tenure (in law)

The Columbia Encyclopedia, 6th ed.

tenure (in law)

tenure, in law, manner in which property in land is held. The nature of tenure has long been of great importance, both in law and in the broader economic and political context. Tenure has varied greatly from feudal to modern times; although the patterns of transition have been many, the essential nature of the problem and its legal complexities can be seen in the development of tenure in English law.

Feudal Tenure and Its Evolution

The term tenure may refer to landholding of any type; it usually implies, however, that the landholder does not have absolute possession but derives the right from some other person. This meaning of the word originates from its sense in feudalism; so used, tenure is the antithesis of alod, absolute ownership without obligation to others.

The modern Anglo-American law of land developed out of the institutions of English feudalism established after the Norman Conquest (1066). Theoretically, the monarch was the ultimate owner of all the land; in practice, however, certain land was held according to earlier custom. Those who were feudal tenants always held land of another (the lord or landlord) to whom obligations were owed. The type of tenure essentially established the tenant's social status; the term estate (deriving from status) thus came to be applied to the various types of tenure.

The early tenures were classified basically as free or unfree. Unfree, or servile, tenure was generally that of the villein, who performed menial services and was a tenant at the will of the lord (see manorial system). Tenancy by custom eventually became a permanent right in the property when such tenures were recorded in the copy rolls (parchment records) of the manorial court, and the villein became a copyhold tenant.

The various types of free tenure are sometimes described as means for ensuring performance of all the services required by the state. Military needs were guaranteed by knight tenure (see knight2). Spiritual welfare was provided for by frankalmoign tenure, i.e., granting lands in charity to religious bodies. Serjeanty tenure furnished the king with needed officials and with personal services. Finally, the vital cultivation of the land was accomplished by socage tenure wherever villeinage was not in use.

Socage tenure is especially important because it is the basis of all modern estates, while the other classes of tenure have all disappeared. The socage tenant, or socager, held his land in return for performing duties to the lord. These incidents of socage were essentially like the aids and scutage exacted of knights; like those, they were also eventually commutated into fixed money payments.

In the development of the law of land perhaps the most important incident was the fine for alienation. This was the payment of a sum to the lord for permission to alien (or alienate) the estate, i.e., to grant it (sell or make a gift of it) to another. The right of free alienation, a cornerstone of modern property law, was partly guaranteed in 1290 by the statute Quia emptores, which abolished the fine. However, freedom to dispose of land by will on the tenant's death was not established until passage of the Statute of Wills (1540). In inheritance of land primogeniture was usually observed; different local customs, notably borough-English and gavelkind, were, however, also observed. If the tenant had no heir the estate went back to the lord; such reversion was called escheat.

Socage tenure eventually developed many varieties, commonly called fees. (The word fee stems directly from fief and ultimately from feud, both terms of feudal law.) Fees are divided into freehold and nonfreehold. The freehold fees are fee simple, fee tail, and life fee.

A fee simple is essentially absolute ownership of land; it includes, therefore, complete freedom of alienation and (since 1540) of devising (bestowing by will). An estate in fee tail was one bestowed as a gift to the donee and to his issue (children) or a class (male or female) of his issue. Read literally, the terms of the grant prevented alienation of the land out of the prescribed line of succession. A life fee or a life estate was one that would endure for the lifetime of the grantee and after his death would go to some other person. The life tenant had no power of alienation.

Nonfreehold estates include estates for years, periodic estates, estates at will, and estates at sufferance. An estate for years is one that will expire at the end of a fixed period. A periodic estate is one for a set term, which is automatically renewed if neither party takes steps to terminate it. Most modern leases of real property and buildings establish periodic estates. A tenancy at will is one that may be terminated by the tenant or the landlord; it is generally interpreted by a court as being implied from the facts. An estate at sufferance arises when a tenant continues to occupy the land after the right to occupancy has expired; the tenancy subsists only so long as the landlord does not object.

The struggle over whether land should be freely alienable dominated English land law; it was resolved by the 18th cent. when the alienation of land could no longer be restricted beyond a limited period. The ultimate effect of this tendency was to assimilate the law of real property in most important respects to that governing personal property. At the time of the American colonization this development to free alienation was already well advanced; hence, few of the typically feudal features of land law were adopted in America. Today some of the states provide that landownership shall be in free and common socage and others that it shall be alodial. In practice there is little difference.

Land Tenure as a Modern Problem

In modern times land tenure has been a vexing economic and political issue throughout the world; it has given impetus to nationalism and to revolution, especially in largely agrarian Asia, Africa, and Latin America. In the 19th and 20th cent. there has been wide demand for small farmer ownership and for secure tenure for tenants.

The end of feudalism and of serfdom in Europe and elsewhere left small holders in an insecure position. After the French Revolution, security of tenure was provided for French cultivators, but elsewhere in Europe, where servile obligations were generally abolished by 1860, most of the land was possessed by nobles and other wealthy classes; tenant cultivators were subject to high rents, easy ejection, and no allowance for improvements. Thus there arose the demand for peasant proprietorship through the purchase or appropriation of land by the government, which would then resell small parcels to the peasantry on easy terms.

Also, agitation began for legislation favorable to tenants regarding rent, sale, lease, land improvement, and absentee landlordism. Since the late 19th cent. such programs have been established in most countries of Europe, Ireland (see Irish Land Question) and the Scandinavian countries being among the first. Most recently in Europe, especially where the long establishment of secure tenure has led to minute subdivision, government activity has tended to favor some consolidation of holdings, as in the Netherlands.

In the 19th cent. the spacious lands of Australia, Canada, and the United States enabled the governments of those countries to grant substantial holdings cheaply to farmers, who thus became owners rather than tenants. However, problems did develop, notably in the struggle of the sheep or cattle ranchers, who desired secure tenure for the vast lands they required, against the small farmers, who in turn wanted the right to settle and own parts of these tracts.

These difficulties, particularly prominent in Australia, were resolved in the several nations by the early 20th cent., generally in favor of the small farmers. Legislation was also passed in the 20th cent. to provide secure tenure and easy farm purchase for the body of tenants who had by this time emerged. The fundamental purchase enactment in the United States was the Bankhead-Jones Farm Tenant Act (1937). In Latin America, however, the tenure problem remains widespread, and in many countries a few owners still hold most of the land, while the majority of the cultivators are squatters.

Tenure in Transition: Africa and Asia

Characteristically, under customary tenures the rights of peasant transfer remain limited, obligations for the payment of rent are often imposed upon the cultivating community as a whole, and debts are hereditary from generation to generation. Such conditions still prevail in much of Africa and Asia.

In the Middle East, tenure was long dominated by customary and feudal characteristics and also by religious considerations. Under Muslim rule the state theoretically owned all land, and rent and other tenure conditions were different for Muslims and non-Muslims. A wide variety of tenures grew up, including free usage of land for religious purposes and unrestricted ownership. These have had counterparts in Europe under customary tenures. Large-scale reform and redistribution of land were begun in Egypt by the laws of 1952, and Turkey passed reforms in 1945, but in much of the region customary and semifeudal land tenures prevail.

British reforms in India also illustrate some of the complex problems of replacing customary tenures with a contractual system. In contrast to native systems, the British introduced easy transfer of agricultural holdings and allowed foreclosure of property for debt. Consequently the commercially knowledgeable class, the moneylenders, were able to gain many holdings because the poor and inexperienced peasantry contracted unrepayable debts. Where permanently low rents were established in India, landholders sublet at outrageous prices when land values rose. Similar problems have arisen elsewhere in the transformation from customary to contractual tenures.

In those Asian countries where American influence became strong, tenure reform has usually taken place, as in Japan (1946) and Korea (1948). There and elsewhere, experience has shown that without accompanying reforms of agricultural credit, education, and taxation, enabling peasant proprietors to discharge contractual obligations, tenure reforms are only partly successful. The Communist government of the former Soviet Union long vacillated, for economic and political reasons, between collectivization of land (see collective farm) and allowing a substantial number of private holdings. The same situation has existed under other Communist governments, including that of China.

Bibliography

See F. Pollock, The Land Laws (3d ed. 1896); W. S. Holdsworth, An Historical Introduction to the Land Law (1927); C. J. Moynihan, Introduction to the Law of Real Property (1962).

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