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. In other words, land tenure system implies a system according to which land is held by an individual or the actual tiller of the land. It determines the owners rights and responsibilities in connection with their holding. 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
Main articles: Fief and Feudal land tenure in England

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 notions 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

Canada
Further information: Land ownership in Canada

China

Land in China is state-owned or collectively owned. 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, climate-change impacts have become more frequent, affecting property values.

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

Colonial land-tenure systems have led to issues in post-colonial societies.[6]

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. Professor F.H. Lawson in Introduction to the Laws of Property (1958) has pointed out, 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 characteristic in slums. Slum-dwellers do not have legal title to the land and thus local governments usually marginalize and ignored them.[7]

In 2012 the Committee on World Food Security based at the Food and Agriculture Organization (FAO) 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.

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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. For example: Leonard, Rebeca; Longbottom, Judy, eds. (2000). "Colonial land tenure system - Droit foncier colonial". Land Tenure Lexicon: A Glossary of Terms from English and French Speaking West Africa. London: International Institute for Environment and Development (IIED). p. 14. ISBN 9781899825462. Retrieved 27 July 2019. [...] throughout West Africa, because of the great difficulties in enforcing land law, decisions about land claims have more often reflected the power and influence of the different stakeholders, rather than enforcing the letter of the law [...].
  7. 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
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