THE DOCTRINE OF TENURE AND ESTATES

Feudal beginnings
1) Ownership by the king
Modern land law has developed by a process of
evolution over a period of time. The shape of
the present law is far removed from that of the
medieval period, but some of the fundamental
concepts which make up the framework of
English land law in particular concepts of the
ownership of land are derived from that time.
 Cont’d
• Today it is commonly assumed that land is
“owned” by those who hold title to it.
• Historically English law was founded upon the
premise that all land was owned by the king.
 Cont’d
• The king’s subjects were merely permitted to
make use of it, holding it on the basis of some
form of tenancy, either from the king directly
or indirectly through a chain of others deriving
their holding ultimately from the king himself.
• “No land without a lord.” This meant that
there is no land in England owned by a subject
not held by some lord.
 Feudal Ladder

KING

TENAN
TS IN
CHIEF

TENAN
TS IN PEASA
DEMES NTS
NE
 Cont’d
• The outstanding feature of English land
law is that it became and remained
intensely feudalistic.
• F.W. Maitland in “ The Constitutional
History of England ( 1908), p.143”, refers
to Feudalism as:
 Cont’d
“A state of society in which the main
social bond is the relation between
lord and man, a relation implying on
the lord’s part protection, service
and reverence on the man’s part.
This personal relation inseparably
involved the tenure of land.”
 Cont’d
• There is no independence. There is
surbodination whereby one man is
deliberately made inferior to another.
• In pre-feudal Europe land was owned subject
to custom
• Under feudalism there was a king, but power
was excessively decentralized in the hands of
the feudal masters/lords: The powers were
quasi- administrative and quasi-judicial.
 Characteristics of Feudalism
• Relation of lord and vassal
A vassal is a person who promised to be
loyal to a lord and to serve him or fight
for him and who in return was given land
by the lord.
• Every person interested in land can only
hold it as a tenant and not an owner.
 Cont’d
• As a condition precedent, the tenure
shall continue to exist only so long as
the tenant performs particular
services imposed upon him at the
beginning of the tenure.
• A reciprocity of rights and duties
 Effects of feudalism

• From a legal aspect land became the

exclusive bond of union between men.
• Conversion from ownership to tenure
began. Individual or communal
ownership was destroyed. The ownership
of the whole of the land in any given
district was vested in the overload.
 Cont’d
• In return for the land which they held
they were bound to render services,
chiefly of a millitary nature to the
overload, while the latter in turn was
bound to protect his tenants. The lord
gained in dignity and became entitled to
personal services, while the tenant
obtained security.
Tenets of English Law of Real Property

There are two basic tenets:

1. The Doctrine of Tenure
• The origin of the doctrine of tenure is
founded in the traditional belief that
sometime after the Norman Conquest of
England in 1066, William I declared all lands
in England to be his by conquest and
surrender.
 Cont’d
• Tenure is best understood as the terms under
which a person held land, either as a tenant in
capite of the king or as a tenant demesne of
their intermediate overload.
• In short tenure answers the question of “How
it is held”
• Generally tenure required the tenant to
perform services for the king or his overload.
 Cont’d
• There were a wide variety of tenures differing
according to the nature of the services that
had to be performed. Services included the
provision of armed horsemen for battle known
as Knight’s service, grand sergeanty which
included the performance of some
honourable service for the king in person
• In the system of tenure two types of tenants
are distinguishable:
 Free tenure
• This is tenancy where some tenants enjoyed
tenure of land in their own right and therefore
enjoyed a place on the feudal ladder.
• The tenants here could be regarded as having
an interest in land which they could transfer to
others.
 Unfree tenure or villeinage

• This is tenancy enjoyed by the ordinary

common people who only occupied their land
on behalf of their lords rather than in their
own right and it was the lord who was
regarded by law as having possession.
 2. The Doctrine of Estates
• The estate is better understood as an interest
over the land for a period of time.
• The relationship between the doctrine of
tenures and estates was thus that the tenure
represented the terms under which a tenant
enjoyed his rights to the land and the estate
relates to the period of time during which his
rights to the land will endure.
 Cont’d
• In principle the land was owned by the king
and therefore one could only get a right over
land for a period of time.
• English law distinguished between ownership
of land the physical and use of the land or
enjoyment of rights in the land. This was
enunciated in the case of Walsingham(1573) 2
Plowd. 574 at 555
 Cont’d
“…. The land itself is one thing and the estate in the
land is another thing, for an estate in the land is
a time in the land, or land for a time and there
are diversities of estates which are no more than
diversities of time.”
• Estates were classified into two broad
categories: Estates of freehold and estates
less than freehold also called lease hold.
 Freehold Estates
• The term “ estates of freehold” refers to estates
that are of uncertain duration. These were mainly
three each of which differed in the length of time:
• Fee simple: It is the longest estate in terms of
duration that can exist at common law which is as
good as ownership of land.
• The term ‘fee’ designates that it is inheritable and
‘simple’ indicates that it is inheritable by the
general heirs ( relatives of any sort).
 Cont’d
• A fee simple estate only determines when the
holder of the estate dies intestate and without
any relatives capable of inheriting it.
• A fee simple is capable of enduring
indefinitely. In Walsingham’s case(supra) an
estate in fee simple was described as ‘a time in
the land without end.’
 Cont’d
• This in principle does not displace the crown’s
radical title to land on which there is a fee
simple estate.
 Fee tail
• Walsingham’s case defines fee tail as ‘ time in
the land for as long as the grantee has issues
of his body.’
• It is an estate that lasts for as long as the lineal
descendants of the grantee live.
• If the family to which the land was granted
dies, it will revert to the grantor.
• Fee tail estates are no more.
 Life estate
• This is an estate that endures for as long as
the grantee is still alive.
• It is terminated on the death of the original
grantee whether or not it was transferred to
someone else.
• This kind of estate cannot be inherited.
 Flexibility of land ownership through
estates
• The concept of the estate has enabled English
law to develop a complex and flexible means
of land ownership since a person does not
own the land itself but an abstract estate in
land.
• It is possible for a lesser estate to be carved
out of a greater estate.
 Cont’d
• For example a person holding an estate in fee
simple of the land can grant a life interest.
out of his estate to another.
• The holder of a life interest will then be
entitled to enjoy immediate possession and
the use of the land for the period of his life.
 Cont’d
• At the death of the life tenant the holder of
the fee simple will be entitled to enjoy his full
unencumbered rights over the land again.
• Thus, a number of people may enjoy different
rights on the same piece of land and at the
same time because the nature of the
ownership varies.
 Leasehold Estates
• It is an estate less than freehold.
• The expression ‘less than freehold’ refers to an
estate whose date of termination is certain or
fixed. The only such estate is a lease.
• This estate allows for separation of between
ownership of land and use of land by virtue of
an interest in it.
 Cont’d
• Street v Mountford [1985] AC 824 defines a
lease as an agreement in which one person
grants to another exclusive possession or
occupation of land for a duration of time in
return for a Periodic payment in monetary
terms.
Application of English Concepts in African
contexts.
• In some instances during colonialism, the
English standard of tenure was used as basis
to determine if land in any country that was
colonized by the British was actually owned.
• A failure of any locally rooted system to fit
within the concepts of tenure and other
English concepts would most likely go to show
that such land was terra nullius.
 The Doctrine of Terra nullius

• Terra nullius is a latin phrase meaning land

belonging to no one.
• The English interpreted this as land which is
unoccupied or unsettled in the european
sense i.e that was without houses or
cultivated pastures, no developed towns nor
structure of government.
 Cont’d
• The doctrine of terra nullius was really no
more than an eighteen-century convention of
European international law – it being held that
any land which was unoccupied or unsettled
could be acquired as a new territory by a
sovereign State, and that the laws of that
State would apply in the new territory.
 Cont’d
• The English government used this so-called
doctrine to claim Australia and set up a penal
colony in which English law applied.
• The Doctrine ignored the rights and customary
laws of Aborigines and Torres Strait Islanders.
• The settlers, moreover, generally had a lack of
understanding of, and disregard for, these
customary laws.
 Cont’d
• The doctrine of terra nullius was challenged in
the case of Mabo v Queensland (No.2) 1992
HCA 23;1992 175 CLR 1.
• In this case the British asserted that since the
land in question was held under customary
tenure it was free or not owned.
 Cont’d
• Court in this case asserted that….. ‘it could not
be said that the aboriginal communities of
Australia that lived on their ancestral land for
time immemorial had lost a right to claim it
when the crown conquered the territory.
 Cont’d
This is so because through occupation, the
aboriginal community had asserted its
members exclusive right to occupy and use
the land. Their claim by that reason becomes
an encumbrance on the title claimed by the
crown after the territory is acquired.
 Cont’d
• The Mabo case bases on occupation and use
to establish a proprietary right in the land that
outlasts occupation of territory by the crown.
 Cont’d
• Similarly in Amodu Tijan v Secretary of
Southern Nigeria[1921] 2 AC 399 court held
that the rights that were ceded to the British
crown were those in the King (Oba) and
would not in any way affect the usufructuary
right of his people to land. Private property
rights were not affected by this cessation.
 Cont’d
• The above rulings point to the fact that the
acquisition of territory by state through
colonization does not put to an end existing
customary rights in property.
• The sovereign could later by legislation
confirm such rights or interest claimed on the
basis of custom.
 Cont’d
• Further a chief cannot claim a fee simple in
customary land but only a right to hold it as
trustee of such land for the whole community.
• Ownership is in the whole community that has
the benefit to share in the proceeds of sale or
lease if at all.
 Relevance of the Doctrines of Tenure and
Estates in Uganda
• When Uganda became a British protectorate, much
of the land in the country was by law vested in the
crown in England.
• The Crown Land Ordinance of 1922 ( now repealed)
provided that all land and any rights vested in it
were vested in the protectorate and shall be
presumed to be the property of the crown unless
they have been or are therefore recognized by the
government, by document to be the property of a
person or until the contrary is proved.
 Cont’d
• The effect of this was that any land not held
on the basis of registered title was deemed to
be crown land which legally was at the
absolute disposal of the crown.
• Whether the doctrines of tenure and estates
were introduced in Uganda by virtue of the
protectorate is purely of academic interest.
 Cont’d
• Under article 237(1) of the 1995 Constitution,
the ultimate title to the land in Uganda is
vested in the citizens of Uganda in accordance
with the land tenure systems provided by the
constitution.
• There is however much controversy about
this, especially in the light of the doctrine of
eminent domain.