The freehold estates

<op>1.18 The rich taxonomy of estates in medieval land law provided for a number of freehold estates which together facilitated the fragmentation of ownership and conferred enormous flexibility in the management of landed wealth. The substitution of abstract estates in land as the object of proprietary rights enabled grantors to preside over almost endless disaggregations of title through the conferment of successive freehold estates (eg where X granted Greenacre to A for life, then to B in tail, and finally to C in fee simple). Each successive interest could enjoy an immediate jural reality as of the date of the original grant; and each was freely commerciable (ie mortgageable) long before the estate in question actually fell into possession (4.4). The freehold estates, in their most basic form, comprised the following:

<sp>— The estate in fee simple denoted (and still denotes) tenure of potentially unlimited duration, the amplest estate which a tenant can have in or over land. The fee simple confers ‘the widest powers of enjoyment in respect of all the advantages to be derived from the land itself and from anything found on it’ (Wik Peoples v Queensland (1996) per Gummow J), and constitutes effectively the ‘local equivalent of full ownership’ (ibid, per Kirby J). The tenant of an unencumbered estate in fee simple has, without question, the largest possible ‘bundle of rights’ exercisable with respect to land (Minister of State for the Army v Dalziel (1944) per Rich J).

<case>Walsingham’s Case (1573) ‘[H]e who has a fee-simple in land has a time in the land without end, or the land for time without end.’

The fee simple was (and still is) capable, more or less indefinitely, of transfer inter vivos or of devolution on death. The owners of the fee simple estate may come and go but the estate remains, since it is of potentially infinite duration. Each new owner merely steps into the shoes of his or her predecessor – the modern effect of the Statute Quia Emptores 1290 (1.22).

<sp>— The fee tail (or entailed estate) represented an interest in land which ...

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<case>Walsingham’s Case (1573) ‘[H]e who has a fee-simple in land has a time in the land without end, or the land for time without end.’

<sp>— The fee tail (or entailed estate) represented an interest in land which endured so long as the original grantee or any of his lineal descendants remained alive, thus providing an ideal means of retaining dynastic land within the family.

<sp>— The life interest was (and still is) coextensive and coterminous with the life of its original grantee. If conveyed to a stranger, it ranks in his hands as an interest pur autre vie, still lasting only for the lifetime of the original grantee – not necessarily a good investment for a canny purchaser!

<ha>The modern impact of the doctrine of estates

<op>1.19 The old common law estates were preserved, with modifications and additions, in the property legislation of 1925. Indeed the scheme of title registration contained in the Land Registration Act 1925 is actually premised on the intellectual construct of the estate (see LRA 1925, s 2(1); 1.22). Even by 1926, however, it had become clear that the fee simple estate was the primary estate in English law and that the grant of the other former freehold estates (necessarily in equitable form; 2.25) had become – for reasons both social and fiscal – really rather rare. Therefore, in the absence of words of limitation which expressly cut back the scope of a grant, all conveyances were, from 1926 onwards, presumed to invest the grantee with a fee simple estate (LPA 1925, s 60(1)). Being relegated to equitable status only, the old qualified freehold estates (ie other than the fee simple) were capable of creation only under some statutorily regulated trust or settlement (6.43–6.44). As of 1 January 1997 a life interest can be conferred only under a ‘trust of land’ (TLATA 1996, s 2(1); 6.42); and any purported grant of an entailed interest takes effect, not as a grant in tail, but as a declaration that the land is held in trust for the grantee absolutely (ie in fee simple in equity) (see TLATA 1996, Sch 1, para 5(1); 6.37).

<ha>The leasehold estate

<op>1.20 The modern submergence of the lesser freehold estates has, however, been accompanied by the increasing prominence of the leasehold estate. The 1925 legislation confirms, as had already been apparent for some centuries, that the fee simple has been joined as an estate in land by the ‘term of years’ or lease (LPA 1925, s 1(1)). The leasehold estate comprises, by definition, a slice of time of fixed maximum duration (4.10–4.11), and can be granted either out of the allodium of the crown (by way of crown lease), or by the owner of a fee simple estate, or indeed by a leaseholder by way of sublease (for any period shorter than the duration of his own leasehold estate (4.17)).

<ha>The constant intermediacy of estate ownership

<op>1.21 The 1925 legislation has thus faithfully maintained the ancient theory that land ownership and use are mediated, not by the attribution to individuals of any direct ownership or dominium over the land itself, but rather by the distribution of intangible jural entitlements which are interposed between persons and land (1.16). The perspective embraced by the statutory scheme is, essentially, of property as an abstract right rather than as a physical resource, precisely on the footing that the only property one can have is in a right.