Tenure and Customary Rights
| Author | Christopher Jessel |
| Pages | 125-136 |
Chapter 11
Tenure and Customary Rights
11.1 PRELIMINARY
Positive obligations could formerly be imposed on freehold and copyhold land through tenure and custom. That is no longer possible but a few ancient obligations survive and the underlying principles remain relevant to the way some modern rights work. Positive covenants can be enforced between a landlord and lessee through tenure because there is privity of estate: that is the landlord has a superior legal estate in the land and the tenant a lesser legal estate in the same land. There can be any number of leasehold estates in any given piece of land but the general rule is that there can be only one freehold.
That is the modern position but in the past there could be more than one freehold in the same parcel. There could only be one fee simple absolute
Commission, Updating the Land Registration Act 2002. A Consultation Paper (Law Com 227) (2016) at para 3.5 citing Land Registration for the Twenty-First Century. A Consultative Document (Law Com 254) (1998) at para 10.23. See also para 9.4.
126 Positive Covenants and Freehold Land
In the centuries after 1290 most traces of mesne fees have disappeared. The 1925 reforms converted some limited freeholds into fees simple absolute and others into equitable interests on 1 January 1926 and on the same date the Law of Property Act 1922 (LPA 1922) enfranchised any remaining copyholds. A few obligations of ancient origin still survive and may impose a duty on a landowner to do works or pay for them to be done by others.
11.2 POSITIVE OBLIGATIONS BY TENURE
Modern concepts of ownership should not be applied to early medieval centuries but before our present system of landholding developed after 1066, the Old English law recognised certain burdens on the person we would regard as the owner of land. In the seventh century various lands were held under a system known as folkland whereby the holder was bound to render to his superior, normally the king of one of the little realms into which England was then divided, a return in honey, cheese or hens and for that purpose was bound to keep the bees or cows or chickens which produced them.
After the Norman Conquest it became established that all land was held by tenure, ultimately from the king but mediately through a hierarchy of mesne lords. The legal theory (however historically incorrect) was that the king had granted or infeudated lands. The royal demesne was retained by the king as what we would call the Crown Estate, whose revenues were used to pay for the government of the country. Other estates were held by tenants in chief, notably earls and barons who themselves granted or subinfeudated parts of their lands to lesser holders. Thus a baron might grant a manor to a knight. The knight, as lord of the manor, might in turn either grant land to a free tenant or permit a serf or bondsman to occupy land. There were therefore three classes of subject landholder: those holding by honourable services from the king or a great lord, those holding as free men from a lesser lord and those holding as bondsmen by unfree right.
There were various honourable tenures, most of which involved personal duties which bound the land. The most important was knight service which obliged the holder to serve in the king’s army for 40 days a year. The duty itself was owed to the king even if the tenure was held from a mesne lord.
(Cambridge University Press, 2nd edn, 1898) at 271.
castle guard, the duty to garrison a fortress. Another honourable tenure was sergeanty which involved various services. Grand sergeanty was held direct from the king and still survives, in what is now regarded as a privilege rather than a duty, to play a part in the coronation service, such as providing a basin or a pair of gloves. There was also petit sergeanty which Coke says could only be granted by the king
As time passed knight service ceased to involve military activity. The land might become held in demesne by a monastery or a widow or for a child or might be divided up. The king preferred to employ professional soldiers instead of hereditary landholders and many landholders themselves preferred to administer their estates and not go to war. The duty to serve in the army became commuted for a money payment called scutage. Other incidents also became financial, involving payments which were due on the death of a holder, on the inheritance of an heir, on a young heir coming of age or when the lord’s eldest son was knighted or his eldest daughter married. These obligations were enforced by distraint, whereby the representative of the lord could go on to the land and seize chattels to make good any debt. In the seventeenth century James I and Charles I exploited these incidents to raise money without having to ask Parliament for taxes and they were abolished by an Act of the Long Parliament in 1646, re-enacted in the Tenures Abolition Act 1660.
Most ordinary freeholders who were not tenants in chief or tenants by knight service held their land by socage tenure either from the Crown or...
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