by Megarry & Wade
Chapter 3: Estates
The Complex Nature of Land Ownership: By the Doctrines of Estates indicate an interest in land of some particular duration, where coupled with the permanence of land, as opposed to destructible chattels, makes the law a lot more complex. As by the Estate, a large number of equitable and legal rights could and still can exist at the same time. Land law has to concern itself with many varieties of qualified ownership.
The Distinction Between Possession and Ownership: It is by the word “fee” that denotes the estate is one of inheritance, where the (family) Estate was one which might continue forever. Therefore as two distinct legal rights can exist at the same time in chattels, is to understand the difference between that of possession and that of ownership. Example, If A lends his watch to B, the ownership of the watch remains vested in A, while B has possession of it. In the case of land, a large number of ‘possession’ legal rights can exist at the same time. In the case of chattels though, as the watch, ownership is absolute.
Definition of Estate: Estate: The ‘interest’ which anyone has in lands, or in any other subject of property; tenements and hereditaments signifies such interests as the tenant has therein; The condition or circumstances in which the owner stands with regards to his property. In this sense, “estate” is constantly issued in conveyance in connection with the words “Right”, “title” and “Interest” and is in a greater degree synonymous with all of them.
Definition of Chattel: Chattel: An article of personal property; any species of property not amounting to a freehold or fee in land… The name given to things which in law are deemed personal property. Chattels are divided into chattels real and chattels personal; chattels real being interests in land which devolve after the manner of personal estate, as leaseholds. As opposed to freeholds, they are regarded as personal estate. But, as being interests in real estate, they are called “chattels real,” to distinguish them from movables, which are called “chattels personal” – citizen status.
The Feudal Foundation of Tenure: Upon the theory associated with the Statute of Quia Emptores 1290, that there is no absolute ownership of land, but that land is held in tenure with the presumption that it is held directly of the Crown; it being subject perhaps to some assigned easements, mortgages and the like which give other peoples (Corporation) interest limited rights of the (Estate) property in the land through a ‘contract’ article bound to the Chattel Personal – citizen status. The distinction between the systems of estates is of vital importance that Estates were divided into two classes; freehold estates and leasehold estate. Of freehold, three estates exist:
Classification of Freehold Estates:
First, (i) fee simple is an estate which endure for so long as the original tenant or any of his heirs survived in perpetual.
Second, (ii) fee tail continued for so long as the original tenant or his lineal descendant survived. Not perpetual.
Third, (iii) life estate lasted for the immediate life only; known as estate pur autre vie – for the life of another. – in service.
Characteristics of Freehold Heirs and Occupancy: The words “simple” and “tail” distinguished the classes of heirs who could inherit, including financial collateral. “Simple” also signifies absolute, as opposed to conditional. A “life estate” – pur autre vie – on the other hand is not a “fee” and cannot continue forever, as upon its death there is no descends to the pur autre vie as heir, being artificially conditioned through a corporation, to be passed under the special rules of occupancy. Life estate – pur autre vie are sometimes called mere “freeholds”, as opposed to “freeholds of inheritance”, of “simple” and “tail”. To understand and to distinguish the differences of estates is vital, as each estate of freehold can exist in a number of varied forms which will be discovered in due course.
Evolution of Leaseholds: To distinguish the usage of leaseholds is also of import. At first, the three estates of freehold were the sole recognised by law. Another lawful right that evolved to the possession of land is known as leaseholds as a “tenancy at will” under which the (Crown) tenant could be ejected at any time and therefore gave him no estate at all. “Terms of years” grew up outside the system of estates, regarding not as property (as object of ownership) but as personal contracts binding only on the Life estate – pur autre vie (citizen status) parties. The leaseholder was not fully protected against other persons until the end of the 15th century, and the nature of the remedy the action of Trespass in Ejectment marked off leaseholds from the other estates. When they become fully protected by the law of property, they became as redeemed estates.
Classification of Leasehold Interests: Any leasehold (or licence) is inferior to an awakened estate in any freehold! It is wise to distinguish between a chattel interests upon personality (Citizen status), to that of a (Subject of the Crown) freehold interest. Leasehold is to be classified as personal and not as Real Property.
There are categories of leaseholds to be aware of, where they are devised upon a maximum duration as fixed in time…
Fixed Term Leases: (a) fixed term of certain duration; as like under a lease of 99 years, with the possibility of the term being curtailed under a provision to the effect in the lease does not affect the basic conception, which is one of certainty of duration in the absence of steps being taken for the extension of curtailment. – Britain had a 99 year lease over Hong Kong!
Periodic Tenancies: (b) fixed term with duration capable of being rendered certain. A lease of land “to A from year to year” to continue indefinite unless either landlord or tenant takes some steps to determine it on a fixed date, to make an agreement as if both parties made new terms for the ensuing year. Be it quarterly, monthly, weekly and other periodical tenancies. – basic leasehold upon building premises.
Tenancies at Will and Sufferance: (c) Tenancies at will and at sufferance, relate to leaseholds of Life Estate – pur autre vie ‘citizen parties, which can continue indefinite or may be determine by either party at any time. This involves tenure but of no definite estate, because there is no defined duration of interest.
The Nature of Citizen Tenure: A citizen’s tenure is precarium because the Government only exist at the sufferance of the will, of the people’s right to vote into a modernised secular democracy.
Holding in Due Course and Adverse Possession: The Tenant always “Holds in Due Course” (i.e. remains in possession once he owns the responsibility) without the necessity of Government as landlord’s assent or dissent. An awakened Tenant with status as a ‘Subject of the Crown within the “Estate in Fee Simple” or “In Tail” can innovate and originate a pretext, to prevent the conditioned occupation of the citizen status being regarded as “Adverse Possession” (under the Articles of War) over the Life Estate – pur autre vie citizen party status.
Historical Precedents of Tenure: A Tenure with an innovation as like the American “Declaration of Independence”, that was “Holden in Due Course” during the time of its war with Great Britain, which bar the British landlord’s title over the precarium Life Estate – pur autre vie American as the citizen, altogether.
Integration of Leaseholds into Property Law: Leaseholds were regarded as mere contractual rights to occupy land. They were not regarded as Estates at all. Over time the law gave them full protection as proprietary interests and they were added to the lists of recognised estates, as every tenant must hold by tenure of some sort, though they are always outside the feudal system of land holding as affected by the Statute of Quia Emptores 1290, which applies only to Fee Simple, and so does not prevent the grant of sub-lease. Tenure is essential between landlord and tenant, and leaseholds are within the contractable statutory term “land of any tenure”. Any lease is still of personality as opposed to realty.
Development of Settlements and Dispositions: Where the Estates of freehold were particular to land law, and there was no corresponding system for personality, other methods of conveyance were introduced through the technicalities of settlement, the novelty of wills and trusts were invented. “A” could carry out his/her design by employing one or another of new kinds of disposition, be it “In Possession”; “in Remainder” or “in Reversion”. A “settlement disposition” estate “in possession” gives an immediate right to possession and enjoyment of the land. – refer to Trust of Land and Appointment of Trustees Act 1996.
Future Interests: Remainders and Reversions: Estates “in Remainder” and “in Reversion” are of future interest and meantime some other person is usually entitled in possession. A “Remainder” signifies a future gift to some person not previously entitled to land (corporation holding). A “Reversion” signifies the (Spiritual) residue of the owner’s interest after he has granted away some lesser estate in possession to some other person – Celtic Theatre Group. A “Reversion” will be thus found in any case where the owner (willing to be responsible) has made a grant which does not exhaust the whole of his interests, especially where the interest is of the Doctrine of Seisin.
The Doctrine of Seisin: Only a freeholder can have Seisin which denotes “Peace and Quiet”. A man who was put in Seisin of land was “set” there and continued to “sit” there, thus denotes quiet possession of land but of a particular kind. Where a leaseholder merely had possession; it is his Landlord as the freeholder that was seised. It is essential that someone remained seised even after he had granted a contractual term of years and given up physical possession of the land. A “Reversion” receipt of rent was evidence of Seisin upon the fact that only a freehold tenure carries Seisin with it.
Seisin as a Feudal Fact: Possession by a freeholder and willing to be responsible embodies the fundamental idea of Seisin that can disregard other interests where the King’s Courts do not afford protection over such foreign interest. Seisin is characteristic product of the feudal system. Seisin is a FACT not a right. By a Reversion, a resident of the Crown could recover land from (corporate possession of holding) and be put back into Seisin.
The Maxim of Ad Coelum: Pre-eminent among an Estate Fee Simple owner’s rights are his right of alienation – the right to transfer to another the whole or any part of his interest in the land and his right to everything in, on, or over the land. Therefore, the ancient maxim; cujus est solum, ejus est usque ad coelum et ad inferos, meaning that the owner of the soil is presumed to own everything “up to the sky and down to the centre of the earth, could be appropriated upon an ‘Accord and Satisfaction’ account.
Chapter Four: Estate “In Tail”
Words of Limitation and Purchase: In a conveyance inter vivos (transfer of land between persons) or in a will, the “words of limitation” are the words which limits, define or mark out the estate to be taken, as conferred by ‘words of purchase”. In the technical sense a ‘purchaser’ is a person who takes property by grant (by gift or sale), or by an operation of law (by intestacy). The words “in Fee Simple” are words of limitation as to measure out the Quantity of Estate. A freehold estate of inheritance includes the words “heirs”, but in the case of ‘Gifts by Will’, the attitudes of the courts are different. Most “Wills of Land” were enforced by the Court of Chancery which looked at the intent of any transaction than the form. By the Statute of Wills 1540, Courts followed the same practice of liberal constructions where Wills were often handmade. Effect would therefore be given to the testator’s intention, provided that it was clear.
Fee Simple in Registered Land: After 1925, there has been no necessity for words of limitation to create a Fee Simple. In the transfer of registered land, no words of limitation are employed. The form of transfer defines the property by reference to its registered title; “Shall pass to the grantee the fee simple or other the whole interest which the grantor had power to convey in such lands unless a contrary intention appears in the conveyance”.
Creation of a Fee Tail: To create a “Fee Tail” though, it is necessary to use the words “heirs” to follow by some words of procreation i.e., words which confined ‘heirs’ to the lineal descendants of the original grantee, who are to be known as “heirs special” as of particular class of descendants.
Entailed Interests and Spes Successionis: In a conveyance “to A and their heirs of his body” are words of limitation and not of purchase. They conferred no estate on A’s heir presumptive or heir apparent, but merely a spes successionis. A person requires to purports by an instrument to grant another an entailed interest in Real or personal property, as a declaration that the property is held absolute for the person to whom the interest was granted. As example “A” purports to create a settlement for ‘Blackacre’ under which “B” is to be tenant in tail. “B” will be absolutely entitled to the property.
Modern Status of Entails: Under the Trusts of Land and Appointment of Trustees Act 1996, Entails (“Fee Tail”) have become obsolete and their prospective abolition under conveyance was recommended. But not so if the Entail was in Reversion! Or that any words showing an intention to create an entail were sufficient in a “Gift of Attesting” Will. Law of Property Act sec 130 (1) makes the rule for creation of an Entail more rigid. That expression would have to been effective to create an Entail in a deed before 1926 must be employed, making the Entail a matter of technical words as like a “Chartered tenure” rather than a matter of intention. Special provisions were made for expressions that could have formerly created an Entail in a Will, could not be so after 1926, is a subject of some comment in law.
Intentions Behind Life Estates: Words showing an intention to create a “Life estate” has been explained as the military occupation regarded as “Adverse Possession” over the Life Estate – pur autre vie citizen party. It is an imperfect expression as of a tenancy for an indefinite period more than from year to year. In order to create a Life Estate – pur autre vie citizen party, of words showing an intention to do so must normally be used i.e., as of the propagation for the necessity of a Governmental citizen election, for a registered political party to represent their national interest, to turn over another every four year term of Office!
Legal Fictions and the Strawman: Property is condemned by the “personality” of the fictional intendment of law, deemed the property of enemies. Eo nomine – ‘by or in that name’ (The Strawman)…
The Native Character and In Itinere: Though, a native character (Subject of the Crown) reverts as soon as he puts himself in itinere – on a journey; on the way; and to goods in route to a purchaser – to return to his native country (territory) animo revertendi – the intention of returning to the Old Customs, to create an entail sufficient in a “Gift of Attesting” Will: – Celtic Theatre Group holding.
Qualifications on Freehold Ownership: The freedom of the freehold owner is qualified in many ways. He is Naturally Subject to such rights as others (secret liened corporations) have over his land, such as a Right of Way (and of Light). Though there has been much legislation imposing restrictions and liabilities in the public interests, subjecting them to control by public authorities. Statutes are of ‘administration’ importance, but they do not affect the principles of the Laws of Real Property!!! Any new accretion of substance of various possible transactions in land is not thereby altered. Statutes form a body or regulatory or administrative law which stands apart from “Property law”.
The Nature of Absolute Ownership: The Fee Simple is the most substantial (Natural Rights) estate which can exist in land. Though held in tenure, in practice it is absolute ownership but does not own the form, even though nearly all traces of the old feudal burdens have disappeared. A statement upon Fee Simple is “the first thing the student has to do is to get rid of the idea of absolute ownership”. Then another statement accounts “and the next thing the student has to do is painfully to reacquire it”. His powers of using the land are indeed limited by statute, but they are not limited by any inherent narrowness in the concepts of property in land.
Alienation and the Airspace Maxim: Pre-eminent among a Fee Simple owners’ rights are his Right of Alienation. The right to transfer to another the whole or any part of His Interest in the land and His Right to everything in, on, or over the land, either By Will or inter vivos subject to certain qualifications. There is an ancient maxim: cujus est solum, ejus est usque ad coelum et ad inferos; meaning that the owner of the soil is presumed to own and “hold tenure” to everything “up to the sky and down to the centre of the earth”. This maxim has been restricted somewhat as regards to the rights of airspace. However, the upward extent of a landowner’s ownership of the air column is substantial of “Natural Rights”, as for the ordinary use and enjoyment of the land and structures upon it. One has a “Right to Light”!
Ancient Lights and the Quantum of Light: Long established rights to lights are sometimes called “ancient lights”. The ‘Quantum of Light’ as an easement of light can exist only in respect of a building which receives it through a window, or other aperture such as a skylight, greenhouse panels etc. The amount of light where a tenement is entitled was determined by the House of Lords in Colls v Home and Colonial Stores Ltd. [1904]; where an amount of light is accorded to the ordinary notions of mankind for the comfortable use of the premises as a dwelling, or for the beneficial use of the business premises; as like a Chapel at Ease.
Application of Mutatis Mutandis: The doctrine of mutatis mutandis applies as to any premises, e.g. as a church, greenhouse, photographic studio. The measurer is thus “ordinary user”. The test is not “how much light has been taken away?”, but “how much light is left” depending upon the nature of the premise. Light granted by a ‘Custom and Usage’ to be measured upon can be acquired as a “Quantum of Light”, as like by the ancient maxim: cujus est solum, ejus est usque ad coelum et ad inferos; to own and “hold tenure” to everything “up to the sky and down to the centre of the earth”, as a new accretion of substance.
Control Over Treasure: Where the owner is prima facie in possession, he is then entitled to manifest an intention to exercise control over things which may be upon the land under the provisions of the Treasure Act 1996, where all the Treasure is vested in the Crown or its franchise, or of a lineal descendants of the original grantee, who are to be known as “heirs special” as of particular class of descendants.
Treasure is elaborately defined.
First, certain coin and other objects at least 300 years old when found.
Second, any object at least 200 years old when found and of a class designated by the Secretary of State as being of outstanding historical, archaeological or cultural importance.
Third, any object which before the Act of 1996 came into force would have been treasure trove.
Prior Interests in Treasure: The Title that vests in the Crown or its franchise is however subject to any prior interests or right in the property.
The Doctrine of Accretion: The owner is also entitled to land added by gradual accretions, as where His Territory is extended by deposits caused by currents in the sea, or by a lake or by the actions of winds or Light, or even human action provided that it is not the deliberate action of the claimant himself. The Doctrine of Accretion requires that the process should be gradual and imperceptible. Sudden accretions of substantial size belong to the Crown as like an island that arise in the sea. A grant will normally pass the owner’s whole interest in the space above and below the land, example that a lease will give the tenant the Right to the Heavens above the land let.
Duty of Care and Injunction Remedies: A “measured duty of care” on a landowner being presumed to know of a defect or condition giving rise to a hazard on his land, to do reasonable in all circumstances; to prevent or minimise the known risk of damage and injury to his neighbour or to his property. What is reasonable depends upon the landowners individual circumstances. A freeholder cujus est solum, ejus est usque ad coelum et ad inferos; can sue for damages or seek injunctions against those (corporations). He has a right to “Prohibition Injunction” to restrain any trespass or nuisance on his land whether or not the trespass harms him. It will be granted almost invariably for a violation of his airspace and refused only in exceptional circumstances. In such a case, the court will not grant an injunction and then suspend its operation.
Definition of Territorial Terms: TERRITORIAL, TERRITORIALITY. These terms are used to signify connection with; or limitation with reference to, a particular country or territory. Thus, “territorial law” is the correct expression for the law of a particular country or state, although “municipal law” is more common.
Access Orders for Preservation: An “Access Order” from a Court enables a man to do work that are reasonably necessary for the preservation of all or any part of his land, as an abatement in relation to the exercise of easements and profits.
Summary of Chapter 3 & Chapter Four: Estates
The Concept of Estates & Chattels
Permanence of Land vs. Chattels: Land is permanent, whereas chattels (personal property) are destructible. Because of this permanence, multiple legal and equitable interests can exist in the same piece of land simultaneously.
Ownership vs. Possession: In chattels (e.g. a watch), ownership is absolute. In land, absolute ownership does not exist; instead, various parties hold possessory legal rights and interests of particular durations (estates).
Key Terms:
Estate: The degree, quantity, nature, or extent of interest a person holds in property.
Chattel: Personal property, divided into chattels personal (movable items) and chattels real (interests in land arising from personal estate, such as leaseholds).
Feudal Foundation: Under the Statute of Quia Emptores 1290, all land is held under the presumption of tenure directly from the Crown.
Freehold Estates & Doctrine of Tenure
Three types of Freehold Estates:
Fee Simple: An estate of inheritance that lasts indefinitely for as long as the tenant or any heirs survive (closest equivalent to absolute ownership).
Fee Tail: An estate limited to the lineal descendants (“heirs special”) of the original grantee, ending when the bloodline ends.
Life Estate (pur autre vie): An estate lasting only for the duration of a specific person’s life.
Leasehold Estates
Nature of Leaseholds: Originally regarded merely as personal contracts rather than real property, leaseholds evolved through the 15th century (via the action of Trespass in Ejectment) into fully protected proprietary interests.
Three Categories of Leaseholds:
- Fixed term of certain duration: E.g. a 99-year lease.
- Fixed term capable of being rendered certain: Periodic tenancies (yearly, monthly, weekly).
- Tenancies at will / at sufferance: Indefinite arrangements terminable by either party at any time.
Settlements, Reversions, and Seisin
Future Interests: Land can be transferred In Possession (immediate right to enjoyment), In Remainder (future gift to a new party), or In Reversion (residue of interest returning to the original owner after a lesser grant ends).
Seisin: A medieval doctrine signifying quiet legal possession held strictly by a freeholder (a leaseholder merely has possession, while their landlord remains seised).
Creation and Evolution of Entails (Fee Tail)
Words of Limitation: Technical words used in conveyances to define the quantity of the estate granted (e.g. “to A and the heirs of his body”).
Statutory Changes: Under the Trusts of Land and Appointment of Trustees Act 1996 and the Law of Property Act 1925 (sec 130), fee tails have largely become obsolete or restricted to strict technical phrasing in deeds.
Rights, Limits, and Hazards of Freehold Ownership
Limits on Ownership: Freehold ownership is subject to external rights (such as rights of way, right to light) and administrative statutory controls, though statutes do not alter underlying property law principles.
Airspace & Light (cujus est solum…): The legal maxim cujus est solum, ejus est usque ad coelum et ad inferos gives the owner rights above and below the land. Airspace ownership is limited to what is required for ordinary use and enjoyment. The “Right to Light” (Colls v Home and Colonial Stores Ltd) guarantees sufficient light for reasonable use, rather than restricting all loss of light.
Treasure & Accretions:
Under the Treasure Act 1996, designated historical objects found on land vest in the Crown.
Gradual natural additions to land (accretion) belong to the landowner, whereas sudden large changes (e.g. islands emerging in the sea) belong to the Crown.
Duty of Care & Remedies: Landowners owe a measured duty of care regarding hazards on their land and possess the right to seek a Prohibition Injunction to prevent trespass or airspace violations.
