History of Land Tenure in England

A knowledge of the history of land tenure in England assists in understanding the doctrines and terminology that still apply today. The starting point is the Norman Conquest and since then it has been a story of evolution. The property legislation of 1925 did not create a completely new land law, but rather built on the existing structure, although some of that structure was swept away in the process.

Following the Norman Conquest in 1066, William I imposed a feudal structure on England. He was the owner of all land in England by conquest. He granted land to certain of his subjects in return for services and those subjects might in their turn grant that land, or parts of it, to others, again in return for services. Each occupier of land therefore held the land of his lord, that is, the person to whom he owed services. That lord owed services to his lord and so on up the pyramid to the Crown. This method of holding land was tenure. There were various forms of tenure each requiring different services and subjecting the tenant to different conditions.

There were two tenures of chivalry: knights’ service and grand sergeanty. Knights’ service required the tenant to provide a fixed number of knights to fight for the lord (usually the King) for 40 days a year. Grand sergeanty required the tenant to perform personally some honourable service for the King, such as carrying the royal banner. There were also two socage tenures: petty sergeanty and common socage. Petty sergeanty involved services of a non-personal nature such as supplying the lord with arrows, or straw for his bed, while common socage usually required services of an agricultural nature, such as ploughing for the lord for 30 days a year. There were also two spiritual tenures: divine service and frankalmoign. These arose where land was granted to ecclesiastical bodies and required services such as holding church services and praying for the lord’s soul.

Such tenures could only be held by free men and so were known as freehold tenures. Serfs or villeins who were not free men could only hold villein tenure. They performed mainly agricultural services for their lord. Those services were fixed in quantity but not in quality. The villein would have to work for a designated number of days a week for his lord at whatever task the lord required. Villein tenure eventually became known as copyhold tenure. Copyholds were transferred not by conveyances, but by a surrender and admittance carried out in the lord’s court. The transaction was recorded in the court rolls and the tenant received a copy to show his title, hence “copyhold”.

If freehold land was to be sold this could be carried out by the process of subinfeudation or the process of substitution. In subinfeudation, a new tenure was created with the buyer holding as tenant of the seller in return for services given to the seller by the buyer. For example, Lord Blacke might hold land from Lord Reid in return for providing Lord Reid with 5 pounds of pepper annually. Lord Blacke could then grant part of the land to Squire Greene in return for him providing Lord Blacke with ten days’ ploughing by one man every year. In this way, there was no limit to the number of new tenures which could be created.

In substitution, a new tenure was not created; instead the new tenant stood in the shoes of the old tenant and owed services to the lord. If in the above example, Squire Greene had taken by substitution, he would hold the land directly from Lord Reid as his lord and render the appropriate services directly to Lord Reid. The Statute Quia Emptores was passed in 1290 which prevented any new tenures being created by subinfeudation other than by the Crown. This Act is still in force today so when a person conveys land in fee simple, the tenure is shifted from the grantor to the grantee by substitution. Quia Emptores may therefore be said to be the start of modern land law.

By the fourteenth century, partly as a result of the large reduction in the number of labourers caused by the Black Death, the feudal structure was in decline. In place of the rendering of services, the tenant made money payments to the lord. As inflation reduced the value of collecting these fixed sums, many lordships came to be forgotten. The Tenures Abolition Act 1660 converted all tenures into free and common socage except for copyhold and frankalmoign. Frankalmoign was probably already obsolete but was formally abolished in the Administration of Estates Act 1925. Finally the Law of Property Act 1922 (LPA 1922) enfranchised copyhold land, that is converted it to freehold tenure. Certain rights such as to work mines and minerals and sporting rights were preserved by LPA 1922 and can still be of practical importance. Where on first registration the title deduced reveals the rights of the lord have been preserved by virtue of the Twelfth Schedule to the LPA 1922, or Copyhold Act 1852 or Copyhold Act 1894, an entry to that effect is made in the property register.

The only form of tenure under which freehold land is now held is common socage. The doctrine of tenure has little practical importance today but remains the theoretical basis on which land is held. The changes in the law have removed the practical effects of tenure without removing the underlying doctrines.

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