Tenure

Tenure is the legal regime under which people “own” land in England and gives rise to estates. While it still exists in form, its substance has disappeared through evolution as opposed to abolition.

In the Australian case Mabo v Queensland the court rejected the argument that the introduction of tenure acquired absolute beneficial ownership of Australia for the crown. “Occupancy is the thing by which title was in fact originally gained” and therefore all Australia was not ‘Terra Nullis’ and indigenous Australians held property rights before Britain acquired sovereignty

Estates

If you occupy or buy land, you as a person own not the land but an estate in the land. An estate is a right to possess a space on the earth for a period of time. It can be measured in 4 dimensions, 2 horizontal, 1 vertical and 1 time.

Didow v Alberta Power Ltd questioned whether building a power line over the appelant’s land amounted to trespass. It did, as an unjustifiable interference with possession – despite a relaxation on the principle cujus est solum, ejus est usque ad coelum et ad ed inferos since the advent of air travel.

Edwards v Simms was an American case where Simms suspected a cave which opened on Edwards’s land which was exploited by him as an attraction for tourist purposes ran underneath his land. Could Edwards be compelled to accept entry onto his property to facilitate a survey being undertaken? Court says yes because “there can be little differentiation between caves and mines”.

Estates are classified into 2 groups, freeholds and leaseholds.

Freeholds

3 main types... Fee simple, fee tail and life estate, based on the duration of the estate and measured in lives.

A Fee simple estate is the greatest interest in land recognised at common law and is almost equivalent to ownership.

A fee tail lasts only so long as the lineal descendants of the grantee. A fee tail can only exist as an equitable interest under a trust as it is no longer possible to create a fee-tail estate.

A life estate comes to an end on the death of the grantee – if the holder of the life estate grants it to someone else it still ends following the death of the original grantee. A person in possession of one is called a life-tenant.

Leaseholds

3 main types... fixed-term leases, periodic leases and tenancy at will, based on the duration of the estate. Measured in defined periods – where it differs from a freehold estate is that these estates are measured in defined periods.

A fixed term lease comes to an end on a specified date.

A periodic lease automatically renews at the end of each period unless landlord or tenant gives notice to end it.

A tenancy at will can be ended by either party at any time given sufficient notice.

Parties sometimes fail to specify durations and an informal arrangement may create a lease with implied terms based on custom and the intentions of the parties.

The distinction between a lease and a license has proved to be a difficult one in the courts, with a lease being an interest in land and a license a mere personal right enforceable only against the owner of the property.

More complete definitions of leases are provided by the following cases...

Street v Mountford – a lease is a “contractually binding agreement not referable to any other relationship between the parties by which one person gives another the right to exclusive occupation of land for a [period of time] usually in return for a periodic payment of money”

Bruton v London and Quadrant Housing Trust – “The fact that parties use language more appropriate to a different kind of agreement such as a license is irrelevant”

Prudential Assurance Co Ltd v London Residuary Body – “a term must be certain, [this] applies to all leases and tenancy agreements”... If it is not certain it will be uncertain and can’t be a lease.