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History of Real Estate Law: The Old English Landholding System

English real-estate law was imported, through colonization, into the earlier forms of law in the U.S.A., Canada, Australia and New Zealand. Many of these states, or their territories, have since modified this historical law, to varying degrees. A study of the old feudal land system of England provides us with an invaluable glimpse of legal history regulating the most valuable asset of them all: land. In medieval times, land was the sole form of wealth.

Land ownership in ancient England, as with most objects, depended primarily on possession. You had it, you owned it. You wanted it, you fought for it. You found it, you kept it. There were no courts or police force ready to recognize or enforce "legal rights" as we know them today.

All this changed with the conquest of England in 1066 by the Norman conquest. William decreed that he owned all of the land in England by right of conquest. Not one acre of England was to be exempted from this massive expropriation. This sudden vacuum of privately-held land was promptly filed by a variety of huge land grants given by the new King to either his Norman officers or to those of the English who were ready to recognize him as king.

The underlying principle of the system was that nobody owned land but the king. The expressions dominion directum and dominion utile are often used to describe the relative ownership of king and lords; the former as landlord the latter as tenant.

This represents a significant difference between real estate and chattels. Chattels can be owned outright. It can also be contrasted with those countries that have an allodial system (absolute ownership of land). Even today, in those countries that have inherited the tenurial system, all land belongs to the Crown; persons only own an estate in the land.

The device used by the king to control and administer his land was that of tenure. Tenure was the key component of the feudal system. The king struck a bargain with a lord for a large chunk of land. The lords that held their tenure directly from the king were called tenants-in-chief or in capite.

After the conquest of 1066, it was this group of persons who formed the basis of English aristocracy and began, by the process of subletting the king's land, the implementation of the feudal system. A lord would contract with commoners, to whom he would sub-grant the exclusive possession and use of part of the royal tenure in exchange for goods or services. This subdivision of the king's land was known as subinfeudation and a long chain of tenure took root, with the king always being at the head of the chain. Significant rules of feudal law relating to the rights and obligations of lords and tenants can be found in the 1215 Magna Carta.

The tenures granted by the king and lords were exchanged for a wide variety of goods or services such as Knight service (the tenant agreeing to serve as a knight in the king or lord's army) or "free and common socage", which referred to service or goods other than those military. A good example is the provision of a certain amount of food from a tenant's annual crop. Religious bodies could also hold land from a lord, in exchange for prayers; this was called "frankalmoigne" or "free alms."

Tenure also implied a series of incidental obligations. A tenant was required to take an oath of "fidelity" to the lord. This solemn ceremony formed the basis for the legal relationship between the lord and the tenant. The lord was entitled to emergency taxes when for example, he was kidnapped, to pay the ransom. The lord was allowed to insist from a tenant's eldest son, as heir of the tenure, on a special estate tax called "relief" to effect the transfer of responsibilities. If the tenant died with an infant son as heir, the land went into wardship. If the heir was female, the lord could veto the marriage of the woman. See the text of the 1215 Magna Carta for more on these incidents.

The most important of the incidents is the concept of "escheat" which allowed the land to revert back to the lord. There were two causes for escheat. The first was the death without heirs of the tenant. The second was the conviction of the tenant of a felony. The loss of one's land, not only for oneself but also for one's heirs, led to a cruel and unusual punishment called peine forte et dure (see discussion in The Law's Hall of Horrors). A person pleading guilty to a felony lost his land to the lord. But if he died without a plea, the next of kin remained eligible to claim the property by paying relief as discussed above.

The system changed somewhat in 1290, when the Statute Quia Emptores was passed to prohibit further subinfeudation and allowing tenants to sell their rights without requiring the prior consent of the lord. From this point on, the number of tenures was frozen except that the king was exempt from the Statute and he could grant additional tenures. Eventually, incidents were prohibited and socage of all kind were eliminated and replaced only by free and common variety.

Tenures were of a variety of duration known as "estates":

It was in this context that the British began their dominion over the seas and their explorations which led to the modern nations of Australia, Canada, New Zealand and the United States of America. To a varying degree, the laws of these countries part company with the old English land system and on different dates. Although imposed on the colonies to start with, colonial laws quickly changed the essence of it such that the laws of all these countries are similar only to the extent of their origin in old English land-ownership law. Major legislative changes in England 1926 did not affect the law of many former colonies who, as separate states, had already accepted or rejected remnants of old English land ownership law.

But one aspect that does remain is that land titles in the older British colonies, can usually be traced back to the point of ownership by the British sovereign.

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