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Historic English Land Laws

By: Louise Smith, barrister - Updated: 27 Jul 2012 | comments*Discuss
Land Ownership Landlord Tenant Property

Traditionally English land laws were complex and there were many different ways in which an individual could have an interest in a piece of land or the building on it. In 1926 the Law of Property Act 1925 (LPA) came into effect which simplified the laws and rules relating to land.

Land or Real Property

In legal terms land is also referred to as real property - as opposed to personal property, (the individual items that a person may own). Technically ownership of land includes ownership of the air above and the ground beneath it. However, in practice any valuable minerals or substances contained in the ground may be owned by a public authority or a company. Equally, ownership of the air above a piece of land is restricted to the height required for normal use, to erect a building. This is why homeowners cannot close the airspace above their properties or charge aeroplanes a fee to travel through it.

Feudalism and English Land Law

For centuries English land laws were based on the feudal system introduced at the time of the Norman Conquest in 1066. The feudal system meant that, for most people, there could be no such thing as absolute ownership of land. Instead the country was divided up into pockets of land controlled by individual lords. The lords could allow tenants to use the land if they paid certain rents. In return for this, and other benefits, the lord had an obligation to protect the tenant and his interest in the land. (This is the basis for the modern word landlord.) The Normans also introduced the principal of primogeniture under which land passed to the oldest son of the owner upon his death.

In absolute terms all land was owned by the Crown - individuals simply possessed the right to use it. Somebody with the right to a piece of land was effectively a tenant of the Crown. This historic rule can still be detected in the terminology used today. When two or more people own a piece of land together they are said to own it as either joint tenants or tenants in common. (The word tenant comes from the French for ‘holding’ and meant somebody who held the land.)

Estates and Interests in Land

A person who has the right to use a piece of land is said to own an estate in it. An estate is the length of time during which a person is entitled to make use of the land. The closest to absolute ownership of a piece of land is represented by the freehold estate.

There may be a series of diminishing estates deriving from the freehold. For example, the owner of the freehold may grant a long lease in respect of the property entitling the person who owns the leasehold to use the land for a certain number of years. The leaseholder may decide to rent the property to tenants, who will also acquire an interest in the land.

Different Ways of Owning Land

The historic “fee simple” was the closest equivalent of modern freehold ownership. However, prior to the LPA there were additional forms of ownership.

Pursuant to the principal of de donis conditionalibus, introduced by a 1285 statute, land could be owned under a “fee tail” or an entailed estate. This meant that the (male) owner of land could pass it on to his (male) heirs. This law was intended to protect the rights and interests of the land-owning aristocracy by keeping their land within the family. However, if the owner had no male heirs the property would revert to the original owner. This would render the wife and female heirs of the deceased owner homeless and, quite possibly, penniless. (And provide the plot of many a romantic novel.)

An even more tenuous form of “absolute” ownership was the life estate. This generally meant that the land could be used throughout the owner’s life but would revert to another owner when they died. Once again the owner’s family would be left bereaved and homeless. More precarious still was the estate “pur autre vie”. It does not take an expert in old French to work out that this was an estate that lasted while somebody else remained alive. Under this form of ownership the whole family becomes homeless upon the death of somebody they may never have met.

Ownership of Land After the Law of Property Act 1925

The LPA 1925 swept away these more esoteric forms of land ownership and brought many of England’s land laws together in one statute. Whilst the introduction of the LPA represented a significant step towards modernising English land law, the historic system lives on in some of the terminology still used in England’s 21st Century land laws.

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