Doctrine of tenure

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The doctrine of tenure is division of land based on space. The doctrine's legal effect is:

  • The crown is the owner of all the land. No one has absolute ownership.
  • Rather, landowners hold the land 'of' the Crown as tenants (therefore tenure). They may then alienate their land further, creating subtenants (subinfuedation).
  • The relationship between a lord and his tenant is one of mutual duties. In return for tenure, a tenant provides the lord with services and a right to incidents.
  • The doctrine of tenure does not strictly apply in Australia, but some parts remain:
    • The concept of the Crown owning all the land and freeholders not having absolute ownership remains.
    • The concept of mutual duties and obligations (services and incidents) does not apply.

This article is a topic within the subject Property, Equity and Trusts 1.

Contents

Required Reading

Edgeworth et all, Sackville and Neave's Property Law Cases and Materials, 8th edition, Lexis Nexis, 2008, pp. 196-199 [3.3]-[3.6].

Core elements

The doctrine of tenure is division of land based on space. According to the doctrine, all of the land ultimately belongs to the Crown, who gives it (via 'grants') to people.

  • This means that no one has absolute ownership (no 'allodial' land).
  • The people are said to hold the land 'of' the Crown. They are 'tenants' of the crown, therefore, they are granted 'tenure'.
  • The doctrine creates the system of lord and tenant - the lord alienating land to a tenant (who can then alienate the land to someone else, creating a new lord and tenant relationship).

There is a mutual exchange or duties and obligations between the lord and tenant, which are the other core elements of the doctrine of tenure:

  • Services - the tenant has to provide a variety of services for the lord in return for his tenure. In return, the lord provides the land, a court (manorial courts) and protection.
  • Incidents - the lord also had rights to incidents -
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Alienation of land under the doctrine of tenure

Feudal land could be alienated (transferred/sold) in two ways:

  1. Subinfeudation:
    • This is where a tenant would alienate a part of his land to a subtenant, ie, creating a new lord and tenant relationship between himself and the new tenant.
    • Visualise this as a vertical transaction (another link in the chain).
    • This was the most popular means.
    • The subtenant did not owe services to his 'lord's lord' (ie, the first tenant's lord) - the relationship between lord and tenant can be seen as similar to privity of contract).
    • The services owed by the first tenant to his lord remain unchanged.
  2. Substitution
    • This is where a tenant would alienate all or a part of his land to another tenant but without becoming his lord - the new tenant is not a sub-tenant of the first tenant, but still a tenant of the original lord.
    • Visualise this as a horizontal transaction (no new link in the chain, rather the two tenants are on equal footing rather than in hierarchy.
    • Less popular then subinfeudation, because it required a fresh oath of homage to the Lord and the Lord's consent.
    • By substituting, the first tenant removed all rights or obligations arising from that part of the land between him and the Lord. They passed to the second tenant (as in, the second tenant is substituted in). Note: obviously, the first tenant might still owe services to the lord because he still holds some land of him.

Roots of the doctrine

[1] The doctrine originated in the Norman conquest, when William the Conqueror made the Crown the absolute owner of all land.

  • His supporters were made ‘tenants in chief’ pursuant to a ‘grant’.
  • The old landlords who did not rebel were entitled to keep their land.
  • To deal with this, William created the legal fiction of the Crown having ‘granted’ this land to the landlords.
  • Land ownership had a pyramidal structure with complex ties between Kings and tenants in chief.[2]
  • The King was at the tip, and sub-tenants were at the bottom. In the middle were tenants who made grants.
  • These tenants who made grants became Lords, for they possessed and held their land. The sub-tenants merely had a right to occupation.
  • There was fragmentation in a spatial dimension (ie There were overlapping sets of rights over a particular area of land).
  • This allowed more than 1 person to have an interest in the same land.

The history of the doctrine is helpful in explaining two things:

  1. Why the modern absolute definition of ‘ownership’ simply did not fit the feudal system of land ownership.
    • No one person had absolute title. A freehold was not really ownership. Only the Crown had what came close to absolute rights.
  2. Why the doctrine of tenure allows overlapping rights over one piece of land.
    • This was because of the subfuedation. The process eventually became too cumbersome, and a statute was created to ameliorate the difficulties that arose.[3] It had two important effects:
      1. It permitted every free man to alienate his interest in the whole or part of his land without his lord’s consent;
      2. It prevented further subinfeudation to occur (Substitution still remained).
        • If A held land as a tenant-in-chief (a landlord) from the King, and gave land to B, B would become the tenant-in-chief for that parcel. Earlier, A remained tenant-in-chief, while B was in an awkward quasi-tenured position.

Modern application & introduction to Australia

[4] Obviously, the Statute of Quia Emptores shrunk the feudal pyramid. The statute remains law in Australia, although in NSW it exists in a simplified form.[5]

The doctrine of tenure itself has does not exist in Australian law. However, its influence still remains in three areas:

  1. No person can ‘own’ land, since it is all held from (‘of’) the Crown.
    • Thus, in Australia, all land is ‘held’ by the Crown. All land titles originate in Crown grants.[6]
  2. The modern landlord-tenant relationship bears some resemblance to the early tenurial relationship.
  3. The traditional doctrine of tenure operated in Australia until Mabo to obstruct recognition of native title.
    • However, it can be legitimately argued that this was a misapplication of the doctrine. The concomitant features of tenure – services and incidents – never existed in Australia as they did in England.

End

This is the end of this topic. Click here to go back to the main subject page for Property, Equity and Trusts 1.

References

Property Textbook refers to Edgeworth et all, Sackville and Neave's Property Law Cases and Materials, 8th edition, Lexis Nexis, 2008.

Equity Textbook refers to Evans, Equity and Trusts, 3rd edition, Lexis Nexis, 2012.

  1. Property Textbook, pp. 196-8 [3.3]
  2. The relationship took the form of ‘services’ and ‘incidents’. Services were obligations owed by the tenant to the landlord. Incidents were rights conferred upon the landlord over the tenant’s land that arose in certain circumstances.
  3. Statute of Quia Emptores 1290
  4. Property Textbook, p. 198 [3.4]
  5. Imperial Acts Application Act 1969 (NSW)
  6. Mabo v Queensland (No 2) (1992) 175 CLR 1, 80
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