Land Law, a bit of history, and the two estates in land

Foundations of landlord and tenant law – part 1

Land law is pretty complicated. The subject matter, land, is, after all, both very important and limited. There may be a few bits at the edge of the country where land is dropping into the sea, and other bits where new land is being created (by accretion or drainage), but by and large the land area in this country is fixed.

An ungodly jumble

Land law also goes back a long way. Our current laws often have their feet in the past, and land law is no exception. From William the Conqueror (pictured right) onwards the country was owned by the King who gave it out to his Barons under various complicated agreements, and they then gave it out to their people under other complicated arrangements.

Feudal incidents, seisin, corporeal and incorporeal hereditaments, free and villein socage, curtesy, feoffors and cestury que use – you don’t really want to hear about these, and happily, I am not going to tell you about them (not today anyway). If you are interested in this sort of thing, there is an excellent book An Introduction to English Legal History by J H Baker which explains it all in detail (and now there is also my History of Law Blog).

Suffice it to say that land law remained unbelievably complex right down to the start of the last century. Oliver Cromwell (not a man to mince words) is said to have described it as “a tortious and ungodly jumble”.

Good for the lawyers, bad for the rest of us

Sometimes, for example, it was so hard to find out who really owned a piece of land, it was practically impossible to sell it at all. Nice for the lawyers (all that legal work) and people who wanted to prevent property being sold, but not particularly good otherwise.

Then there were all the different kinds of ownership of land and the complicated methods of transferring it (or ‘conveying’ it) to another person. It was a nightmare.

Finally, some simplification

Land law in this country was finally simplified by a series of acts passed at the end of the 19th century and the first part of the 20th century, culminating in the Law of Property Act 1925.

Under this act, as set out in section 1, there can only be two types of legal ‘estates’ in land:

(1) The only estates in land which are capable of subsisting or of being conveyed or created at law are—
(a) An estate in fee simple absolute in possession;

(b) A term of years absolute.

Estate in fee simple

This is what you normally think about when you say someone owns land.

Technically the Queen is still nominally the owner of all land in England and Wales (and Scotland and no doubt Northern Ireland too). So in that sense, the feudal system is still with us.

However apart from that, if you own an estate of land in fee simple, you own the land, period. ‘Estate’ does not necessarily mean a great big landed estate. It can also be a terraced house, a field or a piece of woodland. Any area of land. So if you own your house, that’s you.

You own it absolutely, forever (until you sell it, or give it away, or lose it in some other way or until you die and it passes on to someone else). You may have a mortgage and a right of way crossing the back garden, plus there are lots of other qualifications that I could add if I wanted to make this blog post unbearably long and tedious, but basically, it’s yours.

A term of years

This is the lease. Here you own the land (which includes flats) but only for a period of time, ‘a term of years’. While the lease lasts, the property is yours. But when it ends, then the property reverts back to the original owner. Or whoever has bought the ‘reversion’ from the original owner.

However, unlike the fee simple, the owner of the lease, the lessee or tenant, has to pay rent to the original owner – the lessor or landlord. If he does not, then the lessor may be able to go to court and get the lease ended, allowing him to get the property back early.

There will also normally be a written agreement about the lease of the property, and again if the lessor fails to comply with this, the lessor may be able to get the lease ended early. So although a lease is an ‘estate in land’ it is less permanent than the fee simple.

A tenancy, by the way, is a ‘term of years’ and so a tenancy (even if it is just a rolling monthly periodic) is a legal estate in land.  In the same way that a 999 lease is.

Simpler but not simple

The Law of Property Act 1925 may have simplified things considerably but they can still get complicated.  For example:

• Land owner A might let out part of his property to tenant B,
• who then sublets it again to tenant C.
• A, in these circumstances, is known as the ‘head lessor’.
• However, if A sells the freehold (and reversions) on to D, then D will be the head lessor and direct landlord to B.
• Maybe B bought his lease with a mortgage with Bank E,
• If B defaults on his mortgage payments, Bank E might repossess the property.
• If so, until they sell it on, Bank E will then be the tenant of D and landlord to C.
• It is possible that C might be able to buy B’s lease, in which case C’s lease would merge with it and be subsumed.
• So then it would then just be D the landlord/lessor and C the tenant/lessee.

Are you still with me?

There are also complications where more than one person owns property together. We will talk about that next time.

William the Conqueror coin photo from Wikipedia