Land tenure

In common law systems, land tenure is the legal regime in which land is owned by an individual, who is said to "hold" the land. It determines who can use land, for how long, and under what conditions. Tenure may be based both on official laws and policies, and on informal customs. The French verb "tenir" means "to hold" and "tenant" is the present participle of "tenir". The sovereign monarch, known as The Crown, held land in its own right. All private owners are either its tenants or sub-tenants. Tenure signifies the relationship between tenant and lord, not the relationship between tenant and land. Over history, many different forms of land ownership, i.e., ways of owning land, have been established.

A landholder/landowner is a holder of the estate in land with considerable rights of ownership or, simply put, an owner of land.

Feudal tenure

Historically in the system of feudalism, the lords who received land directly from the Crown were called tenants-in-chief. They doled out portions of their land to lesser tenants in exchange for services, who in turn divided it among even lesser tenants. This process—that of granting subordinate tenancies—is known as subinfeudation. In this way, all individuals except the monarch were said to hold the land "of" someone else.

Historically, it was usual for there to be reciprocal duties between lord and tenant. There were different kinds of tenure to fit various kinds of duties that a tenant might owe to a lord. For instance, a military tenure might be by knight-service, requiring the tenant to supply the lord with a number of armed horsemen. The concept of tenure has since evolved into other forms, such as leases and estates.

Modes of ownership and tenure

There is a great variety of modes of land ownership and tenure.

Traditional land tenure

For example, most of the indigenous nations or tribes of North America had differing nations of land ownership. Whereas European land ownership centered around control, Indigenous notions were based on stewardship. When Europeans first came to North America, they sometimes disregarded traditional land tenure and simply seized land, or they accommodated traditional land tenure by recognizing it as aboriginal title. This theory formed the basis for treaties with indigenous peoples.

Ownership of land by swearing to make productive use of it

In several developing countries such as Egypt, Senegal, this method is still presently in use. In Senegal, it is mentioned as "mise en valeur des zones du terroir"[1] and in Egypt, it is called Wadaa al-yad.[2]

Allodial title

Allodial title is a system in which real property is owned absolutely free and clear of any superior landlord or sovereign. True allodial title is rare, with most property ownership in the common law world (Australia, Canada, Ireland, New Zealand, United Kingdom, United States) being in fee simple. Allodial title is inalienable, in that it may be conveyed, devised, gifted, or mortgaged by the owner, but it may not be distressed and restrained for collection of taxes or private debts, or condemned (eminent domain) by the government.

Feudal land tenure

Feudal land tenure is a system of mutual obligations under which a royal or noble personage granted a fiefdom — some degree of interest in the use or revenues of a given parcel of land — in exchange for a claim on services such as military service or simply maintenance of the land in which the lord continued to have an interest. This pattern obtained from the level of high nobility as vassals of a monarch down to lesser nobility whose only vassals were their serfs.

Fee simple

Under common law, Fee simple is the most complete ownership interest one can have in real property, other than the rare Allodial title. The holder can typically freely sell or otherwise transfer that interest or use it to secure a mortgage loan. This picture of "complete ownership" is, of course, complicated by the obligation in most places to pay a property tax and by the fact that if the land is mortgaged, there will be a claim on it in the form of a lien. In modern societies, this is the most common form of land ownership. Land can also be owned by more than one party and there are various concurrent estate rules.

Native title

In Australia, native title is a common law concept that recognizes that some indigenous people have certain land rights that derive from their traditional laws and customs.[3] Native title can co-exist with non-indigenous proprietary rights and in some cases different indigenous groups can exercise their native title over the same land. There are approximately 160 registered determinations of native title, spanning some 16% of Australia's land mass. The case of Mabo overturned the decision in Milirrpum and repudiated the notion of terra nullius. Subsequent Parliamentary Acts passed recognised the existence of this common law doctrine.

Life estate

Under common law, Life estate is an interest in real property that ends at death. The holder has the use of the land for life, but typically no ability to transfer that interest or to use it to secure a mortgage loan.

Fee tail

Under common law, fee tail is hereditary, non-transferable ownership of real property. A similar concept, the legitime, exists in civil and Roman law; the legitime limits the extent to which one may disinherit an heir.

Leasehold

Under both common law and civil law, land may be leased or rented by its owner to another party. A wide range of arrangements are possible, ranging from very short terms to the 99-year leases common in the United Kingdom, and allowing various degrees of freedom in the use of the property.

Common land

Rights to use a common may include such rights as the use of a road or the right to graze one's animals on commonly owned land.

Sharecropping

When sharecropping, one has use of agricultural land owned by another person in exchange for a share of the resulting crop or livestock.

Easement

Easements allow one to make certain specific uses of land that is owned by someone else. The most classic easement is right-of-way, but it could also include (for example) the right to run an electrical power line across someone else's land.

Other

In addition, there are various forms of collective ownership, which typically take either the form of membership in a cooperative, or shares in a corporation, which owns the land (typically by fee simple, but possibly under other arrangements). There are also various hybrids; in many communist states, government ownership of most agricultural land has combined in various ways with tenure for farming collectives.

Land tenure in archaeology

In archaeology, traditions of land tenure can be studied according to territoriality and through the ways in which people create and utilize landscape boundaries, both natural and constructed. Less tangible aspects of tenure are harder to qualify, and study of these relies heavily on either the anthropological record (in the case of pre-literate societies) or textual evidence (in the case of literate societies).

In archaeology, land tenure traditions can be studied across the longue durée, for example land tenure based on kinship and collective property management. This makes it possible to study the long-term consequences of change and development in land tenure systems and agricultural productivity.

Moreover, an archaeological approach to land tenure arrangements studies the temporal aspects of land governance, including their sometimes temporary, impermanent and negotiable aspects as well as uses of past forms of tenure. For example, people can lay claim to, or profess to own resources, through reference to ancestral memory within society. In these cases, the nature of and relationships with aspects of the past, both tangible (e.g. monuments) and intangible (e.g. concepts of history through story telling) are used to legitimize the present.

Land tenure by country

China

All land in China is owned by the central government. Enterprises, farmers, and householders lease land from the state using long-term leases of 20 to 70 years.[4]

England and Wales

For land ownership in England and Wales see Land tenure in England, English land law and History of English land law.

Ireland

  • Land and Conveyancing Law Reform Bill, 2006[5]

Scotland

Angola

Importance of tenure today

Tenure in the developed world has become less of a rally point or issue than traditionally, however, with exploding homeless populations, the developed world is not immune from these issues. Furthermore, laws such as California Proposition 13 (1978) coupled with soaring home prices can severely limit supply, thereby exacerbating homelessness and informal housing arrangements, which can lead to tenure complications. At the same time, property is upended by climate change impacts that are becoming more frequent.

In the developing world, catastrophes are impacting greater numbers of people due to urbanization, crowding, and weak tenure and legal systems.

The concepts of landlord and tenant have been recycled to refer to the modern relationship of the parties to land which is held under a lease. It has been pointed out by Professor F.H. Lawson in Introduction to the Laws of Property (1958), however, that the landlord-tenant relationship never really fitted in the feudal system and was rather an "alien commercial element".

The doctrine of tenure did not apply to personalty (personal property). However, the relationship of bailment in the case of chattels closely resembles the landlord-tenant relationship that can be created in land.

Secure land tenure also recognizes one's legal residential status in urban areas and it is a key characteristics of slums. Slum dwellers do not have legal title to the land and thus are usually marginalized and ignored by the local governments.[6]

In 2012, the Committee on World Food Security, based at the Food and Agriculture Organization of the United Nations, endorsed the Voluntary Guidelines on the Responsible Governance of Tenure as the global norm, as the problem of poor and politically marginalized especially likely to suffer from insecure tenure, however, this is merely work in progress.

See also

References

  1. ^ "Till to Tiller: Linkages between international remittances and access to land in West Africa". www.fao.org. Retrieved 2017-07-19.
  2. ^ "National Geographic Magazine – NGM.com". ngm.nationalgeographic.com. Retrieved 2017-07-19.
  3. ^ "Archived copy". Archived from the original on 2010-06-23. Retrieved 2010-06-23.CS1 maint: Archived copy as title (link)
  4. ^ Stuart Leavenworth and Kiki Zhao (May 31, 2016). "In China, Homeowners Find Themselves in a Land of Doubt". The New York Times. Retrieved June 1, 2016. All land in China is owned by the government, which parcels it out to developers and homeowners through 20- to 70-year leases.
  5. ^ "Land and Conveyancing Law Reform Act 2009 – No. 27 of 2009 – Houses of the Oireachtas" (PDF). 2006-06-07.
  6. ^ Field, E. (2005). "Property rights and investment in urban slums". Journal of the European Economic Association. 3 (2–3): 279–290. CiteSeerX 10.1.1.576.1330. doi:10.1162/jeea.2005.3.2-3.279.

Further reading

  • John Baker, An Introduction to English Legal History (3rd edition) 1990 Butterworths. ISBN 0-406-53101-3
Apartheid legislation

The system of racial segregation in South Africa known as apartheid was implemented and enforced by a large number of acts and other laws. This legislation served to institutionalise racial discrimination and the dominance by white people over people of other races. While the bulk of this legislation was enacted after the election of the National Party government in 1948, it was preceded by discriminatory legislation enacted under earlier British and Afrikaner governments. Apartheid is distinguished from segregation in other countries by the systematic way in which it was formalised in law.

Asiatic Land Tenure and Indian Representation Act, 1946

The Asiatic Land Tenure and Indian Representation Act, 1946 (Act No. 28 of 1946; subsequently renamed the Asiatic Land Tenure Act, 1946, and also known as the "Ghetto Act") of South Africa sought to confine Asian ownership and occupation of land to certain clearly defined areas of towns. The Act also prohibited Asians from owning or occupying property without a permit when such property had not been owned or occupied by Asians before 1946.

Furthermore, it granted Indians in the Transvaal and Natal the right to elect Whites to represent them in Parliament and for Natal Indians to represent themselves in the Natal Provincial Council.

The Act deprived the Asian South Africans of communal representation and took away their fundamental and elementary right of land ownership and occupation. It is called and regarded universally by Indian people as the "Ghetto Act".

The act struck at the heart of Indian commercial and economic life. Not only did it intend to reduce the levels of Indian trade and reduce progress in the acquisition of fixed property, it also is thought to have reduced the opportunities of the masses of the Indian people to earn a decent living and ultimately condemn them to existence in increasingly over-crowded slums and locations. Thus on 31 March 1948, it is thought that about 6,000 Indians marched in protest to the Act in Durban, South Africa.

The sections of the act granting representation in Parliament and the provincial council were repealed by the Asiatic Laws Amendment Act, 1948. The rest of the act was repealed by the Abolition of Racially Based Land Measures Act, 1991.

Burgage

Burgage is a medieval land term used in Great Britain and Ireland, well established by the 13th century.

A burgage was a town ("borough" or "burgh") rental property (to use modern terms), owned by a king or lord. The property ("burgage tenement") usually, and distinctly, consisted of a house on a long and narrow plot of land (Scots: toft), with a narrow street frontage. Rental payment ("tenure") was usually in the form of money, but each "burgage tenure" arrangement was unique, and could include services.

As populations grew, "burgage plots" could be split into smaller additional units. (Amalgamation was not so common, until the second half of the 19th century.)

Burgage tenures were usually money based, in contrast to rural tenures which were usually services based. In Saxon times the rent was called a landgable or hawgable.

Copyhold

Copyhold tenure was a form of customary tenure of land common in England from the Middle Ages. The land was held according to the custom of the manor, and the mode of landholding took its name from the fact that the "title deed" received by the tenant was a copy of the relevant entry in the manorial court roll. A tenant – or mesne lord – who held land in this way was legally known as a copyholder.

Crofting

Crofting is a form of land tenure and small-scale food production particular to the Scottish Highlands, the islands of Scotland, and formerly on the Isle of Man.

Within the 19th century townships, individual crofts are established on the better land, and a large area of poorer-quality hill ground is shared by all the crofters of the township for grazing of their livestock.

Customary land

Customary land is land which is owned by indigenous communities and administered in accordance with their customs, as opposed to statutory tenure usually introduced during the colonial periods. Common ownership is one form of customary land ownership.

Since the late 20th century, statutory recognition and protection of indigenous and community land rights continues to be a major challenge. The gap between formally recognized and customarily held and managed land is a significant source of underdevelopment, conflict, and environmental degradation.In the Malawi Land Act of 1965, "Customary Land" is defined as "all land which is held, occupied or used under customary law, but does not include any public land". In most countries of the Pacific islands, customary land remains the dominant land tenure form. Distinct customary systems of tenure have evolved on different islands and areas within the Pacific region. In any country there may be many different types of customary tenure.The amount of customary land ownership out of the total land area of Pacific island nations is the following: 97% in Papua New Guinea, 90% in Vanuatu, 88% in Fiji, 87% in the Solomon Islands, and 81% in Samoa.

English feudal barony

In the kingdom of England, a feudal barony or barony by tenure was the highest degree of feudal land tenure, namely per baroniam (Latin for "by barony"), under which the land-holder owed the service of being one of the king's barons. The duties owed by and the privileges granted to feudal barons cannot now be defined exactly, but they involved the duty of providing soldiers to the royal feudal army on demand by the king, and the privilege of attendance at the king's feudal court, the precursor of parliament.

If the estate-in-land held by barony contained a significant castle as its caput baroniae and if it was especially large – consisting of more than about 20 knight's fees (each loosely equivalent to a manor) – then it was termed an honour. The typical honour had properties scattered over several shires, intermingled with the properties of others. This was a specific policy of the Norman kings, to avoid establishing any one area under the control of a single lord. Usually, though, a more concentrated cluster existed somewhere. Here would lie the caput (head) of the honour, with a castle that gave its name to the honour and served as its administrative headquarters. The term honour particular usefulness for the eleventh and twelfth centuries, before the development of an extensive peerage hierarchy.

This type of barony must be distinguished from a barony, also feudal, which existed within a county palatine, such as the barony of Halton within the Palatinate of Chester.

Fee simple

In English law, a fee simple or fee simple absolute is an estate in land, a form of freehold ownership. It is a way that real estate and land may be owned in common law countries, and is the highest possible ownership interest that can be held in real property. Allodial title is reserved to governments under a civil law structure. The rights of the fee simple owner are limited by government powers of taxation, compulsory purchase, police power, and escheat, and it could also be limited further by certain encumbrances or conditions in the deed, such as, for example, a condition that required the land to be used as a public park, with a reversion interest in the grantor if the condition fails; this is a fee simple conditional.

Feu (land tenure)

Feu was previously the most common form of land tenure in Scotland, as conveyancing in Scots law was dominated by feudalism until the Scottish Parliament passed the Abolition of Feudal Tenure etc. (Scotland) Act 2000. The word is the Scots variant of fee. The English had in 1660 abolished these tenures, with An Act taking away the Court of Wards..., since 1948 known as the Tenures Abolition Act 1660.

Fief

A fief (; Latin: feudum) was the central element of feudalism and consisted of heritable property or rights granted by an overlord to a vassal who held it in fealty (or "in fee") in return for a form of feudal allegiance and service, usually given by the personal ceremonies of homage and fealty. The fees were often lands or revenue-producing real property held in feudal land tenure: these are typically known as fiefs or fiefdoms. However, not only land but anything of value could be held in fee, including governmental office, rights of exploitation such as hunting or fishing, monopolies in trade, and tax farms.

Land reform

Land reform (also agrarian reform, though that can have a broader meaning) involves the changing of laws, regulations or customs regarding land ownership. Land reform may consist of a government-initiated or government-backed property redistribution, generally of agricultural land. Land reform can, therefore, refer to transfer of ownership from the more powerful to the less powerful, such as from a relatively small number of wealthy (or noble) owners with extensive land holdings (e.g., plantations, large ranches, or agribusiness plots) to individual ownership by those who work the land. Such transfers of ownership may be with or without compensation; compensation may vary from token amounts to the full value of the land.Land reform may also entail the transfer of land from individual ownership—even peasant ownership in smallholdings—to government-owned collective farms; it has also, in other times and places, referred to the exact opposite: division of government-owned collective farms into smallholdings. The common characteristic of all land reforms, however, is modification or replacement of existing institutional arrangements governing possession and use of land. Thus, while land reform may be radical in nature, such as through large-scale transfers of land from one group to another, it can also be less dramatic, such as regulatory reforms aimed at improving land administration.Nonetheless, any revision or reform of a country's land laws can still be an intensely political process, as reforming land policies serves to change relationships within and between communities, as well as between communities and the state. Thus even small-scale land reforms and legal modifications may be subject to intense debate or conflict.

Land tenure in England

Even before the Norman Conquest, there was a strong tradition of landholding in Anglo-Saxon law. When William the Conqueror asserted sovereignty over England in 1066, he confiscated the property of the recalcitrant English landowners. Over the next dozen years, he granted land to his lords and to the dispossessed Englishmen, or affirmed their existing land holdings, in exchange for fealty and promises of military and other services. At the time of the Domesday Book, all land in England was held by someone, and from that time there has been no allodial land in England. In order to legitimise the notion of the Crown's paramount lordship, a legal fiction - that all land titles were held by the King's subjects as a result of a royal grant - was adopted.

Most of these tenants-in-chief had considerable land holdings and proceeded to grant parts of their land to their subordinates. This constant process of granting new tenures was known as subinfeudation. It created a complicated pyramid of feudal relationships. (see also Lord of the manor). At the bottom of the feudal pyramid were the tenants who lived on and worked the land (called the tenants in demesne and also the tenant paravail). In the middle were the lords who had no direct relationship with the King, or with the land in question - referred to as mesne lords.

Land was granted in return for various "services" and "incidents". A service was an obligation on the part of the tenant owed to the landlord. The most important were payment of rent (socage tenure), military service (Knight-service), the performance of some form of religious service (frankalmoin) and personal/official service, including in times of war (serjeanty tenure).

Incidents, on the other hand, were rights conferred on the lord over the tenant's land or the tenant's person that arose in certain circumstances, most commonly on the death of the tenant. An important incident was that of escheat, whereby the land of the tenant by knight service would escheat to the Crown in the event either of there being no heirs, or the knight's being convicted of a felony.

Leasehold estate

A leasehold estate is an ownership of a temporary right to hold land or property in which a lessee or a tenant holds rights of real property by some form of title from a lessor or landlord. Although a tenant does hold rights to real property, a leasehold estate is typically considered personal property.

Leasehold is a form of land tenure or property tenure where one party buys the right to occupy land or a building for a given length of time. As lease is a legal estate, leasehold estate can be bought and sold on the open market. A leasehold thus differs from a freehold or fee simple where the ownership of a property is purchased outright and thereafter held for an indeterminate length of time, and also differs from a tenancy where a property is let (rented) on a periodic basis such as weekly or monthly.

Until the end of the lease period (often measured in decades or centuries; a 99-year lease is quite common) the leaseholder has the right to remain in occupation as an assured tenant paying an agreed rent to the owner. Terms of the agreement are contained in a lease, which has elements of contract and property law intertwined.

The term estate for years may occasionally be used. This refers to a leasehold estate for any specific period of time (the word "years" is misleading.) An estate for years is not automatically renewed.

Colloquially, "lease" and "leasing" are often a formalization of a longer, specific period as compared with a "rental" that created a tenancy at will, terminable or renewable at the end of a short period.

Sharecropping

Sharecropping is a form of agriculture in which a landowner allows a tenant to use the land in return for a share of the crops produced on their portion of land. Sharecropping has a long history and there are a wide range of different situations and types of agreements that have used a form of the system. Some are governed by tradition, and others by law. Legal contract systems such as the Italian mezzadria, the French métayage, the Spanish mediero, the Slavic połowcy,издoльщина or the Islamic system of muqasat, occur widely.

Sirajul Islam

Sirajul Islam is the chairman of the Board of Editors of Banglapedia, the national encyclopedia of Bangladesh, and the editor of the Journal of the Asiatic Society of Bangladesh. He is a prominent Bangladeshi historian, famous for his works on agriculture, British era land tenure and social history of Bengal.

Socage

Socage () was one of the feudal duties and hence land tenure forms in the feudal system. A farmer, for example, held the land in exchange for a clearly defined, fixed payment to be made at specified intervals to his feudal lord, who in turn had his own feudal obligations, to the farmer (principally those of protection) and to the Crown. In theory this might involve supplying the lord with produce but most usually it meant a straightforward payment of cash, i.e., rent.

It contrasted with other forms of tenure including serjeanty (the farmer paid no rent but had to perform some personal/official service on behalf of his lord, including in times of war) and frankalmoin (some form of religious service). For those higher in the feudal hierarchy, there was also knight-service (military service) as a condition of land tenure.

The English statute Quia Emptores of Edward I (1290) established that socage tenure passed from one generation to the next (or one nominee to the next such as newly appointed feoffees/trustees (to uses/trusts)) subject to inquisitions post mortem which would mean a one-off tax (a "feudal relief"). This contrasts with leases which could be for a person's lifetime or readily subject to forfeiture and rent increases. As feudalism declined, the prevalence of socage tenure increased until either it became the normal form of head tenure in the Kingdom of England (all types enabling grants underneath it of any leases or subleases, as today but also copyhold where lord of the manor). In 1660, the Statute of Tenures ended estates requiring the owner to provide (with the "incidents" of) military service and most freehold tenures (and other "estates of inheritance") were converted into "free and common socage".

The holder of a soc or socage tenure was referred to as a socager (Anglo-Norman) or socman (Anglo-Saxon, also spelt sochman, from the legal concept of a soke, from the verb 'to seek'). In German-speaking Europe, the broad equivalent was a Dienstmann. The etymology of socage according to William Blackstone is the old Latin word for a plough.

Subinfeudation

In English law, subinfeudation is the practice by which tenants, holding land under the king or other superior lord, carved out new and distinct tenures in their turn by sub-letting or alienating a part of their lands.The tenants were termed mesne lords, with regard to those holding from them, the immediate tenant being tenant in capite. The lowest tenant of all was the freeholder, or, as he was sometimes termed, tenant paravail. The Crown, who in theory owned all lands, was lord paramount.The great lords looked with dissatisfaction on the increase of such subtenures. Accordingly, in 1290 a statute was passed, Quia Emptores, which allowed the tenant to alienate whenever he pleased, but the person to whom he granted the land was to hold it for the same immediate lord, and by the same services as the alienor held it before.

Tenant-in-chief

In medieval and early modern Europe the term tenant-in-chief (or vassal-in-chief), denoted a person who held his lands under various forms of feudal land tenure directly from the king or territorial prince to whom he did homage, as opposed to holding them from another nobleman or senior member of the clergy. The tenure was one which denoted great honour, but also carried heavy responsibilities as the tenants-in-chief were originally responsible for providing knights and soldiers for the king's feudal army.

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