Question
1. “In practice, common law title to land has always been based on brute force and little more.”
Discuss, providing support for your discussion from relevant sources of law and academic commentary.
Writing a UK property law essay on common-law title requires more than retelling the Norman Conquest. This model coursework examines whether title to land was founded on brute force or developed through legal rules governing tenure, estates, possession and inheritance. It connects feudal landholding, Quia Emptores 1290 and Asher v Whitlock with the modern framework of freehold, leasehold and the Land Registration Act 2002. Students can use the discussion to structure a critical argument, integrate historical scholarship and distinguish physical control from legally recognised title. It is especially useful for LLB, GDL and conversion-course students researching English land law coursework.
Answer
This essay analyses the development of rules relating to common law title to land. The claim that common title to land developed through use of force and violence requires to be analysed considering historical development of title and estates in land. The history of English land law is linked with evolution of common law and its courts. Undeniably, it developed in a feudalistic system. It comprises of arbitrary rules developed through economic and social necessities of agricultural and militaristic feudal society. These facts shall form background of English land law. It shall be assessed considering scholarship on this area of law. Modern right to title under the Law of Property Act 1925 and Land Registration Act 2002 shall be scrutinized based on its historical development. This pertains concepts of freehold and leasehold estates. It is submitted that while feudalism is based on power relations, it is oversimplification to state that title to land was based on violence. Rather, it evolved gradually through complex feudal relations in a hierarchical society. It is reflected in present day terms and basis of title in estates.
The essay shall begin with tracing roots of land title in English feudal system. It shall then assess the linkage of power and land in English feudal society. The nature of feudal system was based on power relations. However, the land became to be used and abused for practical reasons. The estates – with possessory and proprietary rights – gradually devolved on nobles, knights, and peasants with varying degrees of rights and usages. The essay shall then explore concept of tenures in English land law. It shall analyse it considering development of English common law courts. The linkage between early common law and its present day manifestation in the Land Registration Act 2002 shall be demonstrated. It shall be argued that English common law title to land is not based on brute force in its formative years, and does not do so today. The concentration of title in few hands may suggest such formulation. But it is for other reasons that might be surmised.
“There is nothing,” stated William Blackstone, “which so generally strikes the imagination and engages the affections of mankind, as the right of property.” The origins of common law ownership rights began in 1066. The true grasp of title to land in modern day United Kingdom cannot be understood without understanding the political and social context of land since Norman invasion. It developed with gradual formalisation of feudal tenure system, starting in 1086 through survey of national landownership in the “Domesdays Book.” The context is a feudal society, where legal norms and standards developed slowly over the centuries. The history is characterised by battles and violence over property. The land rights were based on entitlement to property based on loyalty. It gave possessory rights in return for tax, loyalty, and military service. Crown owned the property entitled to by favour of God. The title was linked to these factors and with change of favours with crown, one could lose entitlement to right. Hence, title to land vested with the King and all others were tenants for a term.
In historical context, land and power have been intertwined. JS Mill in 1871 noted that “[i]t is a rule, to which history as yet furnishes few exceptions, that nations are governed by their landed proprietors.” But this distorts the gradual, piecemeal but certain developments at common law which formalised title to land. It is true there had been extreme concentration of ownership in aristocratic class. But within this class, it is questionable whether brute force was how title to land was determined. In fact, “power and land are still tightly bound to one another in Britain.” In fact, common law development is linked with development of land law. In fact, the access to and usage of land through land enclosure was harbinger of transition from feudalism to capitalism. Land accumulation led to capital accumulation. The nexus of power with land ownership is undeniable.
Brute force can be linked with feudal system of UK many centuries back. Feudalism was a system of economic, political, and social right. However, it was an extremely socially stratified society where peasants could not get title to land but could stay on and use land in return for their services to landowners. As noted, before, the king’s title was dervied from God. The lower forms of title consisted of grant of fief to nobles and possessory rights to knights as vassals, and to peasants. Nobles gave money and knights in return for fief/land; whereas, knights provided protection and military service to nobles; and, finally, peasants granted food and services to knights.
Over time, the feudal system was qualified by legal rules. The importance of linkage between rule of law and title to land has philosophical basis. Jeremy Bentham stated that “[p]roperty and law are born and must die together. Before the laws, there was no property: take away the laws, all property ceases.” The earliest indications of rules-based approach to title in English common law can be gleaned from Quia Emptores or “A Statue of our Lord the King.” It stipulated rules for selling and buying of land in 1290.
The land law developed in a hierarchical but structural manner, underpinned by clear set of rules. Land in the feudal system was most important type of wealth, as the economy was agricultural. Land title was based on chain of feudal relations. The relationship can also be categorised as aristocratic “tenants in chief.” It was followed by strata of “mense” held by intermediate tenants. At lowest level, those who occupied property were tenant “in demesne.” The land was held under condition of tenure specific to the nature of title. It was mainly based on service or payment, which could be fixed annual payment. There were some relating to inheritance as well, such as feudal lord having right to own tenant’s land if he was heirless on death; in case of heirship, lord could be entitled to compensation. Similarly, there was also system of succession to tenancies.
This was characterised by rights in land called “estates.” It related to duration or term of tenant’s interest. The modern day concepts of “fee simple” and “fee tail” were developed under early common law system. Fee simple means any heir is entitled to inheritance to succeed to tenancy. Fee tail could be inherited by direct descendants. Transfer of rights in property signify rule-based system. There was no system of written formalities in early common law.
A system of brute force is negation of rules-based dispute resolution systems. Wth violence, there is no middle ground between parties, especially where there is inequality of arms. However, common law of title to land developed with formalisation of judicial resolution system. It led to slow decline of feudalism as the very term “common law” negated group-based or localised customs and privileges. It came to be founded on analogical and logical reasoning, which is not only opposite to use of brute force but also arbitrary, local, and capricious customs and usages, hallmark of fiefdoms and aristocratic hierarchy.
The royal courts were developed to achieve unity and consistency. Clergy, statements, Saxon witan, king’s council, and Norman courts - all - contributed to the declaration of common law. Customs were adopted or rejected by royal courts. This is in opposition to France where local monarchies developed their own customary law, as was the case in other continental countries. King’s Bench, Exchequer, and such centralised courts applied common law offering remedies. The rules were developed governing transfer of title in land, which indicates greater formalisation than anticipated by claims of common law rules being mere brute force. There are many recorded instances of land being transferred by payment of money in instalments, as well. There are also records of assemblies witnessing the transfer of land with instances of standing security against future payment. Over time, these rights and obligations came to common law courts and were dealt with by application of common law.
A key aspect of development of title to land in common law related to ‘tenure’. Tenure meant, as discussed earlier, getting piece of land subject to condition of service or payment. It was subject to evolving body of rules. This explains the overarching importance of laws and rules in management of access to and usage of land and associated land rights. This developed a structural system of various kinds of tenures with remedies. As noted, before, common law developed various institutions even during the height of feudalism. This included common law courts.
The derivative possessory title to land, under system of tenures, was important innovation of feudalism to accomodate other social classes. It vested people with proprietory and possessory rights in people deriving from the rights of the king. The rights developed related to use, cultivation, holding, and exclusive possession. It developed system of lords and tenant. It is obvious from modern day terminology of landlord and tenant. The land title was based on dependent and derivative tenure. But its universality throughout UK gave it force of law. By 13th century, term fee meant carrying inheritance and heritability in land.
Tenant held in fee (tenet in feodo) with rights to inheritance. One obtained personal right to the land with proprietory rights of the descendants. Given development of common law courts, one “cannot ... treat feudal law as distinct from the ordinary law of the land, a law to be administered by special courts, a law which regulates some but not all of the proprietary rights that men have in land.” Over time, personal and real rights developed along with tenure giving lord rights againt tenant and vice versa. A tenant in demense, which was lowest in the hierarchy of feudal scale, had “indefinite right of using” land as he pleased, for instance. However, land could always be burdened with notice or legal sanction by military service or rent. In fact, king would seize the land.
The case of Asher and Wife v Whitlock is a case study in formalisation of feudal law system of title to land into modern times. Court interpreted and applied body of rules related to derivative possessory and heritable rights in the estate and title to land. Williamson who was a squattor on unregistered land of a feudal Lord built a house for his family and daughter. His wife was widowed. He left the land on which cottage was made to his widow. It was to pass to daughter on her remarriage but daughter did not enter possession. She died. Question was whether daughter’s descendant had right to possession or wife’s new husband. Court held that daughter’s descendant had the right. Lord could have claimed possession against adverse possession within 20 years. Further, earlier title was to take priority over later title. The case invoked centuries old relations, case laws, and feudal relations under which fiefs and lower cadres obtained right to possession to land.
In modern times, common law rights crystallised into systematic rules, procedures, and substantive rights. It is a slow history of triumph of laws and rule of law over brute force. Use and grant of land was associated with monetary payment system. This included payment of taxes, tents, and feudal duties. Personal services was also a medium of exchange for leasing of land from social aristocrats and superiors, as noted before. It is important to reiterate the tenure system because it applies in essence to this day. Like feudalism, the monarch remains “the only true owner of land in Britain today.” In Land Registration Act 2002’s explanatory notes, it is noted that “[t]he Crown is the only absolute owner of land.” Like estates system, “all others hold an estate in land. Estaets, which derive from feudal terms of tenure ... were reduced ... to two, an estate in fee simple absolute in possession” called freehold and “an estate for a term of years absolute generally known as ‘leasehold’.” This shows a continuity of the structural, hierarchical rules of feudal system of land to the present day. It explicates that centralisation of law in crown allowed development of title to land rules. The absence of such centralisation could have justified an argument that common law was based on brute force. This would mean absence of law.
English land law has been charactertised by concentration of ownership through legal means. It reduced access and use of land for common use for commoners. Common law title to land is characterised by exclusivity than mere violence. It led to usurpation of land in public domain towards ownership in hand of wealthy private owners during some periods of English history. But the process has been gradually reversing towards public ownership since late 19th century. Tenures Abolition Act 1660 was enacted for redistribution of landownership. This also negates primacy of brute force over legalistic redistribution of land to monasteries and concentration of ownership of public land in private hands. English law of land developed against common rights over cultivable and non-cultivable (or ‘wasteland’ not in the sense that land of no use). Goldstein noted
“by the nineteenth century, a tiny minority of wealthy owners controlled an overwhelming majority of arable land, which they dedicated to improved husbandry, or (as was increasingly the case by the eighteenth century) reserved as private hunting grounds and pastoral idylls. In either case, the removal of commoners was the sine qua non of the improved landscape.”
How did private owners controlled the law and grants to enrich themselves is beyond the scope of this essay. But it has not been through brute force or violent conquest as shown by scholarship.
It has been analysed extensively that common law title to land was not based on brute force. Since the inception of feudal law of land beginning with Norman conquest, the trajectory of land law was towards formalization of rules of tenure, enclosure, tenement, succession, and inheritance. It signified development of personal and proprietary rights. The very formula of title to all land vested in Crown continues to this day. The concepts of freehold and leasehold estates are rooted in old common law. The history of development of rules is compatible with how common law courts developed. It was triumph of centralised common law rules over customs and local usages. It is another matter that ownership has continued to be concentrated in aristocratic owners and now into wealthy private owners with no hereditary rights to Lordship in House of Lords.
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