The Historical Development of Land Law Flashcards
What is The Feudal System?
- In Feudal systems the land was held absolutely by the crown. Landholders held the land under the crown by tenure.
- Modern Land Law is derived from the concepts of land set out in this feudal system.
- The various concepts of land law have recently been reformed and/or codified by the Land and Conveyancing Law Reform Act 2009 but the concept of tenure and estates still survives.
TFS: what does s9(2) of the Land and Conveyancing Law Reform Act 2009 set out?
that “in so far as it survives, feudal tenure is abolished”.
S9(3) of the Land and Conveyancing LRA
- sets out that this does not affect the overall concept of an “estate” in respect of land.
- The reason for this is that the different kinds of estates that have developed in Ireland are derived from the feudal system, albeit have evolved so that they are no longer tied to the operation of feudalism.
-Further, section 9(3) allows for the continuance of certain types of estates known as ‘fee farm grants. Some of these were made in derogation to the Statute Quia Emptores 1290.
TFS: What is a fee farm?
fee simple estate subject to a rent (this will make more sense when we study fees simple; but fees simple are the most common kind of land ownership in Ireland; if someone mentions ‘owning land’ it is likely that they mean they hold a fee simple in the land.)
TFS: what is the common view of feudalism?
- The common view is that Feudalism was introduced into England by the Normans after the Battle of Hastings in 1066 and later into Ireland in the late 1100s.
- Feudalism was a socio-legal system whereby different categories of people emerged.
- The plantations in Ireland also influenced how feudalism functioned in Ireland.
- The Crown would deem that the land had been forfeited due to treason, escheat or special statutes.
- The Crown would then reallocate the land to new tenants.
TFS: meaning of Landlords and tenants
The feudal system refers to landlords and tenants, but these do not have the same meaning as they do in modern land law. There was no possibility of complete ‘ownership’ under the feudal system if you were not the king, therefore everyone held land as a tenant regardless of the specific interest they had.
- “Upon conquering a realm, the king considered himself to be entitled to all the lands within it…. Of course, from a practical perspective, there was no way in which he could control and administer all of these lands himself.
- Instead, he would use them to reward loyalty, ensure continued loyalty and raise income. This was done by subdividing the realm into parcels of land, some of which the king retained, transferring rights in relation to the rest to his most loyal supporters (the barons and sometimes bishops) who became known as tenants-in-chief.
- These tenants-in-chief held the land as the vassals, or feudal tenants, of the king, who was their feudal lord.” (De Londras)
- “The feudal system was more than a system of land tenure; it was a system of government designed to centralise the administration of the country under the power of the King.” (Wylie 2020).
- It took much longer for the feudal system to take hold in Ireland due to the difficulties of the English Crown in effectively conquering Ireland and the ongoing decentralised approach to law and regulation under the Brehon Law regime
Why did it take longer for TFS to take hold in Ireland?
- It took longer for the feudal system to take hold in Ireland due to indigenous systems of dealing with land under Brehon Law and resistance against Anglo-Norman control.
What did the granting of land become in Ireland?
- The kingdom of Leinster was granted to Richard de Clare (Strongbow) in 1171-72 by Henry II. In return Strongbow had to provide 100 knights’ fees as tenurial service.
- The granting of land in Ireland became a method to conquer parts of Ireland.
- The king would grant land on the condition that it would be conquered by the recipient.
- Military tenure thus became a typical way of allocating land in Ireland under the feudal system. Those who were awarded land were usually not Irish and needed to constantly fight to retain the land.
- In this the King was the only absolute owner with “radical title” (title that the crown has). This constituted ownership of the sovereignty over the land.
- The income from the land always moved upwards towards the king.
TFS: how did you obtain rights?
- In order to obtain rights over the land, certain services would have to be provided to the relevant lord (e.g., knight service, provide knights or money for knights) (tenurial services).
- In addition, there were general conditions applied to the holding of different kinds of tenure, called incidents.
TFS: Did the tenants in chief have obligations?
- Tenants in chief had obligations to the overlord and in turn entitlements over the land, including the right to subdivide and transfer the land themselves.
- The lands were transferred to the supporters of the tenants in chief who in turn had obligations to the tenant in chief and certain entitlements.
- These parties were known as mesne lords (or tenants in mesne) and these mesne lords similarly could divide and transfer land to tenants in demesne (tenants in demesne held most of the land in practice).
TFS: what is seigniory?
- Seigniory is the concept that there can be no land without a lord and that when the lord transferred the land to another holder, he kept his lordship. “The retention of lordship, and its service through compliance with tenurial obligations…made up seigniory”. (DL)
What was de Londras summary of the feudal system?
“The king had sovereign ownership of all the land. He divided the land among his loyal supporters, who were known as tenants-in-chief. They in turn divided it among their supporters, known as tenants in mesne, who in turn divided it among others, known as tenants in demesne. The tenants in demesne held most of the land, although they themselves had tenants (free and unfree) who worked most of the land. The feudal pyramid comprised a series of feudal lord-feudal tenant relationships in which the feudal tenants received landholding rights and protections and the feudal lords received payments of some kind. This continued throughout the different levels of the pyramid, with wealth constantly moving upwards towards the king.”
What is a manor?
base unit of land in a tenurial system- encompassed a system of rules and obligations/ community which developed around the lord/tenant’s system.
What is alienation?
technical term for the transfer of rights over land
What is Subinfuedation?
- transfer of rights to a subordinate e.g., tenant in chief transferring rights to hold land to a tenant in mesne.
- The process of granting land in return for services.
What is substitution?
the surrender of rights of the tenant to hold land to the lord who would then transfer the land to another
What is Mortmain?
- derives from amortisement (mort= dead, main=hand) = transfer of rights into dead hands (someone who cannot die!!!!)
- Actually, this meant the transfer of rights to hold property to a corporation with legal personality, usually the Church or a bishop position.
- The king did not like mortmain as it meant that such a body could hold the property potentially forever, giving that body a lot of power.
- Mortmain was therefore abolished (except where the king allowed) by the Statute of Mortmain 1279. The Mortmain Acts were repealed in Ireland by the Mortmain (Repeal of Enactments) Act 1954.
What was transfer of land done?
- All the means of transfer of land were done by a “feoffment with livery of seisin” which was a ceremony usually conducted in view of the land. “The words of transfer would be said (or sometimes read from a written charter, especially if the transfer had some particular political significance) and then the transferor (known as the feoffer) would hand something representing the gift to the transferee (known as the feofee).” (De Londras)
What is Free tenure?
Freemen who had certain entitlements from their lord- e.g., peaceful possession of the land for which they paid services and incidents to the lord. Services consisted of ongoing obligations connected to the tenure. Incidents were obligations imposed by law. The kind of incident owed was dependent on the kind of tenure held.
What is unfree tenure?
Unfree tenant bound to the manor- no certainty and owed services which were dependent on the whim of the lord
Free tenure: What is military tenure?
- Knight service/ tenure in chivalry
- Under this kind of tenure, it was agreed that the tenant would supply a number of knights or alternatively pay a contribution to the lord’s army representative of the number of knights that should be sent to the lord (scutage/ shield money)
