Land tenure is the name given, particularly in
common lawCommon law is law developed by judges through decisions of courts and similar tribunals , rather than through legislative statutes or executive action, and to corresponding legal systems that rely on precedential case law....
systems, to the legal regime in which land is owned by an individual, who is said to "hold" the land. The sovereign monarch, known as
The CrownThe Crown is a corporation sole that in certain countries of the Commonwealth of Nations, as well as in any provincial or state sub-divisions thereof, represents the legal embodiment of executive government...
, held land in its own right. All private owners are either its tenants or sub-tenants. The term "tenure" is used to signify the relationship between tenant and lord, not the relationship between tenant and land.
Historically in the system of
feudalismFeudalism is a decentralized sociopolitical structure in which a weak monarchy attempts to control the lands of the realm through reciprocal agreements with regional leaders...
, the lords who received land directly from the Crown were called tenants in chief.
Land tenure is the name given, particularly in
common lawCommon law is law developed by judges through decisions of courts and similar tribunals , rather than through legislative statutes or executive action, and to corresponding legal systems that rely on precedential case law....
systems, to the legal regime in which land is owned by an individual, who is said to "hold" the land. The sovereign monarch, known as
The CrownThe Crown is a corporation sole that in certain countries of the Commonwealth of Nations, as well as in any provincial or state sub-divisions thereof, represents the legal embodiment of executive government...
, held land in its own right. All private owners are either its tenants or sub-tenants. The term "tenure" is used to signify the relationship between tenant and lord, not the relationship between tenant and land.
Historically in the system of
feudalismFeudalism is a decentralized sociopolitical structure in which a weak monarchy attempts to control the lands of the realm through reciprocal agreements with regional leaders...
, 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
subinfeudationSubinfeudation, in English law, is the practice by which tenants, holding land under the king or other superior lord, carved out in their turn by sub-letting or alienating a part of their lands new and distinct tenures....
. 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-serviceKnight-service was the dominant and distinctive tenure of land as a fief associated with a knight under the English feudal system.-Early history:...
, 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
leaseA lease is a contract conferring a right on one person to possess property belonging to another person to the exclusion of the owner landlord, and all others except with the invitation of the tenant. It is a rental agreement between landlord and tenant...
s and
estatesAn estate comprises the houses and outbuildings and supporting farmland and woods that surround the gardens and grounds of a very large property, such as a country house or mansion. It is an "estate" because the profits from its produce and rents are sufficient to support the household in the house...
.
Modes of ownership and tenure
There are 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
North America is the northern continent of the Americas, situated in the Earth's northern hemisphere and in the western hemisphere. It is bordered on the north by the Arctic Ocean, on the east by the North Atlantic Ocean, on the southeast by the Caribbean Sea, and on the west by the North Pacific...
had no formal notion of land ownership. When EuropeEurope is, by convention, one of the world's seven continents. Comprising the westernmost peninsula of Eurasia, Europe is generally divided from Asia to its east by the water divide of the Ural Mountains, the Ural River, the Caspian Sea, the Caucasus Mountains , and the Black Sea to the southeast...
ans first came to North America, they sometimes simply disregarded traditional land tenure and simply seized land; more often, they accommodated traditional land tenure by recognizing it as aboriginal titleAboriginal title is a common law property interest in land. It has been recognised in Canada, Australia, New Zealand, the United States, and increasingly in other common law countries as well, such as Malaysia and Nigeria....
. This theory formed the basis for (often unequal and often abused) treaties with indigenous peoples.
- Feudal
Feudalism is a decentralized sociopolitical structure in which a weak monarchy attempts to control the lands of the realm through reciprocal agreements with regional leaders...
land ownership, a system of mutual obligations under which a royalThe person who heads a monarchy is called a monarch. It was a common form of government in the world during the ancient and medieval times. A Monarchy is a form of government in which supreme power is absolutely or nominally lodged with an individual, who is the head of state, often for life or...
or nobleNobility is a state-privileged status which is generally hereditary, but which may also be personal only. Titles of nobility are usually associated with present or former monarchies. The term originally referred to those who were "known" or "notable" and was applied to the highest social class in...
personage granted a fiefdomUnder the system of medieval European feudalism, a fiefdom, fief, feud, feoff, or fee, often consisted of inheritable lands or revenue-producing property granted by a liege lord, generally to a vassal, in return for a form of allegiance, originally to give him the means to fulfill his military...
— 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 lordLord is a title with various meanings. It can denote a prince or a feudal superior . The title today is mostly used in connection with the peerage of the United Kingdom or its predecessor countries, although some users of the title do not themselves hold peerages, and use it 'by courtesy'...
continued to have an interest. This pattern obtained from the level of high nobility as vassals of a monarchA monarch is the person who heads a monarchy, a form of government in which the country or entity usually ruled or controlled by an individual who usually rules for life or until abdication...
down to lesser nobility whose only vassals were their serfA spin exchange relaxation-free magnetometer is a type of magnetometer developed at Princeton University in the early 2000s. SERF magnetometers measure magnetic fields by using lasers to detect the interaction between alkali metal atoms in a vapor and the magnetic field.The name for the technique...
s.
- Ownership of land by swearing to make productive use of it. In several developing countries as Egypt, Senegal, ... this method is still presently in use. In Senegal, it is mentioned as "mise en valeur du zones du terroir" and in Egypt, it is called Wadaa al-yad.
- Life estate
A life estate is a concept used in common law and statutory law to designate the ownership of land for the duration of a person's life. In legal terms it is an estate in real property that ends at death...
. Under common lawCommon law is law developed by judges through decisions of courts and similar tribunals , rather than through legislative statutes or executive action, and to corresponding legal systems that rely on precedential case law....
, this 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 mortgageA mortgage is the transfer of an interest in property to a lender as a security for a debt - usually a loan of money. While a mortgage in itself is not a debt, it is the lender's security for a debt...
.
- Fee tail
Fee tail or entail is an obsolescent term in common law. It describes an estate of inheritance in real property which cannot be sold, devised by will, or otherwise alienated by the owner, but which passes by operation of law to the owner's heirs upon his death...
. Under common law, this is hereditary, non-transferable ownership of real property. A similar concept, the legitime, exists in civilCivil law is a legal system inspired by Roman law, the primary feature of which is that laws are written into a collection, codified, and not determined, as in common law, by judges. The principle of civil law is to provide all citizens with an accessible and written collection of the laws which...
and Roman lawThe term Roman law denotes the legal system of ancient Rome, and the legal developments which occurred before the seventh century AD — when the Roman–Byzantine state adopted Greek as the official lingua franca. The development of Roman law comprises more than a thousand years of jurisprudence —...
; the legitime limits the extent to which one may disinherit an heir.
- Fee simple
A fee simple is an estate in land. It is the most common way real estate is owned in common law countries, and is ordinarily the most complete ownership interest that can be had in real property short of allodial title, which is often reserved for governments...
. Under common lawCommon law is law developed by judges through decisions of courts and similar tribunals , rather than through legislative statutes or executive action, and to corresponding legal systems that rely on precedential case law....
, this is the most complete ownership interest one can have in real propertyIn the common law, real property refers to one of the two main classes of property, the other being personal property. Real property generally encompasses land, land improvements resulting from human effort including buildings and machinery sited on land, and various property rights over the...
, other than the very rare Allodial titleAllodial title is a concept in some systems of property law. It describes a situation where real property is owned free and clear of any encumbrances, including liens, mortgages and tax obligations...
. The holder can typically freely sell or otherwise transfer that interest or use it to secure a mortgageA mortgage is the transfer of an interest in property to a lender as a security for a debt - usually a loan of money. While a mortgage in itself is not a debt, it is the lender's security for a debt...
. This picture of "complete ownership" is, of course, complicated by the obligation in most places to pay a property taxProperty tax, or millage tax, is an ad valorem tax that an owner is required to pay on the value of the property being taxed. Property tax can be defined as "generally, tax imposed by municipalities upon owners of property within their jurisdiction based on the value of such property."There are...
and by the fact that if the land is mortgaged, there will be a claim on it in the form of a lienIn law, a lien is a form of security interest granted over an item of property to secure the payment of a debt or performance of some other obligation...
. In modern societies, this is the most common form of land ownership.
- Leasehold or rental
Renting is an agreement where a payment is made for the temporary use of a good, service or property owned by another person or company. The owner of the good, service or property may be referred to as the lessor and the party paying to use the property as the lessee or renter...
. 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 KingdomThe United Kingdom of Great Britain and Northern Ireland is a sovereign state located off the northwestern coast of continental Europe. It is an island country, spanning an archipelago including Great Britain, the northeastern part of Ireland, and many small islands...
, and allowing various degrees of freedom in the use of the property.
- Rights to use a commons, which may include such rights as the use of a road or the right to graze one's animals on commonly owned land.
- Sharecropping
Sharecropping is a system of agriculture or agricultural production in which a landowner allows a tenant to use the land in return for a share of the crop produced on the land...
, under which one has use of agricultural land owned by another person in exchange for a share of the resulting crop or livestock.
- Easement
An easement is a non-possessory interest to use real property in possession of another person for a stated purpose. An easement is considered as a property right in itself at common law and is still treated as a type of property in most jurisdictions...
s, which 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.
In addition, there are various forms of collective ownership, which typically take either the form of membership in a
cooperativeA cooperative is defined by the International Co-operative Alliance's Statement on the Co-operative Identity as an autonomous association of persons united voluntarily to meet their common economic, social, and cultural needs and aspirations through a jointly-owned and...
, or shares in a
corporationA corporation is a legal entity separate from the shareholders and employees. In British tradition it is the term designating a body corporate, where it can be either a corporation sole or a corporation aggregate...
, which owns the land (typically by fee simple, but possibly under other arrangements). There are also various hybrids: in many
communist stateIn political science, a Communist state is a state with a form of government characterized by single-party rule of a Communist party and a professed allegiance to a communist ideology as the guiding principle of the state....
s, government ownership of most agricultural land has combined in various ways with tenure for farming collectives.
Land tenure in particular countries
- Land tenure in England
Land tenure in EnglandEven before the Norman Conquest, there was a strong tradition of landholding in Anglo-Saxon law. When William the Conqueror asserted sovereignty over England in 1066, he confiscated the property of the recalcitrant English landowners...
- Scotland - crofting
Crofting is a form of land tenure and small-scale food production unique to the Scottish Highlands and the Islands of Scotland.Within crofting townships, individual crofts are established on the better land, and a large area of poor quality hill ground is shared by all the crofters of the township...
, aoghaireanThe Aoghairean of the Hebrides, Scotland, according to Thomas Pennant, were farm servants who have the charge of cultivating a certain portion of land, and of overseeing the cattle it supports...
and half-footHalf-foot was a kind of land tenure peculiar to northern and western Scotland.The possessor, generally impoverished, or without facilities for working the land, often furnished the land and seed corn, and the tenant cultivated it, the produce being equally divided between them...
Importance of tenure today
Although the doctrine of tenure has little importance today, its influence still lingers in some areas.
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. It has been pointed out by Professor F.H. Lawson in
Introduction to the Laws of Property (1958), 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 propertyPersonal property, roughly speaking, is private property that is moveable, as opposed to real property or real estate. In the common law systems personal property may also be called chattels or personalty. In the civil law systems personal property is often called movable property or movables - any...
). However, the relationship of
bailmentBailment describes a legal relationship in common law where physical possession of personal property is transferred from one person to another person who subsequently holds possession of the property.-General:...
in the case of chattels closely resembles the landlord-tenant relationship that can be created in land.
See also
- Alienated land
Alienated land is that which has been acquired from customary landowners by Government, either for its own use or private development requiring a mortgage or other forms of guarantees. The term refers historically to the appropriation of customary land by European colonial powers. Land was...
- Allodial
- Eminent domain
Eminent domain , compulsory purchase , resumption/compulsory acquisition or expropriation is the inherent power of the state to seize a citizen's private property, expropriate property, or seize a citizen's rights in property with due monetary compensation, but...
- Feudalism
Feudalism is a decentralized sociopolitical structure in which a weak monarchy attempts to control the lands of the realm through reciprocal agreements with regional leaders...
- Fiefdom
Under the system of medieval European feudalism, a fiefdom, fief, feud, feoff, or fee, often consisted of inheritable lands or revenue-producing property granted by a liege lord, generally to a vassal, in return for a form of allegiance, originally to give him the means to fulfill his military...
- Homestead principle
The Homestead principle in law is the concept that one can gain ownership of a natural thing that currently has no owner by using it or building something out of it...
- Landed gentry
Landed gentry is a traditional British social class consisting of "gentlemen" in the original sense; that is, those who owned land in the form of country estates to such an extent that they were not required to actively work, except in an administrative capacity on their own lands...
- Landed nobility
Landed nobility is a category of nobility in various countries over the history, for which landownership was part of their noble privileges. Their character depends on the country.*Landed gentry is the landed nobility in the United Kingdom....
- Landed property
Landed property or landed estates is a real estate term that usually refers to a property that generates income for the owner without the owner having to do the actual work of the estate. In Europe, agrarian landed property typically consisted of a manor, several tenant farms, and some privileged...
- Land reform
Land reforms is an often-controversial alteration in the societal arrangements whereby government administers possession and use of land...
- Land trust
There are two distinct definitions of a land trust: 1) a private, nonprofit organization that, as all or part of its mission, actively works to conserve land by undertaking or assisting in land or conservation easement acquisition, or by its stewardship of such land or easements , and 2) an...
- Manorialism
Manorialism or Seigneurialism or Feudal Society was the organizing principle of rural economy and society widely practiced in medieval western and parts of central Europe...
- Precaria
A precaria is a form of land tenure in which a contract grants the right to use ecclesiastical property for a specific amount of time, for the duration of the grantee's life, offered for services rendered to the church. In feudalism the use of church lands to support warriors contributed to the...
- Quia Emptores
Quia Emptores was a statute passed in 1290 by Edward I of England that prevented tenants from alienating their lands to others by subinfeudation...
- Rights and Resources Initiative
The Rights and Resources Initiative is a non-governmental organization working to advance forest tenure, policy and market reforms, primarily in developing countries....
- Squatting
Squatting is the act of occupying an abandoned or unoccupied space or building, usually residential, that the squatter does not own, rent or otherwise have permission to use. Squatting is significantly more common in urban areas than rural areas, especially when urban decay occurs...
- Title (property)
Title is a legal term for a bundle of rights in a piece of property in which a party may own either a legal interest or an equitable interest The rights in the bundle may be separated and held by different parties. It may also refer to a formal document that serves as evidence of ownership...