THEORY OF TENURE
A feudal pyramid with the King at the top and the actual occupants of land at the base was thus constructed. Each of the sets of services provided to the King was known as a tenuere, for it showed upon what terms land was held. This has shown that land was held for a variety of services. But whatever the nature of the services, all tenants had one thing in common, namely that they held land of a superior lord. Tenure connotes not merely the holding of land but also the holding of land from a superior lord and that the land is held in return for certain services by the tenant to his lord.
The two most fundamental doctrines of land law emanated from this. The first doctrine is tenure as discussed above. The other doctrine is of estate. That land held in tenure is also held for an estate. That is, for some period of time. Estate therefore is concerned with the length of time for which land is held. It is an interest in land of defined duration.
CATEGORIES OF ESTATES
Estates were divided into two categories:
- Freehold Estates
- Estates Less than Freehold or Leasehold Estates
Freehold Estate was one whose duration was uncertain. There were three estates of freehold. They included:
- Fee simple, which was near to absolute ownership;
- Fee tail, which continued for as long as the original tenant or any of his lineal descendants survived.
- Life Estate, which lasted for life only.
Estates less than Freehold or Leasehold Estates have one marked distinction. Which is that the maximum duration is fixed with time. They can be divided into three principal categories:
- A fixed term of certain duration in which a tenant may hold the land for a fixed term of certain duration, as under a lease for 99 years.
- A fixed term with duration capable of being rendered certain as for a lease of land to someone from year to year.
- Tenancy at Will is a type of leasehold, which may continue indefinitely or may be determined by either party at any time.
LEASE TODAY
A lease is an estate or interest in land of defined duration. It is sometimes called a term of years or demise. A lease has both a contract and in most cases an estate. Further a lease has two essentials namely exclusive possession and certainty of duration.
LEASE AS CONTRACT
A lease is a contract for the exclusive possession and profit of land for some determinant period. The consideration in the contract is usually but not always the payment of rent. Rent is regarded as a contractual payment for the use of the land. Many have defined the word “rent” and it is taken to include the performance of services. In Knights case (1588) 5 Co.Rep.54b at 55a. it was settled that there can be a valid lease even though no rent is payable.
The consideration furnished by the tenant may include
- the payment of a premium; remission of interest on a debt owed to him by the landlord;
- his undertaking to perform the covenants in the lease;
- the mere acceptance of the lease by the tenant.
Like a contract, a lease may be frustrated. In National Carriers Ltd v Panalpina (Northern) Ltd (1981) AC.A675
In Hussein v Mehlman (1992) 2 E.G.L.R 87 the tenant treated the lease as at an end because of landlord’s failure to carry out repairing obligations. Furthermore, the courts are willing to imply terms in the lease as they do for contracts. The court will set aside a lease induced by fraud of one of the parties as was held in the case of Killick v Roberts(1991) 1 W.L.R. 1146.
Under the Statute of Frauds 1677 a contract for the sale or other disposition of land or any interest in land is unenforceable unless evidenced in writing or by a sufficient act of part performance. The granting of a lease and assignment of a lease whether legal or equitable is a disposition of an interest in land. Thus any contract for the assignment or granting of a lease, legal or equitable, must comply with the requirements of the statute of Frauds.
LEASE AS ESTATE
A lease is an estate in land of defined duration. It is capable of subsisting; as a legal estate, but it must be created in the manner required by the law and satisfy the definition of a 'term of years absolute' otherwise it is an equitable interest.
There are two important characteristics of an estate. A lease has the two important characteristics of an estate and these are
- Indication of the duration of the holder’s interest in the land
- The holder is able to recover the land from anyone who dispossesses him.
ESSENTIALS OF A LEASE
A lease has two essentials to be satisfied for it to be valid namely exclusive possession and certainty of duration
EXCLUSIVE POSSESSION
This right involves excluding all others, including the landlord, from the premises. If the lease does not have the right to exclusive possession, it is likely that one holds merely a license.
A license is also inferred if the landlord remains in general control of the property (for example in an inn or a boarding house) In Wells v Kingston Upon Hull Corp. (1875) a graving dock was ‘let’ but the corporation retained the right to open and shut gates and clean the docks. It was held that only a license and not a lease had been created because general control remained with the corporation.
More recently in Somma v Hazelhurst the court applied the test of the intention of the parties as inferred from the parties and surrounding circumstances, when determining whether a license or lease had been created.
However the decision in Street v Mountford had it that the intention of the parties is no longer essential. In deciding or examining agreements, the courts have to establish the element of exclusive possession.
A license rather than a lease may be inferred in exceptional circumstances even where exclusive possession exists. This may be in the case of family arrangements. In Cobb v lane it was held that the existence of family relationships does not prevent a tenancy. In Nunn v Dalyrymple.
Acts of friendship and charity. A license may be inferred.
CERTAINTY OF DURATION
The date of commencement of the lease and the duration of the lease must be either fixed or ascertainable before the lease takes effect. If only one of the two requirements above is complied with, it is not a lease. In Lace v Chantler, a lease for the duration of the second world war would have been void had it not been for the provisions of the Validation of Wartime Leases Act, 1944 which converted such leases into terms of 10 years.
CONCLUSION
The first thing to note about land law is that no subject can own land. Theoretically all land belongs to the Crown and the only person who is capable of owning land is the monarch. This is an idea which dates from the Norman conquest in 1066 and which persists even today. The subject cannot therefore own the land upon which he lives or runs his business, but he is allowed the use of the land by the Crown.
What the subject owns is a series of rights and duties in relation to that piece of
land. Understandably lawyers have given a name to the interest in land which the
subject holds, and that name is an ‘estate in land’. So the land belongs to the Crown and the subject owns an estate in the land, which gives him certain rights in relation to it. Thus a freehold owner is said to ‘hold land of the Crown’. At one time it was usual for an estate owner to render services to the Crown in return for the right to use the land, but these services are now performed only in the rarest of cases and tend to be regarded as an honor rather than as an obligation (for example, the duty to supply a pair of gloves for the monarch to wear at his coronation).
The relationship between the freehold owner and the Crown is called ‘tenure’
(from the Latin word ‘tenere’ which means ‘to hold’). At one time there were many
types of freehold tenure, classified according to the nature of the services to be
rendered by the estate owner. Today only one of these forms of tenure remains and that is called ‘free and common socage’. For all practical purposes the doctrine of tenure has little modern significance, and most freehold owners are completely unaware of their tenurial relationship with the Crown.
In the case of leasehold property, the relationship between a landlord and his
tenant is also one of tenure, although it usually involves the payment of rent rather than the performance of services.
BIBLIOGRAPHY
1. Ridall JG Introduction to land Law (1988) 4th Edition London
2. William Howarth Land Law in a Nutshell,3rd ed.London.1994
3. Megarry and Wade The Law of Real Property, 6th ed London, .2000
4. J.G.Riddall Introduction to Land Law 5th ed.London,1988
UNIVERSITY OF ZAMBIA
SCHOOL OF LAW
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Megarry and Wade The Law of Real Property, 6th ed London, .2000
J.G.Riddall Introduction to Land Law 5th ed.London,1988
William Howarth Land Law in a Nutshell,3rd ed.London.1994
Introduction to land Law Ridall JG (1988) 4th Edition London
