bid to correct
this, in 1285 the STATUTE DE DONIS CONDITIONALIBUS (statute of Westminster 11) was
passed. It enacted that the intention of the donor was to be observed according to the
form of the grant .A grant to B and the heirs of his body had the following effects: B
could not alienate the land to the exclusion of his descendants .Secondly, unless a
contrary intention was expressed, the land would descend to B’s issue, the heir being
ascertained in accordance with the rules of inheritance –primogeniture, and, in those
days, the precedence of males over females. On failure of issue the land would revert to
the grantor, or his successor in title.
The result of this statute was the appearance of a new kind of fee or inheritable estate
called a fee tail. This comes from the Latin expression “feodum talliatum” –a fee that
has been cut down .Whereas a fee simple can pass to any of the successors of the
grantee , a fee tail without more, descends only to the lineal descendants of the grantee
. This estate passes from generation to generation of the family line and does not end
until the family line ends.
Thus the statute set up an entailed interest in the true and proper sense of the term –an
interest in land that was bound to descend from one generation to another if the issue

23
of the tenant and which could not by any means whatsoever be removed from the
family so long as any lineal heirs of the class specified were in existence. However,
according to Blackstone in his commentaries Volume II page 116 the statute instead of
being a blessing calculated to ensure the stability of families proved to be one of the
mischievous institutions in the realm. “Children grew disobedient when they knew they
could not be set aside; farmers were ousted of their leases made by tenants in tail …
creditors were defrauded of their debts… innumerable latent entails were produced to
deprive purchasers of the lands they had fairly bought …”
Despite these problems the statute continued in force for over 200 years. The nobility
were fond of the statute as it preserved their family estates. It took the ingenuity of
lawyers to contrive to discover means whereby estate tails could be barred and
converted into estates in fee simple, free from succession rights of heirs, free from
those persons who were entitled to take upon failure or extinction of heirs. Collusive
lawsuits known as Common Recovery and Fine made it possible for the holder of a fee
tail estate to enlarge it into a fee simple despite the statute .Today, most jurisdictions
either do not recognize a fee tail estate, preserve it for one generation only or provide a
means by which the holder can convert it into fee simple.
CREATION AND TYPES OF FEE TAIL
There are various types of fee tail. There are basically two types of Fee tail namely A fee
tail general – any direct descendant and a fee special- restricted to particular general
descendants . e.gs include “to B and the heirs of his body”( fee tail general), “to B and
the heirs of his body with C” (Fee tail special) A restriction in general to descendants by
sex can operate – tail female general, tail male general, tail female special
An interest in tail general is the widest entailed interest-“To G and the heirs of his body
begotten.” There are no restrictions as to the wife upon whose body the heirs are to be
begotten, or as to the sex of the heirs who are to take.
In tail male general and in tail female general restrict the estate based on the sex of the
heirs. To D and the heirs female of his body begotten. Any daughter by any wife is
capable of inheriting
Interest in tail special is restricted to the heirs of the body of two specified persons
instead of one e.g “To W and heirs begotten by him on the body of R and their heirs
begotten of their two bodies”
A tail male or female special is a grant for e.g “to T and his heirs female that he shall
beget on the body of his wife U”.

24
 BARRING THE TAIL
As a result of dissatisfaction with the position of the tenant for life, two methods of
barring the tail grew up, the common recovery and the fine.
a. THE TALTATRUM CASE [1472] YB 12 Edw IV –If B had an estate in tail and wanted
to sell the fee simple to C; he was allowed by the common law courts at the time to
bring proceedings known as “ suffering a common recovery” and the judgment of the
court resulted in B becoming a free simple owner . This could only be done when B was
the tenant for life, or had his consent.
If a prior tenant in possession refused to give his consent, a subsequent interest holder
could employ another method known as a fine – starting at around 1540. This however,
create what was known as a base fee (now defined in S 1 of the fines & recoveries Act
1833] . This has the same characteristics as a fee simple, except that its duration is
limited to that of the fee tail from which it was created. The base fee is said to be
interest created when the holder of an entailed interest tries to transfer it to another
person, without satisfying the requirements for “disentailing” (converting the interest
into a fee simple) .The recipient takes only a base fee, which lasts as long as the entailed
interest would have lasted, and ends when the original grantor becomes entailed to
enforce his reversion.
In 1833, parliament intervened because these collusive actions were proving dilatory
and expensive the fines and Recoveries Act was passed. Ti became possible for the
holder of a fee tails to bar the tail by executing a deed in his life time (known as a
disentailing assurance) which must b enrolled in the court of chancery within 6 months
of its execution –later on, in the central office. If he wanted to disentail his own favour,
he would divest to a trustee in trust for himself. [In England, under the law of property
Act 1925, 572 (3) this method is no longer necessary, you can now make a disentailing
deed to yourself
Even after the Act, if you did not have the consent of the tenant in possession, you
would still only get abase fee [seeS34 of the Act]. This could, however, be enlarged.
Imagine a grant by A to B for life, with remainder to C in tail, with remainder to D. If C in
an attempt to bar the entail does not obtain the consent of B, he would end up with a
base fee. If he conveys this to E, E has got abase fee, this can be converted to a fee
simple, if executed a fresh disentailing assurance to E with B’s consent. See S.19, 1833
Act & BANKER V SMALL [1887] 36 Ch D. 716.

25
Similarly, if C makes afresh assurance after B’s death that would convert the base fee to
a fee simple. Similarly, if E acquires D’s fee simple. In remainder, there is a merger and E
gets a fee simple [S. 39]
POSITION FO FEE TAIL IN SIERRA LEONE
At common law, a fee tail could be created by deed only by the use of words showed
inheritance and procreation – the word “heirs” was essential. The requirement at
common law was that the word heirs must be used .No analogous word like seed,
offspring or descendant was sufficient to create a fee tail .Again, statute intervened –
the Conveyancing Act 1881, S. 51, which stated that the use of the words “in tail” was
sufficient – “To W in tail” The words in tail male or in tail female could also be used
instead of heirs’ female of the body.
Where the grant was by will, the intention of the testator was to be ascertained by
looking at the totality of the will. Various expressions have been used by the testator
with the intention of creating an entail –to A and his offspring. To A and his children’s,
To E and his issues. See SLATERY V. DANGERFIELD (1846)
THE RULE IN SHELLEY’S CASE [1581] 1 CO REP 88b
The rule may be stated thus:
“It is a rule of law that when an estate of freehold is given to is a person, and by the
same disposition an estate is limited either mediately or immediately to his heirs or the
heirs of his body, then if both limitations are legal or both equitable, the words “heirs of
his body” are words of limitation and not words of purchase”
This rule of law states that where land is given by will or deed to a grantee for life, with
remainder to his heirs, the grantee took a fee simple, where the grant is to the grantee
for life, with remainder to the heirs of his body, the grantee took only a fee tail. The rule
applies only where the same instrument creates the estates concerned, and where the
estate is freehold. The rule applies irrespective of the will of the testator.
If land was granted to F for life and to the heirs of his body, the natural meaning of the
words is that F takes a life estate and heirs of his body take a fee tail interest.
For the rule will only operate under the following conditions:
1) It is a rule of law not a rule of construction designed to carry out the intention of
the testator or grantor. It applied notwithstanding any contrary intention.
2) It applied only if a freehold estate preceded the remainder to the heirs Thus, a
grant to L for 210years, remainder to his heirs “did not fall under the rule.
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 3) The disposition must be the same. It must be contained in the same will or deed
but a will and a codicil were treated as the same instrument. HAYES and FORDE
V. FORDE (1770).
4) The rule applied whether or not there was some estate or interest between the
estate of freehold and the remainder- either mediately or immediately.
5) In a conveyance inter vivos the word “heirs” must be used. In a will, the rule
applied even if the word “heirs” was not used.
6) The rule will only apply if both limitations are legal or both are equitable. The rule
will not apply to a grant “to Q and his heirs in trust for W for life and then to W’s
heirs upon her death” as W has an equitable life estate and her heirs have a legal
contingent remainder.
7) Words of limitation not words purchase

The rule has abolished in England by section 131of the law of property Amendment Act
1925. It is still applicable in Sierra Leone. In VAN GRUTTENT V FOXWELL [1897] A C 658,
669 Lord Macnaghten and of the rule in Shelley’s cases “It feudal origin was a grace. Its
antiquity was a reproach. Some judges thought that on those grounds it ought to be
discontinued”.
THE RULE IN WILD’S CASE [1599] 6 Co REP 17a
Where a gift is made by will to a grantee and his children, if the grantee had no children
at the time that the will was made, then the grantee took only a fee tail. If when the will
was made, A had children, A took absolutely together with his children. Under the rule,
the affect of a devise “to E and his children” depended upon the existing facts at the
time the will was made. If E had no children when the will was made, he took an estate
tail, even if children had been born before the testator’s death. If E had children living
when the will was made, the word “children” was treated a word of purchase and E
took jointly with all his children living at the testator’s death.
This rule has been applied in a number of local cases –
KING V WILLIAMS [1929]1920 – 36 ALR [SL] 171
WILLIAMS V BOLLING BROKE –KING [1922-44] 2 SL LAW Rec 21
MAY V WILLIAMS 1950 -6 ALR [SL] 55
SAWYER V ROSE [1964] 1 SLLR 107

27
GEORGE V GEORGE [1964-6] ALR [SL] 480
GEORGE V GEORGE [1967-8] ALR [SL] 86
HARRIS V NICOL [1950-6] ALR [SL] 193
HARDING V HARRIS [1950- 6] ALR [SL] 269
2.) THE LIFE ESTATE
This estate preceded the fee simple and represented the greatest interest that anyone
could have in the 12th century and earlier The essential feature of a life estate is that the
length of the life of a named person or persons governs its duration. It lasts as long as
the measuring life continues.
Under English law, (L.P.A. 1925 S.1) it exists only in equity, but in Sierra Leone, it can
subsist both in equity and at law. It is usually the product of a settlement.
It may also arise by operation of law , in the case of a tenant in tail after the possibility
of issue becomes extinct, as in “B, his heirs begotten of C” , where dies without having
children , B has a life estate and cannot bar the entail.
The life tenant is entitled to the benefits and profit of the estate; he is entitled to enjoy
the land during the said life time- either by occupying it himself or putting someone else
in –charge.
Life estate can take various forms:
a) Estate for life of the tenant –property is granted “to R for life” This is the simplest
and commonest form of life estate .R enjoys the property for his own lifetime. His
rights terminate on his death and cannot be transferred by will .It is normally
create expressly by a settlement made either by deed or by will
b) Estate pur autre vie –This is an estate for the life of someone other than then
tenant. The person whose life measured the duration of the estate being called
the “cestui que vie “To T for the life of Y. T is the tenant pur autre vie and Y is the
“cestui que vie”. Property is granted “to Dan Cole for the life of May Wilson”
(estate pur autre vie’) This means that estate comes to an end when May dies,
and not when Dan expires. If Dan dies before May, the estate continues until May
dies and the right to enjoy the property until her death will pass to Dan’s
successors under his will or in the case of intestacy according to the rules.
c) Property is granted “to John and Jane King for their lives” This right could be
enjoyed for as long as either John or Jane is alive.

28
 d) Property is granted “to John and Jane King for their joint lives” The interest
created here will last only as long as they are both are alive.

3.) ABSOLUTE, CONDITIONAL DETERMINABLE ESTATES

All the estates described so far differ according to their duration and the event that
leads to their natural termination. A fee title can last indefinitely, the life estate
naturally ends when the measuring life expires and the non-freehold estate ends when
the designated time interval passes. However, all these estate can expire sooner if the
grant specifies that they are subject to some other condition or limitation .When and if
that condition occurs, the estate will terminate even though the condition occurs before
the event that would cause the estate to terminate naturally. An estate that is subject
to a condition is called a “qualified” “base “or “defensible” estate , while an estate that
is not subject to a condition (other than the condition that naturally terminates it base
on the nature of the estate) is called an “absolute,” “unqualified” or “indefeasible”
estate .
In creating an estate, the grantor may make the grant absolute, conditional or
determinable. Thus a grant to B in fee simple, without more creates a fee simple
absolute in favour of B. That same grant could be modified thus: - “provided he does not
cease to be a Christian,” The effect of this is to make the gift a conditional one. This is a
gift subject to a condition subsequent (if it had said “provided he becomes a Muslim; the
gift would be subject to a condition precedent).
In contrast ,a grant to B in fee simple “so long as he remains a Christian” will make the
gift a determinable gift .In the later case , the determining event marks the boundary of
the continuance of the estate, whereas in a conditional gift, the condition is an
independent clause which marks an event, which if it occurs will defeat the estate
before it attains its boundary .Whether a grant gives rise to a determinable or a
conditional estate depends on the words used by the grantor .Words such as “on
condition that”, “provided that” “but if’ “if it happens that” would tend to give rise to a
condition subsequent , while words such as “until” “during” “as long as”, give rise to
determinable gifts.
Another distinction is that in the case of conditional gifts, if the condition occurs, it gives
the grantor, or his successor in the title, a right of re-entry and of determining the estate
–a right of reversion. This can be statute-barred , and then the estate will become
absolute .According to penny Cuick V-C in Re Sharp’s Settlement Trust (1973)Ch.331
(1972) 3 All ER15 this distinction is “extremely artificial” according to porter M.R.in RE

29
KING’S TRUST (1892)29 LR IR 401 also said that it is “ little short of disgraceful to
jurisprudence.”
Estates subject to a determinable or condition subsequent are only created when the
grantor retains the future interest. However with a determinable estate, it lasts only as
long as the condition described in it continues to exist. Once the condition occurs, the
estate automatically ends. On the occurrence of the event, the interest ceases at once
and reverts to the grantor or his successors in title. Like determinable estates, estates
subject to condition subsequent can end when the condition occurs. However,
termination is not automatic but is at the election of the owner of the future interest.
Not all conditions or determining event are acceptable in law, some may or may not be
void, depending on its nature and effect. Again there is a difference between the two;
the courts take a stricter view of conditions
A condition would be void if it imposes a upon alienation “To B in fee simple on
condition that he does not sell the land” In the case of a determinable fee, a restraint
upon alienation is valid .So “to B in fee simple as long as he does not mortgage the land”
is valid. However, conditions, which are said to be in partial restraint of alienation, have
been held to be valid. Thus in RE MACLEAY (1875) LR20 EX186, a testator devised land
to his brother “on condition that he never sells it out of the family. This was held valid,
“to B in fee simple provided he does not sell to anybody but X” is not.
A condition may also be void if it is contrary to public policy. For example, a total
restraint on marriage would be void, but a partial restraint may be valid .In DUSSAN V.
KELLY (1847) 101 Ex. 295. A condition that the grantee should not marry a Roman
Catholic was held to be valid similarly; a restraint form marrying on a particular person is
not void RE BATHE (1925) Ch. 377. However, a condition that a donee should lose his or
her interest is void if the purpose of the gift is to provide for the donee whilst single or
during widowhood. ALLEN V. JACKSON (1876)1 Ch.D 399.
Another circumstances in which a condition would be held void , is when it aims to
present the grantee from taking a public office .RE BEARD( 1908) 1 Ch. 383, decided that
conditions forbbing entry into the army force contravene public interest and are
accordingly void.
A determinable grant is also void if it is contrary to public policy. It is also void if it is
tainted by immorality or illegality, or if it seeks to prevent the land devolving according
to law.

30
A condition may be void if the word used is not sufficiently certain. SIFTON V SIFTON
[1938] AC 656 Here a grant, to C “as long as she resides in Canada” was held void for
uncertainty.
If the condition is void, then it is struck out, leaving the grant fee from the condition, but
In the case of a determinable gift, if the determining event is void, then the whole grant
is void.
If it becomes impossible for the condition specified to occur or if it simple does not
occur, the gift will become absolute and indefeasible TAYTOR V CUMMINGS (???). In this
case , a testator devised property to his daughter, her heirs and assigns for life , but in
the event of her dying before marriage or before the age of 21 , then the gift was to pass
on to certain trusts . The daughter died after the age of 21, but still unmarried. IT was
held that the gift had become absolute, and that it was immaterial that she had not
married before her death.
In the case of life estates, the courts have tended to construe words that would
normally have created a conditional estate as creating a determinable one.
Examples of determinable estate
 To Y and his heirs so long as the land is farmed-fee simple determinable. The
moment the land is no longer farmed, the estate ends.
 To U and heirs of his body so long as the land is farmed –fee tail determinable –
estate ends when the land is no longer farmed or when there are no lineal heirs,
whichever occurs first.
 To I for life so long as the land is farmed – determinable life estate – ends when I
dies or stops farming, whichever occurs first.
 To O for 15 years so long as the land is farmed –determinable term of years –
ends at the end of 15 years unless O stops farming before then.

Examples of estates subject to condition subsequent

 To P and his heirs, but if the land is used for a farm, then the grantor may re-
enter and repossess –fee simple subject to a condition subsequent.
 To A and the heirs of her body , but if the land is used for a farm , then the
grantor may re-enter and repossess –fee tail subject to a condition subsequent.
 To S for life but if the land is used for a farm, and then the grantor may re-en-
enter and repossess –life estate subject to a condition subsequent.

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  To D for 15 years but if the land is used for a farm then the grantor may re-enter
and repossess – term of years subject to a condition subsequent

7. MISCELLANEOUS
Another feature of the doctrine of estate is that it is possible for different estates to co-
exist in the same piece of land. If A owns in fee simple but makes a grant to B for life, A
retains a reversionary interest – a fee simple in reversion. If A gives the land to B for life
and then to C for thirty years ,then C has for the life time of B, a feature interest in
remainder. If A adds “ and then to D ,” it will be presumed that the fee simple in
remainder will vest in D at a future time .B’s interest is present estate or an estate in
possession because he is now the only person with a present right to the enjoyment of
the property .
Estates can either be in possession, or in remainder. An estate in possession is a present
estate, which gives the grantee the right to immediate enjoyment of the land .An estate
in reversion is a future estate and the right to enjoyment of the land is postponed until
the exhaustion of the immediate prior estate. Thus, the holder has vested interest, but
not vested in possession. If A had said that the land was given “to B for life, but if B
marries Y or joins the APC party, to C for thirty years,” then C has contingent interest, or
spes succesionis-a hope of succeeding.
Thus successive interests can be created .The grant is here called a settlement .In
theory; there is no limit to the number of estates or successive interests that can exist
simultaneously in the same piece of land.
8.) ESTATE OF LESS THAN FREEHOLD
These are estate of exactly determinable length .Originally this was considered a chattel,
an interest in personam, but came to be a right in property, inferior to all freehold
estates, even the life estate. Thus although it is certain that a life will not endure as long
as 999 years yet it is not known when it will end. Therefore a less then freehold estate
must be certain or capable of being determined.
The most prominent kind is the leasehold. There are also periodic tenancies, leases from
year to year, monthly tenancies and quarterly tenancies.
Two other tenancies exist, which it is not sure are interests in land. These are tenancies
at will and at sufferance. It is said that though these are often treated with other
leasehold estates and involve tenure, according to Megarry and Wade, they involve no
definite estate.

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A tenant at will has the landlord’s permission, but can be given notice at any time,
whether he pays rent or not.
In the case of a tenancy at sufferance, there is no relationship of landlord and tenant.
The tenant stays without the landlord’s consent, such as a person whose lease runs out
and does not move out.
9. EQUITABLE EASTATE
A. THE DEVELOPMENT OF USES
In parallel with Common Law estates there grew up separate body of rules developed by
the lord Chancellor in England and later by the Court of Chancery. This body of rules
became known as the principles of equity. In accordance with the Courts Act No 31 of
1965, they form part of the received laws of Sierra Leone. Unlike the position in England
where common law and equity were administered separately until the fusion provided
for by the administration of the Judicature Act of 1875, in Sierra Leone the courts of
superior judicature have always had jurisdiction to apply both concurrently.
The most important contribution of equity in Sierra Leone was that of trust principles.
The original form of trust was the “Use”. The word “Use” is derived from the latin word
“opus” If one deals with land “ad opus” he deals with it “on behalf of “ another.. At
common law the tenant D would transfer his land by conveyance to F, who undertook
to hold it on behalf of or to the use of D. D was known as the “cetui que use” and F was
known as the “feoffee” to use. The legal effect at common law of putting land in use was
to cut off the cetui que use in the eyes of the law from all connection with the land. The
cetui que use was deprived of all common law rights over the land. If the feoffee failed
to carry out the directions imposed upon them or if they deliberately alienated the land
for their own purposes there was common law action which could render them liable.
The common law refused to recognize the purposes for which the use was created. Thus
the rights of the beneficiary ware not recognized or protected by the common law.
Around 1400, the Lord Chancellor intervened on behalf of the cetui que use. In
accordance with the principle that equity acts in personam, he proceeded against the
foeffee who disregarded the moral rights of the cxetui que use. He did so by compelling
the Feoffee to hold the land as a matter of conscience for the benefit of the cetui que
use the person rightly entitled to it. This intervention led to the introduction of dual
ownership of land into the English legal system. The Lord Chancellor insisted that the
feoffee was the owner at common law but the cetui que use was the true owner by
equity. This how distinction was made between equitable and legal interest in land and
thus the development of legal and equitable estate.
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For instance if S transferred property to A for the use of and benefit of B, A being the
owner at law, could convey the land to C and B would have no remedy at law. Since A’s
ownership was recognized at common law ansd since B’s rights were also protected by
the courts of chancery in their equitable jurisdiction, two types of estates grew up, legal
and equitable. In its intervention equity followed exactly the footsteps of the law as it
treated the rights of the beneficiary as closely analogous to those of the legal owner.
Thus is the trustee had a legal fee simple, the beneficiary would equally so have the
equitable one. The creation of parallel estates was carried on into the creation of real
successive interest or future interests. Equitable interests also exist in possession and in
remainder.
B. THE STATUTE OF USES 1835
The device of the use was detrimental to the Lords of the English feudal system for a
variety of reasons. It caused them to lose many of their feudal dues. The king in
particular suffered from the loss of revenue. Accordingly, King Henry VIII had Parliament
enact the Statute of Uses in 1835. Stripped of its essentials, the Act provides “ Where
any person stands …seised of lands… to the use… of any other person… or body politic…
such person and body politic…. Shall from henceforth stand… seised ..of … such like
estates as they had…in use” This means that the Statute gives the legal interest to the
person who formerly had the equitable. Thus it gets rid of the use which is why we say
that the Statute executes the use.
Section 1 of the Statute provided that where any person or persons are seised of any
hereditament to the use , confidence or trust of any other person or person or any body
politic the latter person or persons or body politic shall be deemed and adjudged in
lawful Seisin, estate and possession of the hereditament for the life estate as they had
in the use, confidence or trust. The effect of the statute was to execute all uses to which
it applied taking the legal estate out of the feoffee to the uses and converting the
equitable interests of the cetui que use into the corresponding legal estate. If the
freehold land was conveyed “to A and his heirs to the use of B and his heirs” the statute
executed the use with the result that A was divested of all interest in the land and B’s
equitable fee simple becomes legal. B was by statute deemed to be the in actual
possession of the land even though he never entered upon the land or saw it. The
statute brought about two results. Firstly it executed the use. It turned B’s equitable
estate into a legal estate carrying common law Seisin. Secondly, the common law Seisin
which would usually have been vested in A as a consequence of the conveyance was
taken away from him entirely.

34
The Statute did not however enlarge the interest of the cetui que use.but merely made
legal what was formerly equitable. If for instance G held land in fee simple to the use of
H for life, the statute did not give to H the fee simple but transformed his life interest
from one valid only in equity to one valid at law.
If J make a grant “to K and his heirs for the use of L and her heirs”, literally, the
conveyance gave Seisin to K for the use of L. Despite the language the statute executes
the use and gives the Seisin to L. Instead of K having the legal fee simple and L having
the equitable fee simple, L has a legal fee simple.
Where Z conveys “to X and his heirs for the use of C for ten years” C’s equitable use for
a term of years becomes a legal term of years. The statute does not require the cetui
que use to have a freehold.
Also where V conveys “to B for ten years for the use of N for ten years” the statute does
not apply because B is not seised to the use of N. The trustee must have a freehold
estate even though the cetui que use need not.
FUTURE INTERESTS
Every estate in land is either resent-entiting its owner to immediate possession of the
land-or future-entiting its owner to possession in the future. [A future interest in land is
an interest, which confers right to the enjoyment of the land at a future time. It could
also be defined as interest in the property which the owner holds now, but beneficial
enjoyment is postponed until sometime in the future]
Basically there are three types of future interests: - Reversion, Remainder and Executory
interest.
a. REVERSION

[Where the owner of a fee simple makes a grant without exhausting all his interest in
the land, then, he is entitled to a reversion, e.g. a grant by A (a fee simple owner) to B
for life the death of B, possession of the land will revert to A or his successors in title.]
During on the continuance of B’s estate, what is left of A’s reversion. It is called a future
interest, because A will only become entitled to possession again on the expiration of
B’s prion estate, which is known as a particular estate. The reversion is a present
subsisting interest which A may dispose of either inters vivos or by will and is also
transmissible to his next-of-kin, should he die intestate.
Accounting to the authors of practical Approach to Land-Judith-Mackenne and Mary
Phillips, ‘’reversion’’ arises where a grantor gives away any estate or series of estates

35
which will last for shorter time than his own estate. If the owner of land grants a present
estate (or estates) legally smaller than the estate he had, i.e. one which will not endure
as long as his own estate, he has a reversion to make up the difference.
A, holding in fee simple conveyed ‘’to B for life’’ A has a reversion in the fee simple,
which will give her or her heir and devisee the land when B dies and his life estate ends.
A, holding a fee simple conveyed ‘’ to B and the heirs of his body’’. The fee tail
conveyed to B is
legally smaller than the fee simple A had. Therefore, A now has a reversion in fee simple
when there is a failure of lineal descendants in B’s line, the land will return to A or her
heirs or devisees and will be held by them in fee simple.
No words are necessary to create to reversion in the grantor. He has a reversion simple
because he has not given away his entire estate, but only an estate smaller than what
he had. A reversion is also a vested interest. The grantor, or if he is dead his
representatives, stand ready to receive the land as soon as the particular estate
determines
b. REMAINDER

This arise when a fee simple owner grant a particular estate to one person, and in the
same instrument, grant another person interest in the same land, to take effect when
the particular estate ends. The estate, which follows a particular estate, is called a
remainder. A remainder is the estate created when a grantor who, having granted away
a particular estate, by the same instrument grant to another person an estate in the
same land limited to commence after the particular estate. Thus ‘’to Ami for and
remainder to Sao in fee simple’’
The grant created to B and C thus ‘’ A to B for life, then to C in tail’’ take immediate
effect and they can disposed of them, but until B’s life estate expires C can derive no
benefit from the land. The remainder does not fall into possession until the expiration of
a particular estate.
Whenever the grantor would have retained a reversion because he conveyed a smaller
estate than he owned, he may create a future interest in another person comparable in
size to or smaller than his reversion. Such future interest in the third person in called a
remainder. It can be a remainder in fee simple, in tail or in a life estate, depending on
what that the grantor had and what he conveyed.

36
RULES RELATING TO THE CREATION OF REMAINDERS AT COMMON LAW
1. There can be no remainder or reversion after the limitation of a fee simple, e.g. ‘’
to Olu in fee simple, remainder to Aisha.’’ The grant to Aisha is void as the gift to
Olu in fee simple has absolutely exhausted the estate and there is nothing left to
be given to Aisha. An exception to this rule is one after the base fee, since a
remainder could exist after a base fee.
2. A remainder is void unless when it was created a particular estate of freehold
created by the same instrument supported it. A remainder cannot spring. Thus if
a grant of land was made ‘’to Zubairu’s first son and heirs of his body ‘’ and
Zubairu had no son at that
3. Time of grant, the grant was void. The reason was that the common law required
that the seisin should pass out of the grantor into the grantee at the moment
when the estate of freehold was created.
4. A remainder is void if it is limited to vest in possession before the determination
of the immediate prior estate e.g. to B for life, but she changes her religion to C
for life. At common law, the right of re-entry on the occurrence of a condition
could only be exercised by the grantor or his successors in title, not by a
remainder man. (In equity a springing use)
5. The remainder is void if it was in such a way that it did not actually vest in
possession during the continuance of a particular life estate, or immediately after
its determination, in other words, it is a contingent remainder.
6. Abeyance:- ‘’to B for life with remainder one year after B’s death to C.’’ this was
void (in equity, a shifting use). One of the strictest rules of common law was that
must never be an abeyance of seisin. If there is any abeyance is a nullity and the
estate remains vested in the grantor.

Though equity followed the law, here equity departed from the common law, and
failed to observe the rules listed. Equity could create the entire remainder void by
making them become affected by the rules. The effect of the statute of uses was that
the law followed equity. After this and the statute of Wills 140 it became possible to
create future interests which were legal estates, without them being affected by the
rules. There became known as legal executor interests.
Future trust can still be trusted. All remainders in England fell in the category of
future trusts. All legal remainders and legal Executory interest that had been created

37
 prior to 1926 were automatically convertible interest; the position is totally different
in Sierra Leone.
The common law rules relating to creation of remainders still apply. However it is
doubtful whether the statute of Uses 1535, which made it possible for springing and
shifting Executory, uses to exist at land, applies. Though it was passed prior to 1880
it is not all statutes that apply to Sierra Leone. The statutes were enacted to cater for
conditions peculiar to the feudal system in medieval in England. The tenure system
was introduction in a much modified version in Sierra Leone. The situation of this
uses does not arise here.
In any event all kind of trust can be created in Sierra Leone. It is not necessary to use
the expression ‘’to and to the use’’ of ‘’in trust for’’ which expression came to be
used in England after the enactment of the Statute of Uses.
Thus whereas legal executor interest may not exist under the received English law in
Sierra Leone future trusts may still be created. Executor Y devisees i.e. legal
remainder and legal executor Y interests under a will could only subsist in a situation
where a testator expressly devises land to his executor in trust for his devises. Thus a
beneficiary takes directly in Sierra Leone. But future trust can exist in Sierra Leone
where it can be created either inter vivos or by will. This rule relating to remainder
can still be applicable in Sierra Leone. They must be expressly created in trust.
c. EXECUTORY INTERESTS

There have been described by Megarry and Wade as a special class of future interests
which derived from the Statute of Uses 1535 and a Statute of Wills Act 1540. These
two were enacted to circumvent the restrictions in the creation of future interests by
the common law.
d. THE DIFFERENCES BETWEEN VESTED AND CONTIGENT INTERESTS

An interest in land whether in possession or a future interest (in reversion or remainder)

may be vested or contingent. An interest is said to be vested if it is not contingent.
An interest is contingent in the following circumstances:-
i. When the identity of the beneficiary is unknown at the time the gift takes effect,
e.g. ‘’to ‘’A’’ for life, then to my first son to be called to the bar’’ here, the
remainder is contingent because it is not certain which of the sons would be
called first to the bar if any at all.

38
 ii. A gift is contingent when a condition attached to the grant remains unfuilled. E.g.
‘’to my son B if he is called to the Bar’’.

Thus, it become clear that for a future interest to be vested the identity of the
beneficiary must be known and any condition attached must have been fulfilled.
According to Cheshire and Burn an interest is vested where (a) the person (s) entitled to
take are ascertained and (d) the interest is ready to take effect in possession forthwith,
subject only to the prior interest.
There are also two rules that will render a gift contingent. The first is that any gift which
follows a gift of a contingent fee simples itself contingent. ‘’To B for life, with remainder
to the first child of C to marry in fee simple, but if C has no child who marries, then to D
in fee simple.’’
Secondly, a gift that follows a conditional or determinable fee simple is itself
contingent:- ‘’to B in fee simple on condition that he does change his religion’’, or’’to B
in fee simple until he changes his religion, remainder to C’’.
In PEARSON V. IRC (1980) 2 ALL ER 479 at 484(1981) AC 753 at 772 Viscount Dilhorne
summed up the distinction between vested and contingent remainder as follows: ‘’In
preston; Treatise on Estates’’ an estate in possession is stated to be one which gives ‘’a
present right of present enjoyment.’’ This was contracted with an estate in remainder,
which it was said gave’’ a right of future enjoyment.’’ In Fearne on Contingent
Remainders, it was said that an estate is vested when there is an immediate fixed right
of present or future enjoyment; that an estate is vested in possession when there exist a
right of present enjoyment; that an estate is vested in interest when there is a present
fixed right of future enjoyment; and that an estate is contingent when a right of
enjoyments is to accrue on an event which is dubious and uncertain.’’
e. THE SIGNIFICANCE THE DIFFERENCE BETWEEN CONTINGENT AND VESTED
INTERESTS.

A vested interest passes under a will or intestacy whereas a contingent interest does not
pass unless the condition is not relating to the grantee personally. If an interest is
contingent, it is a subject to the rule against perpetuities. For the purpose of the rule an
interest is said to be contingent not only in the circumstances identified, but also when
the size of the beneficiaries’ share is uncertain ‘’To all the children of B born or hereafter
to be born, B being alive and already with two children, C and D.’’ the gift is contingent
not because the identity of two of the beneficiaries is known and there is no condition

39
 to be fulfilled but until B dies it will be impossible to know the size of the interest to be
held by each beneficiary.
f. REVERSIONS AND REMAINDERS

Reversion
‘’To Bob for life’’ means the property reverts back to the grantor (or his heirs) upon
the death of Bob. This is called a reversion and its also an interest that can be alienated
(i.e. bought or sold or conveyed by will). It differs from remainder which, upon the
failure or termination of, for example, a life estate, the land stays away from the grantor
and goes to the other third party.
Reversions are also immune from the rule against perpetuities because they are vested.
Remainder
‘’ to Bob for life and after his death to Susan in fee simple’’ create a remainder
because, upon the death of Bob, the land is transferred to Susan. A remainder is future
interest but a very real one. For example, it can be bought and sold even before it
comes to term. In the above example, Bob holds a life estate and Susan owns what can
be called’’ a fee simple remainder’’
A remainder is said to differ from a reversion in that the reversion in that the reversion
does not depend on any act of the parties but it takes effect by operation of the law. For
remainder attached to gifts given by will but by intervivos transfer (i.e. the giver is alive),
there are four rules that apply:
1. An estate of freehold is void if it is designed to take effect in the future, unless it I
supported by a particular estate created by the same instrument.

A conveyance to take effect on There is an unacceptable gap of 25 days here. The gift must be
March 30, 1998 which reads ‘’To supported by a ‘’prior particular estate.’’ If there is a gap of even
Adam on April 25, 1998’’ one day between the transfer and possession, the grant is void. A
remainder cannot be allowed to just suddenly spring up at some
point in the future.
‘’To Adam for life, remainder to This is valid because there is no gap, Bob taking when A dies.
Bob and his heirs’’
Where Adam is not yet 21, ‘’To Again, an unacceptable gap of seisin
Adam in fee simple at age 21’’
Adam being childless at the time No prior to particular estate to support remainder to the first son.
of the grant and: ‘’To Adam’s

40
first son.’’

2. A legal contingent remainder is void unless invest at or before the termination of

the particular estate.

‘’To Adam for life, remainder to Void because the marriage requirement means that Barbara’s
Barbara provided she remainders interest is uncertain since she might not be married by the time of
after Adams death.’’ Adam’s death. Again, a gap of possession or ‘’seisin’’.

‘’ To Adam for life, remainder to This solves the problem by closing any possible gap. There is an
Barbara provided she marries explicit reversion to the grantor (or his heirs) if Barbara is not
before Adam’s death.’’ married at the time of Adam’s death.

‘’To Adam for life, with a This is known as a ‘’class gift’’ and all those children having not
remainder to all of Adam’s reached at 21 by the time of Adam’s death will be cut off. In other
children who reach 21’’ words, the class closes at the death of the life tenant (Adam). This
sub rule is supported by a case known as Festing v. Allen

3. A remainder is void if it is take effect by cutting short a prior estate.

‘’To Adam for life, provided he This violates the rule. The common law only lets the original
does not remarry, but if he grantor re-enter this way under this way under the rules of a
does, then to Barbara’’ Defeasible interest/condition subsequent, explained below.

‘’To Adam for life or until he This is determinable interest (life estate) which does not violate the
remarries, and then to rule.
Barbara’’

4. A remainder after a fee simple is void

‘’To Adam in fee simple,
remainder to Barbara in fee
simple.’’
‘’To Adam in fee simple but
should the house ever cease to
be a dwelling house, then to
Barbara in fee simple.
The remainder to Barbara is void and is of no effect. Once a total
and absolute estate, a fee simple, has been conveyed, there is
nothing left to give to Barbara.
Void as violating rule no.4. Once a fee simple estate is granted, the
grantor is out of the picture and can no longer dictate.

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DEFEASIBLE v. DETERMINABLE INTERESTS

i. Defeasible interest/Condition subsequent

Also known as the ‘’right of entry for condition broken,’’ this interest resembles a
reverter in such as it is also the grantor that re-takes in this case, except that this is a
contingent interest and not a vested one. It is not only conditional or ‘’contingent’’ on
the condition being broken but it is contingent on re-entry by the grantor or his/her
heirs.
‘’To the United Church in fee simple, on the condition that if the land shall no longer be
needed for church purposes, my estate may re-enter.’’ A qualification is attached to the
gift which, if the event happens or if the beneficiary does or does not do something
specified, the interest is ‘’defeated.’’ Thus, this is a ‘’Defeasible interest’’; a fee simple
that can be defeated upon the occurrence of a specific event.
A Defeasible interest is also referred to as a condition subsequent upon which, if it
should occur, the fee simple become voidable and the land may be reclaimed by the
grantor or his heirs when they er-enter the land. The key wards are ‘’may’’ as the
grantor (or his heirs) do not have to re-enter. Until re-enter occurs, the estate to the
grantee (the church in the above example) continues. This differs substantially with the
determinable interest, described below, where the fee simple estate ends completely
when the event occurs. Also, some provisions do not allow the right to er-enter to linger
on forever.
If a condition subsequent is voided, the estate then becomes absolute existing as if the
condition had never been imposed. Note also that a full estate is given. One legal expert
compared the condition subsequent to the determinable interest by saying the former is
a twelve inch ruler whereas the latter is a twelve inch ruler with an inch lopped off.
The court will normally interpret a conveyance to be a defeasible interests/condition
subsequent if the following words are used.
‘’on condition that’’
‘’but if’’
‘’provided that’’, and
‘’if it happens that’’
ii. Determinable Interest

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‘’To the United Church in fee simple until the land is no longer needed for church
purposes’’. Here, the words mark the utmost time of an estate rather than, as in the
case of a defeasible fee simple, making an event which, if it takes place, could defeat the
estate if the grantor (or his heirs) re-enter. A determinable fee creates an estate and
then says clearly how long it is to last. The terminating event is part and parcel of the
estate granted. Similar to a defeasible interest except that determinable interest have a
time-based or chronological connotation. A reversion (see above) is this case, to the
grantor or his heirs.
This important aspect of the fee simple determinable is that the fee simple to the
church, to use the above example, automatically ends when the ‘’land is no longer
needed for church purpose.’’ In lawyer’s word: ‘’A determinable interest comes to an
end automatically upon the occurrence of the terminating event.’’ It is like a time bomb
wrapped around the estate, detonating when the event occurs.
This differs substantially from the normal fee simple, which goes on forever until one of
the owners die without a will or heirs, and from the defeasible or condition subsequent
interest (discussed above) which is only voidable upon breach of the condition, voided
once the grantor or his heirs re-enter the land.
Words which the courts have held to mean a determinable interest include:
‘’while’’
‘’during’’
‘’so long as’’ and
‘’until’’
There are enormous judicial consequences to a court finding an interest to be ‘’
defeasible’’ or ‘’determinable.’’ If the condition is a determinable interest and found to
be void (e.g. against public policy or uncertain), the entire gift fails.
Words in a conveyance, such as a will, are not always clear and the differences can be
subtle. One author suggests that the words ‘’as long as she continues to live in Canada’’
or ‘’but only so long as’’ could be interpreted either way.
g. VESTED v.CONTINGENT REMAINDERS

‘’An estate is vested in interest when there is a present fixed right in future enjoyment.
An estate is contingent when a right of enjoyment is to accrue on an event which is
dubious and uncertain.’’{Pearson v. IRC (1981) AC 753.}

43
All future interest are either vested or contingent. The owner of a vested interest is
guaranteed his estate; he or she has nothing to do but wait. So a vested interest is more
valuable than a contingent interest. Under common law, a contingent interest was not
something you could sell, since it may transpire to be worthless, if the condition never
occurs. But many stats now have legislation which allows such interests to be sold,
caveat emptor.
i. Vested Interest

All reversion are necessary vested, by its very nature as the grantor stands ready to
reabsorb the estate.
An interest with no condition or limitation, not even the determination of the
receipient, except the natural end of the present estate, are called ‘’vested interest’’.
The estate is fixed and certain either immediately of in the future. There are no ‘’ifs’’ or
‘’buts’’ about it. The two conditions of a vested interest are, therefore:
1. The person(s) entitled to take is ascertained; and
2. The interest is ready –to-go subject only to the termination of prior estate.

When in boubt between a vested or contingent interest, as far as concern land, court
prefer vested interests so as to leave the estate uncertain. This is a rebuttable
presumption.
A remainder which is subject to a condition subsequent is called a ‘’vested remainder.’’
‘’To Adam for life remainder to The classic example of a vested interest, Adam vested
Barbara.’’ in possession, Barbara vested in interest.
‘’To Adam for life with remainder to Since Adam’s death is not a ‘’dubious and uncertain’’
Barbara for life with remainder to event, but a certainty, Barbara’s interest is vested but
Charlie in fee simple if he survive Charlie’s is obviously contingent.
Adam.’’

Contingent Interest or Condition precedent

Contingent interests are subject to the rule against perpetuities.
An interest is said to be contingent if vesting is delayed until some condition precedent
occurs. A condition precedent suspends an interest from vesting unless or until a certain
event takes place such as leaving a house to ‘’the first person to place flowers on my
grave.’’ A remainder, for example can be either vested (‘’To Sam for life with remainder
to Melanie’s oldest child living at her death’’)

44
The validity of the condition could have major impacts on the conveyance. If a real
property conveyance is attached to a condition precedent which is void, the entire
conveyance is void (the law is different if the property is not real-estate).
Where a will is ambiguous, there is a presumption that the condition subsequent and
not a condition precedent.
‘’To Adam’s oldest son living at his death’’ This is a contingent interest.
‘’To the survivor of Barbara or Charlie’’ This is a contingent interest.
‘’To Barbara, a child, if she attains the age of This is a contingent interest.
21.’’
‘’To Barbara if she becomes a member of the This is a contingent interest.
Law society.’’

POBULIC POLICY AND UNCERTAINTY

Conditions are themselves subject to some basic rule:
Conditions which operate as absolute restrictions on the alienation of the fee simple
estate are void. The court’s guideline is ‘’where the condition takes away the whole
power of alienation substantially’’ (Re McLeay 1875 L. R. 20). A condition which forbids
sale to the whole world expect to, or without the permission of a specific person, is void
as an absolute restraint on alienation;
A restraint that is partial, such as disallowing leasing, is valid;
Restrictions based on first marriage appear to be void on grounds of public policy but,
oddly, not so for second marriages.
A condition preventing a beneficiary of a will from challenging the will through litigation
is void as contrary to public policy,
The law of contract governs most of the other validity of conditions such as voidances
for uncertainty or impossibility. The test for uncertainty in the case of conditions
subsequent is that the beneficiary of the estate must be able to know, clearly, what
act(s) would defeat the held (Sifton vs. Sifton (1938) A. C. 656). It is much more difficult
to have a condition precedent held void for uncertainty as the courts will be satisfied if
the conditions is capable of ‘’some meaning’'
MORTGAGE LAW
A mortgage is a security interest in real property held by a lender as a security for a
debt, usually a loan of money. A mortgage in itself is not a debt; it is the lender’s
45
security for the debt. It is a transfer of an interest in land (or the equivalent) from the
owner to the mortgage lender, on the condition that this interest will be returned to
the owner when the terms of the mortgage have been satisfied or performed. In other
words, the mortgage is a security for the loan that the lender makes to the borrower.

The word is a French law term meaning “dead pledge” , originally only referring to the
Welsh mortgage but in the latter Middle Ages was applied to all gages and
reinterpreted to mean that the pledge ends (dies) either when the obligation is fulfilled
or the property is taken through foreclosure.

In most jurisdictions, mortgages are strongly associated with loans secured on real
estate rather than on other property (such as ships) and in some jurisdictions only land
may be mortgaged. A mortgage is the standard method by which individuals and
businesses can purchase real estate without the need to pay the full value immediately
from their own resources.

Legal systems in different countries, while having some concepts in common, employ
different terminology. However, in general, a mortgage of property involves the
following parties. The borrower, known as the mortgagor, gives the mortgage to the
lender, known as the mortgagee.

Lender/Mortgagee

A mortgage lender is an investor that lends money secured by a mortgage on real

estate. In today’s world, most lenders sell the loans they write on the secondary
mortgage market. When they sell the mortgage, they earn revenue called Service
Release Premium. Typically, the purpose of the loan is for the borrower to purchase
that same real estate. As the mortgagee, the lender has the right to sell the property to
pay off the loan if the borrower fails to pay.

The mortgage runs with the loan, so even if the borrower transfers the property to
someone else, the mortgagee still has the right to sell it if the borrower fails to pay off
the loan.

So that a buyer cannot unwittingly buy property subject to a mortgage, mortgages are
registered or recorded against the title with a government office, as a public record.
The borrower has the right to have the mortgagedischarged from the title once the
debt is paid.

Borrower/Mortgagor

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A mortgagor is the borrower in the mortgage – he owes the obligation secured by the
mortgage. Generally, the debtor must meet the conditions of the underlying loan or
other obligations and the conditions of the mortgage. Otherwise, the debtor usually
runs the risk of foreclosure of the mortgage by the creditor to recover the debt.
Typically, the debtor will be the individual homeowner, landlord, or businesses who are
purchasing their property by way of loan.

Other Participants

Because of the complicatedlegal change, or conveyance of the property, one or both of

the main participants are likely to require legal representation. The agent used for
conveyancing varies based on the jurisdiction. In the English speaking world, this means
either a general legal practitioner, i.e. an attorney or solicitor, or in jurisdictions
influenced by English law, including South Africa, a (licensed) conveyanser. In the
United States, real estate agents are the most common. In civil law jurisdictions
conveyancing in handled by civil law notaries.

Because of the complex nature of many markets the debtor may approach a mortgage
broker or financial adviser to help him or her source an appropriate creditor, typically
by finding the most competitive loan.

Legal Aspects

Mortgages may be legal or equitable. Furthermore, a mortgage may take one of a

number of different legal structures, the availability of which will depend on the
jurisdiction under which the mortgage is made. Common law jurisdictions have evolved
two main forms of mortgage: the mortgage by demise and the mortgage by legal
charge.

Mortgage by Demise

In a mortgage by demise, the mortgagee (the lender) becomes the owner of the
mortgage property until the loan is repaid or other mortgage obligation fulfilled in full,
a process known as “redemption”. The kind of mortgage takes the form of a
conveyance of the property to the creditor, with a condition that the property will be
returned on redemption.

Mortgages by demise were the original form of mortgage, and continued to be used in
many jurisdictions, and in a small minority of states in the United States. Many other
common law jurisdictions have either abolished or minimized the use of the mortgage

47
by demise. For example, in England and Wales this type of mortgage is no longer
available in relation to registered interests in land, by virtue of Section 23 of the Land
Registration Act 2002 (though it continues to be available for unregistered interests).

Mortgage by Legal Charge

In a mortgage by legal charge or technically “a charge by deed expressed to be by way

of legal mortgage” the debtor remains the legal owner of the property, but the creditor
gains sufficient rights over it to enable them to enforce their security, such as a right to
take possession of the property or sell it.

To protect the lender, a mortgage by legal charge is usually recorded in a public

register. Since mortgage debt is often the largest debt owned by the debtor, banks and
other mortgage lender run title research of the real estate property to make certain
that there are no mortgages already registered on the debtor’s property which might
have higher priority. Tax liens, in some cases, will come ahead of mortgages. For this
reason, if a borrower has delinquent property taxes, the bank will often pay them to
prevent the lien holder from foreclosing and wiping out the mortgage.

This type of mortgage is most common in the United States and, since the Law of
Property Act of 1925, it has been the usual form of mortgage in England and Wales (it is
now the only form of registered interest in land – see above)

Equitable Mortgage

Equitable mortgages don’t fit the criteria for a legal mortgage, but are considered
mortgages under equity (in the interest of justice) because money was lent and security
was promised. This could arise because of procedural or paperwork issue. Based on this
definition, there are numerous situations which could lead to an equitable mortgage. As
of 1961, English law requires the consent of the court before the equitable mortgagee
was allowed to sell. When the borrower deposits a title deed with the lender, it has
historically created an equitable mortgage in England, but the creation an equitable
mortgage by such process has been less certain in the United States.

In an equitable mortgage the lender is secured by taking possession of all the original
title documents of the property and by borrowers signing a Memorandum of Deposite
of Title Deed (MODTD). This document is an undertaking by the borrower that he/she
has deposited the title document with the bank with his own wish and will, in order to
secure the financing obtained from the bank.

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Foreclosure and Non-Recourse Lending

In most jurisdictions, a lender may foreclose on the mortgaged property if certain

conditions – principally. Non-payment of the mortgage loan-apply. Subjects to local
legal requirements, the property may then be sold. Any amounts received from the sale
(net of costs) are applied to the original debt.

In some jurisdictions, mainly in the United States mortgage loans are non-recourse
loans: if the fund recouped from sale of the mortgaged property is insufficient to cover
the outstanding debt, the lender may not have recourse to the borrower after
foreclosure. In other jurisdictions, the borrower remains responsible for any remaining
debt, through a deficiency judgment. In some jurisdictions, first mortgages are non-
recourse loans, but second and subsequent ones are recourse loans.

Specific procedure for the foreclosure and sale of the mortgaged property almost
always apply, and may be tightly regulated by the relevant government. In some
jurisdictions, foreclosure and sale can occur quite rapidly, while in others, foreclosure
may take many months or even years. In many countries, the ability of lenders to
foreclose is extremely limited, and mortgage market development has been notably
slower.

Assignment

Mortgages, along with the mortgage note, may be assigned to other parties. Some
jurisdictions hold that the assignment of the note implies the assignment of the
mortgage, while others contend it only creates an equitable right.

READ:

1. Home Mortgage Finance Act 2009 (Act No. 4 Of 2009)

2. Conveyancing And Law Of Property Act 1881

LEASES AND LICENCES

LEASE

A lease is a document creating an interest in land for a fixed period of certain duration,
usually in consideration of the payment for rent. A grantor of a lease is known as a
leasor and the person to whom it is granted is leasee. In the case of tenancy, there is a
landlord and tenant. On the grant of the lease, the leasor retains the reversion, which
he may assign. The lease may also assign the leasee.

49
The term ‘lease’ usually indicates an interest lasting for a longer period of time,
whereas the term ‘tenancy’ is normally used for interest lasting for a relatively short
period only. A lease is sometimes also referred to as‘demise’ and a premise in question
referred to as a ‘demise premise’. The interest created by the grant of a lease is
variously called a demise lease or term of years. It can also be called a tenancy, but this
is usually used for shorter durations. The document creating the interest is also called a
lease.

A sub tenancy occurs where a tenant gives a term shorter than that which he himself
holds. The original lease becomes known as the head lease, and the leasor as the head
leasor, whereas the grantee of the sub tenancy is known as the sub leasee, or under
tenant, where the leasee as tenant transfer the whole of his unexpired interest to a
third party. This is known as an assignment and the third party is known as the assignor.

A lease is capable of subsisting as the legal estate but it must be created in the manner
required by the law. If it is not created in accordance with the law, it is an equitable
interest.

In Sierra Leone, the recovered English law continues to apply with little or no alteration
by our local legislature. The local enactment includes Rent Restriction Act Cat 52 and
the Summary Ejectment Act Cap 49 both of the laws of Sierra Leone 1960. The laws
regarding leases and tenancies in Sierra Leone are based in English Common law and
Contract law.

CHARACTERISTICS OF A LEASE

a.) Exclusive Possession

This may be defined as a grant of a right of exclusive possession of a defined piece of

land or other property, for a fixed maximum period of time, or series of fixed periods of
time, with the intention that the grantee should have an estate in land. The lease may
thus exclude any other person, even the leasor. Where the grantor maintains some
degree of control over the property, or has the right to enter at will, or where the
grantee has no real right of control over the property, but only the right to use it, then
his possession is not exclusive, and he does not hold an interest in land. A lodger or long
term paying guest is not a tenant. A long term restriction on the use of the property will
not prevent the lease from coming into existence, not with the right reserved by the
grantor of entering the property.

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It should be noted that while exclusive possession is a necessary characteristic of a
lease, it does not serve to distinguish it from other similar interests. It does not mean
that whenever a person is let into exclusive possession he necessarily becomes a lease.
A tenancy at will does not satisfy this characteristic of a lease. In essence it is a license,
which does not create an estate, but is nearly a personal permission to occupy the land,
without which the occupation would be a trespass. In certain circumstances a tenancy
at will may give rise to an estate, unlike a license.

b.) Defined period

Though a lease may be limited to endure for any specified numbers of years, however
many, it cannot be limited in perpetuity;the term must be for a definite period in the
sense that it must have a certain beginning and a certain ending. It is open to the
parties to agree that the lease will commence upon the occurrence of an uncertain
event. In SWIFT V MACBEAN (1942) 1 ALL ER 126, a lease was to commence upon the
declaration of war by Great Britain and in BRILLIANT V MICHAEL (1945) 1 ALL ER 121,
the lease was to commence “upon possession of the premises becoming vacant”

The date upon which a lease is to terminate is generally expressed specifically. It is

sufficient if made to depend upon some uncertain event occurs before the lease take
effect. A lease is void if the date of termination remains uncertain after it has taken
effect. In LACE V. CHANDLER (1944) 1 ALL ER 365, that an agreement to let a house for
the duration of the war did not create a valid tenancy had the lease been made for a
term of 99 years but determinable upon the happening of the uncertain event such as
the cessation of hostilities.

CREATION OF A LEASE

A lease is conveyance which passes 0a legal term of years to the tenant and creates the
legal relationship of landlord and tenant – either at once in the case of an immediate
letting or at the agreed future date in the case of a reversionary lease. The tenant
thereby requires a proprietary interest in the land, which being legal is enforceable in
the whole world. It must be distinguished from a contract for a lease, which does not
create the relationship of landlord and tenant.

Legal Lease

Section 1 of the Statute of Fraud Act of 1677 provides as follows: “All leases…or terms
of years…made or created…by parol, and not put in writing, and signed by the parties so

51
making or creating the same, or their agents thereunto lawfully authorized by writing,
shall have the force and effect of the lease or estates at will only”. That statute of fraud
requires that every lease should be in writing, though not necessarily by deed signed by
party creating it or his agent authorized in writing.

An exception was made in the statute for a lease for a period not exceeding three
years. At common law a parol lease was sufficient to create the relation of the landlord
and tenant. There was no necessity for it to be in writing or by deed. The statutes of
fraud provides that “the creation parol of lease, taken effect in possession for a term not
exceeding three years (whether or not the lease is given power to extend the term) at
the best rent which can be reasonably obtained without taken a fine” shall be valid.
Thus, a mere moral lease suffices to create a legal term of years, provides that it is
taken effect in possession, that it reserves the best rent reasonably obtainable and that
it is not to last longer than three years.

Section 3 of the Real Property Act 1845 provides “A lease required by law to be in
writing, of any tenement or hereditaments…made after the first day of October 1845
shall be void at law unless also made by deed”

Equitable Lease

A lease which did not satisfy the legal requirements was void at law and passed no legal
estate. Although at law the lease was ineffective to create any tenancy it might arise
independently of the lease. The Statutes of Fraud provides that a lease which was not in
writing should create a mere tenancy at will; RHYL UDC V. RHY AMUSEMENT LTD.
(1959) 1 ALL ER 257

Equity took a different view and held that these abortive leases were regarded as a
contract for a lease provided that it was enforceable contract. An oral lease followed
by an act of part performance, and the written lease signed by the party to be charged
and constituting a sufficient memorandum of the terms of the bargain, were both
allowed to have the same effect as a contract for a lease. A lease is clearly distinct from
a contract to grant a lease. With the lease, the grant is as follow: “I hereby grant you a
lease” and with a contract “I hereby agree that I will grant you a lease”. Both law and
equity created an imperfect lease as a contract to grant a lease provided it was made
for value and was sufficiently evidenced in writing or as far as equity was concerned
supported by a sufficient act of part performance; PARKER V. TASWELL (1858) 2 De G.
& J. 559

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A lease invalid at law is enforceable in equity under the following circumstances:

1. If there is a complete agreement between the parties and;

2. Either a sufficient memorandum in writing under the terms of Section 4 of the
Statute of Frauds Act, or;
3. Part performance:
i. This means that the essential terms of the lease must be expressly agreed,
the property to be devised, the duration of the lease, and the date of its
commencements;
ii. Such memorandum must describe the premises subject to the lease, the
duration of the tenancy, the rent, the names and description of the parties.
iii. Even where there is no memorandum, equity will not allow the statute to be
used as a cloak for a fraud, and where there is sufficient act of past
performance, equity will enforce the contract. An act of past performance
comprises something done by the plaintiff either in pursuance of the contract
or in reliance of it.

THE RULE IN WALSH V. LONSDALE

The defendant agreed to grant the plaintiff a lease for 7 years, one year’s rent to be
payable on demand in advance. The plaintiff entered in possession and paid his rent
quarterly in arrears. The defendant subsequently demanded payment in advance and
put in a distress. The plaintiff now brought an action for illegal distress. He claimed that
at common law the effect of his entering into possession of land under an agreement
for a lease and paying rent measured by year was to constitutes him a yearly tenant, on
those terms of the agreement consistent with a yearly tenancy; payment of a year’s rent
in advance did not form part of the legal tenancy; failure to pay it therefore did not
render him subject to distress.

Jessel M.R “there is an agreement for a lease under which possession has been given.
Now since the Judicature Act the possession is held under the agreement. There are not
two estates as there were formerly, one estate at common law by reason of the payment
of the rent from year to year and an estate in equity under the agreement. There is only
one court and the equity rules prevail in it. The tenant holds under an agreement for a
lease. He holds, therefore, under the same terms in equity as if a lease had been granted,
if being a case in which both parties admit that the relief is capable of being given by

53
specific performance. That being so, he cannot complain of the existence by the landlord
of the same rights as the landlord would have had if a lease had been granted.”

The doctrine in this is an example of the equitable maxim “equity looks on that as done
which ought to be done.” The parties to the contract are treated as if the lease had been
granted.

The doctrine in this case was followed in the following cases: LOWTHER V. HEAVER
(1889) 41 Ch D 248; CONTSWORTH V. JOHNSON (1886) 56 Lj QB 220 and M & B (1974)
1 ALL ER 17

The doctrine was qualified in CORNISH V. BROOK GREEN LAUNDRY LTD. (1959) 1 ALL
ER 373. In this case under the 1954 Landlord and Tenant Act applicable in England, a
tenant was entitle to a new lease of business premises occupied by him unless his
landlord requires the premises for his own occupation and acquired his interest in the
land at least 5 years before the tenant’s application. Trustees granted a lease of
business premises for 7 years to the defendant, who in turned sublease the premise for
the same terms less the last three days to the plaintiff. After the expiry of the two
periods, the trustee agreed to grant the defendant a fresh lease for 10 and half years,
subject to carrying out certain repairs. The plaintiff applied for a new sublease from the
defendant. The question arose whether the defendant acquired an interest in the
premises under the agreement and son within five years of the application. Romer L.J.
held: “…in a lease is subject to a condition precedent which remains unperformed by the
proposed tenant and has not been waived by the landlord.”

The doctrine was explained in the case of MANCHESTER BREWERY CO. V. COOMBS
(1901) 2 Ch 608. In this case, ‘A’ agreed to grant a yearly tenancy of a hotel to the
defendant, the defendant covenanting to buy all his beer from ‘A’. ‘A’ sold his business
to the plaintiff. Farwell J. held “the defendants holds under the agreement for a lease
from ‘A’ under which he has been in possession and paid rent for several years. The
whole contract has been performed up to the present time, except that the legal estate
had not been actually demised. The defendant will have no defense to an action for
specific performance, the sole object of which would be to compel him to accept the
legal estate.” See also INDUSTRIAL PROPERTIES (BARTON HILL) LTD. V. ASSOCIATED
ELECTRICAL INDUSTRIES LTD. (1977) 2 ALL ER 293

The statement that an agreement for a lease is as good as a lease is subject to certain
limitations. Firstly, the doctrine is excluded if the contract is one which equity will not

54
grant specific performance. It is a discretionary remedy which will not be granted in all
cases; CONTSWORTH V. JOHNSON (1886) 55 Lj QB 220

Secondly, the doctrine does not in all cases affect the rights of third parties. According
to Maitland in his book of equity “An agreement for a lease is not equal to a lease. An
equitable right is not equal to a legal right; between the contracting parties an
agreement for a lease may be as good as a lease; just so between the contracting parties
an agreement for the sale of land may serve as well as a completed sale and
conveyance. But introduce the third party and you will see the difference. I take a lease
my leasor then sell the land to ‘X’; notice or no notice my lease is good against ‘X’. I take
a mere agreement for a lease and the person who had agreed to grant the lease then
sells and conveys to ‘Y’, who has notice of my merely equitable right. ‘Y’ is not bound to
grant me a lease”.

Thirdly, the statutory definition of “conveyance” includes a lease but not a contract for a
lease. A tenant of a lease can claim the privileges under Section 6 (1) of the
Conveyancing Act 1881

NEED FOR THE REGISTRATION OF A DEED

Under the Registration of Instruments Act Cap 256 as amended, it is provided that any
contract or agreement concerning land must be registered within a certain period, of
the date of execution, depending on where it is executed otherwise it will be void.

 In the Western Area ten days;

 In the provinces one month;
 Abroad one year.

There are special provisions regulating the registration of provincial leases. Failure
makes the lease voidable and not void. There are provisions allowing such documents to
be registered out of time in certain circumstances.

LICENCE

A license is a permission given by the occupier of land which, without creating any
interest in land allows the license to do some act which would otherwise be a trespass.
It is essentially a permission to enter on the land of another for an agreed purpose. This
includes going on to land to play cricket or permission to watch a football match or a
film in a cinema. Without such permission the entry could be a trespass. The word refers

55
both to the right and the document. In considering the nature of the licence the classic
statement made by Vaugh C.J. in THOMAS V. SORREL (1673) that:

“A dispensation or licence properly passeth no interest, nor alters or transfer property in

anything, but only makes an action lawful, which without it had been unlawful.”

A licence does not create an interest in the land but merely gives a right to the licensor,
whilst the licencee has exclusive possession. At common law, there were four main
types:

1. Bare or simple licence;

2. Licence coupled with an interest;
3. Contractual licence; and
4. Licence protected by estoppel.

1.) Bare or Simple Licence

This is one given gratuitously, and not coupled with any grant. It is the simplest form of
licence. It is given gratuitously, and not coupled with any grant. Thus, it can be revoked
at any time without rendering the licensor liable for damages, even if it was granted by
deed. The licencee is entitled to be given a reasonable period to leave once the licence
is revoked. If he insists on remaining after the given period has elapsed, he will become
a trespasser; ROBSON V. HALLET (1967) 2 QB 939 and DAVIS V. LASLE (1936) 2 KB 434

A future of a bare licence is that it is revocable at any time without rendering the
licensor liable for damages, even if it was granted by deed. An example is when
permission is given to play cricket on a field. The licencee cannot be treated as a
trespasser until a reasonable time after notice has been given or withdrawn. It does bind
its successor in title. It is also known as voluntary licence; see ARMSTRONG V.
SHEPPARD & SHORT (1959) 2 QB 384.

Bare licence cannot be enforced against third parties to whom the licensor transfer his
interest. This is so because bare licence can be revoked at will by the grantor and can
certainly be revoked at any time by a successor in title of the licensor. It does not bind it
successor in title, ARMSTRONG V. SHEPPARD & SHORT (1959) 2 QB 384.

2.) Licence Coupled With Interest or a Grant

This gives the licencee permission not only to enter but also to enter and enjoy some
right – enter and watch football match, enter land and cut wood. It is said to be coupled

56
with a grant or interest when the licence, having being granted a definiteproprietary
interest in the land or a chattel lying on the land is given permission to enter in order
that he may enjoy or exploit the interest. If the interest is legal, it binds any successor in
title; if it is equitable, as for instance where there is a contract to grant by an unsealed
writing, the interest and with it the licence binds all successors in title except a bona fide
purchaser for value of the legal estate without notice from the licensor. As long as the
licensee can enforce his interest, he can insist on the continuance of his licence; DOE D.
HANLEY V. WOOD (1819)

3.) Contractual Licence

This arises when the licencee provides consideration for his licence. Entry may be the
sole purpose of his contract, or merely collateral to it, e.g. licence to enter and paint the
house,. However, if the contract is wrongfully repudiated, the licence is revoked. The
licensee can seek an injunction or specific performance. If he does not get either he
becomes a trespasser.

The Intervention of Equity on Contractual Licenses

Originally, the court did not appear to distinguish bare licenses from licenses for which
were granted for consideration. In the famous case of WOOD V. LEADBITTER (1845) 13
M & W 838; in which a race goer was ejected by force from a race course even though
he has given consideration for the right to enter the premises and view the racing. He
was unsuccessful when he sued the defendant for damages, for battery and false
imprisonment, because the court said that his licence was revocable at the will of the
licensor. Since he has refused to leave when required to, he had become a trespasser
and reasonable force could be used to remove him.

Following the passing of the Judicature Act in 1875, equitable remedies became
available to the parties. In HURST V. PICTURE THEATRES LTD. (1915)1, the plaintiff
(cinema-goer) was forcefully evicted from the premises, the manager erroneously
thinking that he had not paid for his ticket. He sued for assault and false imprisonment.
In this case the court found for the cinema-goer. It was explained since the licensee had
a contract with the cinema to watch film; the equitable remedy for an injunction to
restrain breach of an order for specific performance of the contract would have been
available to prevent the breach of contract, had it been possible to obtain the remedy in
the short time before the breach actually occurred.

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In WINTER GARDEN THEATRE (LONDON) LTD. V. MILLENIUM PRODUCTIONS LTD.
(1947) 2 ALL ER 331, it was established that rights of parties to a contractual licence
must be determined upon the proper construction of the contract. The House of Lords
held that if on its proper construction a contractual licence is irrevocable, even though it
is not coupled with a grant, it revocation in the breach of contract should be prevented
by the grant of an injunction. Even where there is no expressed contract, a court may be
prepared to infer a contractual agreement given rise to the licence; see TANNER V.
TANNER (1975) 3 ALL ER 776; HARDWICK V. JOHNSON (1978) 2 ALL ER 935; CHANDLER
V. KERLEY (1978) 2 ALL ER 942; VERRALL V. GREAT YARMOUTH BOROUGH COUNCIL
(1980) 1 ALL ER 839.

4.) Licence by Estoppel

An estoppel arises where one party makes a representation or promise to another party
intending that party to act in reliance on the representation or promise and that party
does so act to his detriment. The first party is stopped from acting inconsistently with
his representation or promise. In the plaintiff’s HOPGOOD V. BROWN (1955)2 ALL ER
550, predecessor in title built a garage for defendant whose wall was to be the
boundary between the plaintiff’s and the defendant’s land. The plaintiff sued the
defendant for trespass alleging that the garage projected over his land. The Court of
Appeal held that the plaintiff is stopped from denying that the wall was the boundary
and that the land on which the garage was built was the defendant’s.

The equitable doctrine of acquiescence, or proprietary estoppel, has a much wider

application than merely to licence. The doctrine defines a factual situation beyond the
licence itself which may be satisfied in whatever way seems appropriate to the court.
The doctrine applies wherea land owner stand by while another improves his land.
Equity estops the owner from acting inconsistently with his expectation. The early cases
deal almost exclusively with situations in which a landlord encouraged the occupier of
his land to believe that the latter held under a lease.

In RAMSDEN V. DYSON (1886) LR (HL) 129, Lord Kingsdown stated “If a man, under a
verbal agreement with a landlord for a certain interest in land, or, what amounts to the
same thing, under an exception, created or encouraged by the landlord, that he shall
have a certain interest, take possession of such land, with the consent of the landlord,
and upon faith of such promise or expectation, with the knowledge of the landlord, and

58
without objection by him, lays out money upon the land, a court of equity will compel
the landlord to give effect to such promise or expectation.”

In WILMOTT V. BARBER (1880) 15 Ch 96, Fry J. set out the requirements: “It has been
said that the acquiescence which will deprive a man of his legal rights must amount to
fraud, and in my view that is an abbreviated statement of every true proposition. A man
is not to be deprived of his legal rights unless he has acted in such way as would make it
fraudulent for him to set up those rights. What then, are elements or requisites
necessary to constitute fraud of that description? In the first place the plaintiff must have
made a mistake as to his legal rights. Secondly, the plaintiff must have expended some
money or must have done some act (not necessarily upon the defendant’s land) on the
faith of his mistaken belief. Thirdly, the defendant, the possessor of the legal right, must
have encouraged the plaintiff, and the doctrine of acquiescence is founded upon conduct
with knowledge of your legal mistaken belief of his rights, but if he does not, there is
nothing which calls upon him to assert his own rights. Lastly, the defendant, the
possessor of the legal rights, must have encouraged the plaintiff in his expenditure of
money or in the other act which he has done, either directly or abstaining from asserting
his legal rights. Where all these elements exist, there is fraud of such a nature as will
entitle the court to restrain the possessor of the legal right from exercising it, but in my
judgment, nothing such of this will do.”

This test was applied in KAMMINS BALLROMS CO. LYD. V. ZENITH INVESTMENTS
(TORQUAY) LTD. (1970) 2 ALL ER 871. However, in TAYLORS FASHIONS LTD. V.
LIVERPOOL VICTORIA TRUSTEE CO. LTD. (1981) 1 ALL ER 897, it was held that this test
was not exhaustive. The court approved the broad test used in SHAW V. APPLEGATE
(1978) 1 ALL ER 123. The court stated the test would be whether in the circumstances
“the conduct is unconscionable without the necessity of forcing those circumstances into
a procrustean bed constructed from some unalterable criteria.”

In CRABBS V. ARUN DISTRICT COUNCIL (1975) 3 ALL ER 865, applied the test in
WILMOTT V. BARBER supra, but added further that an equity will only be established if
the court found that it would be “unconscionable and unjust” to allow the defendants to
set up their rights.

OCCUPATIONAL RIGHTS OF SPOUSES AND PARTNERS

At common law, a man is under a duty to allow his wife to occupy the house he has
provided for her, unless he can provide alternative accommodation; LEE V. LEE [1952] 2

59
GB 489. In case of dispute the court seek to protect the wives’ rights by sometimes
expelling the husband from the home, especially pending divorce proceedings. It was
once thought that this was equity, and it has been held that even a deserted wife had a
right to remain in the home, and this was held binding on third parties who had
acquired an interest without notice; see BENDALL V. McWHIRTER (1952) 2 QB 446, CA;
(1952) ALL ER 1307.

However, in NATIONAL PROVINCIAL BANK LIMITED V. AINSWORTH (1965) AC 1175;

this view was disapproved on the grounds that the wife held proprietary interest
recognized by law. The deserted wife was therefore left unprotected against third
parties. It was stressed by Lord Upjohn and Lord Wilberforce that equitable remedies do
not bind purchasers unless there is a proprietary interest; the development of restrict
covenants shows several tests have to be satisfied before a purchaser will be bound.

CONVEYANCE

THE CONDUCT OF CONVEYANCING TRANSACTION:

A conveyance is a contract for the sale of land or interest in land. Unlike simple
contracts, conveyancing transactions must be done by deed. It may be regarded as the
application of the law of real property in practice. The normal parties are the vendor
and the purchaser.

A purchaser of land has right to put written requisitions and objections to the vendor as
to any defect in the title as appears on the abstract or disclosed by an examination of
the deeds. The vendor must in turn give satisfactory answer to each requisition I order
to establish a good root of title. However, this will depend on the character or type of
the vendor’s title. The vendor’s only obligation is to show that he can convey or compel
others to convey the estate he has agreed to sell to the purchaser.

In order to establish good root of title, the purchaser must ascertain:

a. That an unbroken title has been traced from the instrument to the vendor, and;
b. Whether the parties to the various instruments abstracted had power to convey
in the capacity in which they have contracted to sell; GREEWOOD V. WHITEHEAD;
ELLIOT V. PIERSON

In tracing the instrument to the vendor the purchaser may require proof of documents
and events abstracted; examine abstracted documents for any defect in form, stamping,
disclosure of equities, breaches of trust, mortgages or charges.

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GOOD ROOT OF TITLE

The abstract of title must commence with a good root of title. This is usually evidenced
by the following instruments depending on the title of the vendor or the nature of the
transaction:

a. A conveyance of sale
b. A legal mortgage
c. A specific demise by a testator
d. An assent by personal representatives
e. A voluntary conveyance

An instrument as evidence of good root of title must:

i. Deal with the whole legal and equitable estate in the property
ii. Contain nothing that appears to cast any doubt in the title
iii. Describe the property.

If the instrument is deficient in any of these particulars, the purchaser is entitled to

request further evidence.

An abstract of title must contain, besides the document forming the root of title:

- Every subsequent document and statement of every event, e.g. births, marriages,
or death which forms a link in the vendor’s title.
- Legal mortgages, even though the money has been repaid and the conveyance or
receipt endorsed showing the discharge of the mortgage.

In an abstract of title, births, mariages, and deahs are proved by birth, marriage, and
death certificates respectively of members of the dissociate family, entries in the family
bible or by statutory declaration.

Intestacy is proved by the production of letters of sdministration.

A deed executed under a power of attorney should be proved by the production of

power of attorney and proof that the power was not revoked by the donor’s death or
otherwise before the power was executed.

A will should be proved by the production of probate or letters of administration with

will annexed, or office copies thereof, or if the will has not been proved, by the will
itself.

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A disentailing deed should be proved by a certificate of enrolment.

NOTE:

Statutory provision takes precedence over common law. Check authority for number f
years required for good root of title for:

a. Private land
b. State land.

PARTS OF A CONVEYANCE

1. DATES AND PARIES –

This indicates the identity and name of the parties to the conveyance. It shows the
interest of the person who is conveying holds, and also the capacity in which the person
is receiving. The names should be properly cited and given as much detail as possible.
For example, to include the person’s occupation in the conveyance. This is to restrict the
person who may claim to be entitling to the contract.

The commencement describes the general nature of the document, e.g. ‘This
conveyance.’ The old practice was for the initial words to ‘This indenture.’

Whatever date is in fact inserted in the conveyance, the document takes effect from the
date upon which it was signed, sealed and delivered by the parties to it. A deed which
has been signed and sealed but not delivered is ineffective.

2. RECITALS

These are two types:

a. Narrative recitals, which deals with matters such as how the vendor became
entitled to the land.
b. Introductory recitals, which explain how and why the existing state of affairs is to
be altered, e.g., that the parties have agreed for the sale of the property.
3. TESTATUM

This is the beginning of the operative part of the transaction and is paramount to be
stated in the document. Consideration is stated to show that the transaction is not a
voluntary one.

Receipt clause set out in the body of the conveyance is sufficient evidence of payment
and absolves a subsequent purchaser from further enquiry. It is sufficient discharge to
62
the person paying the same. A subsequent purchaser is interested as to whether the
consideration was valuable or it was a voluntary conveyance.

Operative words – “The vendor as beneficial owner hereby grants and conveys unto the
purchaser”. This shows that title has passed and the capacity in which the vendor passes
title. It has the value of the legality of the transaction. The capacity in which the title is
being passed must be ascertain. Title is usually passed as beneficial owner, settler,
trustee, mortgagor, etc. it is importance to know the legal significance of any interest
held in the land.

An executed conveyance is a document showing title. There are implied covenants. If

there is a defect, there is remedy for the purchaser to take action against the vendor.
That is, when he sells in his capacity – certain undertakings must be properly dealt with.
The impliedcovenants of vendor are that he has capacity to pass title and it is free from
encumbrances.

The settlor has the implied covenant for further assurances, binding that person and
those claiming under him.

A transaction by trustee, mortgagee, personal representative, receiver, or under an

order of the court has the implied covenant the grantor himself has not encumbered
the land.

The benefit of the covenants run with the land, so that each person in whom the land is
for the time being vested is entitle to enforce the covenant. And the burden of the
covenant shows that the person liable is the person entering into the covenant and
binds himself to its provisions.

4. PARCELS CLAUSE

This is a description of the property conveyed. The clause must clearly give the
description based on its present appearance. It should leave no doubt about its
boundary, describes the property. It may be connected with an earlier description in
earlier deeds. What is described is what is intended to be conveyed, except bounded by
reservations or exceptions.

5. EXCEPTIONS

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An exception refers to a right or something in existence at the time of the grant. It must
not destroy the grant, nor undermine it.

6. RESERVATIONS

It is something new inserted into the conveyance, a right for the vendor. A reservation
in a conveyance is effective for a future use, e.g. as to use of the land or other factors.
They are not implied, must be stated.

Reservations or exceptions can be found as part of the parcel clause.

7. HABENDUM

“To hold on to the purchaser in fee simple.” Its purpose is to define the estate, i.e. the
amount of interest taken by the estate. Estate or interest in the property is described in
the habendum, e.g. claim to title or interest.

In practice, it is normal to insert the kind of estate granted e.g. fee simple, etc. where
appropriate.

The words of the habendum are technical and have judicial meaning. If the conveyance
is subject to encumberances, such as a mortgage, it must be stated as well. For if the
encumbrances are enforced against the purchaser, he may sue the vendor.This accords
with the provisions of the implied covenants to which the vendor is bound. Any
encumberance in the estate must be stated and any limitation to claim of interet must
be clearly stated.

Any conveyance without limitation q will pass the estate as such. For e.g. if yoy say “In
fee simple.” The estate passes as such. In any limitations, it must be stated, or there will
be breach of the implied covenants.

8. ATTESTATION CLAUSE

This states the attestation of the vendor with his signature and seal. It records the day
and year already shown in the date and commencement of the conveyance. The
presence of a witness is required to testify in the authenticity and good faith of the
vendor.

LEASES

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A lease is an interest in land for a specific period. It has a definite period to determine. A
lease can also be a purchase of an interest/estate in land less than fee simple.

A contract for a lease must be evidenced by a memorandum of writing signed by the

party to be charged – Section 4 of the Statute of Frauds 1677

Section 3 of the Real Property Act 1845 states that ‘a lease required by law to be in
writing is void for the purposes of creating or conveying a legal estate unless made by
deed.

FORMS OF A LEASE – DIVISIONS

It must be stated that there are similarities between the parts of a conveyance and a
lease. There are however, distinct differences, viz:

1. PARTIES AND COMMENCEMENTS

It contains the commencements and names of the parties to a lease. the parties should
include the name(s), address, occupation of the persons to avoid confusion, ambiguities
or ambivalence, you describe the parties to be certain of their identity.

2. RECITALS

It contains any introductory matter necessary to explain the lease and any narrative
matters to be incorporated into the lease. In a lease, recital becomes less important that
in a conveyance. This means you do not go into detail about title or estate/landlord. You
are just creating a term out of the estate. Except in a sub-lease, where it might be
necessary to explain those factors.

3. DEMISE

It contains the words necessary to create the terms of the lease. If there is no expressed
covenant for quiet enjoyment, any form of demise implies that the landlord is entitled
to grant a lease and that the tenant shall have quiet enjoyment of the premises.

The demise states the interest taken out of the estate.

4. PARCELS

It contains a description of the property not more expressly or impliedly than it is

intended to pass to the tenant.

5. HABENDUM

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It states the name of the tenant, and date of the beginning and end of the term. It
stipulates the interest granted in the estate, that is, what is granted in the lease hold.
The interest it gives is less than a freehold, and it is certain for a fixed period of duration.

6. REDDENDUM

Contains a reference to the rent the tenant is to pay. The dates on which the rent is to
be paid, the date on which the first payment is to be made, and a condition that if the
landlord re-enters into possession, the tenant must pay the proportionate amount of
rent due up to date of such re-entry.

7. PROVISIO FOR RE-ENTRY AND FORFITURE

It stipulates that the landlordmay re-enter into possession of the premise and
determine the tenancy, if the rent is in arrears for twenty one days (or period specified)
whether formally demandedor not, or the tenant is in breach of any of his covenants.

COVENANTS BY LANDLORD AND TENANTS

This requires the skill and tact of a lawyer. These covenants can be expressed or implied,
or are usual covenants. There are lists of things a tenant is supposed to do or
undertakes to do. This also applies to the landlord.

When these covenants are written in the lease, they are expressed terms. There are
times when these covenants are not expressed. You must know what terms are implied.
This helps you to advise your client in circumstances where the covenant are not
expressed.

There are terms which are implied by law and are expressed; and there are those
implied by law even though not expressed.

Usual covenants – these covenants are always present, whether expressed or implied. In
other words, these usual covenants will be inserted in the lease since, even if there is no
express agreement to that effect, such agreement is implied, unless expressly excluded.

Implied covenants operate as usual covenants. They take effect whether implied or
expressed. However, they cannot be easily excluded, except with the agreement of the
parties.

Expressed covenants may be expressed, and the implied terms may be expressed.

EXPRESS COVENANTS

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TENANT

- To pay rent
- To pay rates and taxes
- To repair the premises
- Not to sublet
- Allow landlord to enter and view
- To insure
- Against trade
- Not to repudiate owner’s title
- Not to alter the premises
- To hold premises in tenantable manner
- To give up possession at effluxion of time

LANDLORD

- To give tenant quiet enjoyment

- Not to derogates the tenant’s lease
- Premises must be fit for habitation
- To repair
- To insure
- Pay taxes and rates
- Right of re-entry

The covenant which if not expressed are always implied

TENANT

- To pay rent
- Not to repudiates landlord’s title
- Allow landlord to enter and repair
- Pay utility charges

LANDLORD

- Tenant must have quiet enjoyment

- Re-entry for non-payment of rent or breach of covenant
- Premises must be fit for habitation
- Non derogation of grant
- To pay taxes and rates

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 TENANCIES

English law recognizes more than one form of co-ownership. The two most common
forms which have survived to the present day are Joint Tenancy and Tenancy in
Common. Tenancy in Common is sometimes referred to as Undivided Shares. Note that
the use of the word ‘Tenancy’ here has nothing to do with leases.

1. JOINT TENANCY AND TENANCY IN COMMON

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