Property Transactions in English Law: General Principles

Abstract

Ownership of land: historical introduction The terminology of English land law, and some of the concepts found in this area of law, are notoriously complicated. Much of this complexity can only be explained by reference to history. A detailed examination of the history of English land law is outside the scope of this project, but a few brief remarks may be appropriate. The first point to note is that in English law it is technically incorrect to refer to any individual other than the King or Queen as the “owner” of land. As a direct consequence of the universal introduction (in 1066, following the Norman Conquest) of the so-called “feudal system” of land-holding, the King or Queen is, in theory, owner of all land; everyone else is merely a “tenant” in the feudal sense – one who holds land of the Crown in return for services (note that this use of the word “tenant” is distinct from its modern meaning – see section 2 below). Historically, there were a great many different types of feudal tenure, conventionally classified according to the type of service the tenant might be required to perform. The practical aspects of feudal tenure (including the tenant's obligation to provide services) had mostly disappeared by the 19th century, and the last trace of the distinction between the different types of tenure was abolished in 1922 (Law of Property Act 1922, s.128, Sch.12, para.1), but it remains true, as a matter of legal theory, that the most that a subject can own is an “estate” in land – an interest that is less extensive than the absolute ownership of the Crown. The only circumstances in which this has any practical consequences in the modern law are when an individual dies leaving no heirs who can inherit the land and having not made a will, and when an individual or company has become insolvent and the trustee in bankruptcy or company liquidator disclaims the estate: in such cases the land will “escheat” (i.e. revert back) to the Crown. The second historical point relates to the terminology used to describe estates and other interests in land.