Hello Reader, this time Tabir Hukum will discuss about estates.
The feudal origins of real property law provide two fundamental property concepts : the Crown owns all the land, and property is a bundle of rights and obligations, recognized and enforced by law. We have seen that real property rights and obligations in England after the Norman Conquest were based on grants made by William the Conqueror. William retained ownership of the land itself, while granting rights in the land to tenants in capite. The Crown is still the owner of all the land, in the sense that the Crown retains ultimate sovereignty, and land ownership is still ownership of a bundle of rights and obligations with respect to particular parcels of land. These bundles can be devided into various smaller bundles, called estates and interest, held by different people. Thus, Quia Emptores did not end the possibility of several people having different rights and obligations in the same property at the same time, but it limited the ways in which rights and obligations could be distributed.
Let's look at a familiar example. If I rent my house to you for a year we each have certain rights and obligations. You may live there and generally treat the property as your own, but you may not damage it or sell it, and most likely you may sublet it only with my consent. I cannot enter the house except with notice to you, on reasonable conditions. You must pay your rent every month, and give up the house again at the end of the year, or sooner if you do not perform your obligation under our agreement. Thus, we both have different rights and obligations in relation to the property - we could say that neither of us owns it completely, But, since ownership is a bundle of rights and obligations, it is more accurate to say that neither of us possesses the full bundle of rights and obligations that makes up ownership of the house.
It is possible that even together, we do not possess the full bundle, for I may be paying off a loan secured by a mortgage on the house, and my creditor will have rights and obligations under the mortgage. Or the house may be in an area that is designated as a heritage trust area, where legislation prohibits alterations to the exterior of the house without permission of a heritage trust authority. Or the property may be a gift from some ecology activists, who require that I maintain the parennial gardens and plant new trees each year. Additionally, the land may be subject to claims based on aboriginal title of indigenous peoples.
There is nothing very startling in this distribution of rights and obligation, for we have grown up with them. When people describe themselves as owners of real property, we understand that they may not have absolute rights over the property. In modern as in feudal times, property owners must pay taxes. But within the limits set by municipal zoning laws, owners can live on the property, fix up the buildings or tear them down, rent the property, sell it, or give it away. Subject to rights of access others off their property. In short, owners have the right to decide how to distribute the rights and obligations that make up ownership.
Imagine absolute ownership as a complete circle of rights and obligation. As owner, I can divide this circle into various parts. In renting my house, I transfer part of the circle - the immediate right of possession - to you for a defined time, but I retain a large part of the circle that, to use the term of art, is called a "reversion". For the year, we share the circle; I own some rights and you own some rights, in relation to the same property.
The various parts into which I can divide my circle of rights and obligations are called "estates" or "interests". Estates are one of the great inventions of the common law. Another fundamental property concept in the common law world - the division of title into two distinct titles, legal and equitable estates permits great diversity and flexibility in the rights that can be created in land, allowing different people to own different rights in the same land at the same time. Limited and particular rights are generally called interests; a fuller part of the circle of rights and obligations that makes up land ownership is called an estate.
The fullest circle of rights available in land is called a "fee simple estate". In the common law tradition, if we say that O (for owner) owns Blackacre, we probably mean that O owns a fee simple estate in Blackacre. We mean that O is as close as the common law recognizes to having absolute ownership of Blackacre. But we know that the person who rents Blackacre from O, whom we still call L (for Leaseholder) also owns some rights in Blackacre. From now on, then, we will not talk about O owning Blackacre, because we need to be more precise. Instead, we will say that O and L own estates or interest in Blackacre. In the example of L renting Blackacre from O, O owns part of the circle of rights in Blackacre, called a "fee simple estate in reversion", and L owns the rest of the circle, called a "leasehold estate". O owns certains rights and L owns certains rights; together they own the full circle.
In this example, as in all examples involving claims to land ownership in the common law tradition, neither O nor L owns the land itself; each owns rights in or to the land. Recall the feudal triangle, now very flat. At the top is the Crown, owning all the land. At the base is O, holding directly of the Crown, owning a fee simpe estate in a specific parcel of land. O may dispose of some or all of the rights and obligations of a fee simple owner, for a defined term or forever, but O's transactions do not affect the Crown's ownership of the land itself.
An estate is a meansurement of time, defining how long a person may claim rights in a particular property. There are two classifications of estates at common law : freehold and leasehold. In the mediaeval mind, an estate of indefinite durations was greater than an estate that would end at a definite date, as defined in the lease. It was not the length of the estate that mattered, but the indefiniteness of its termination date. Thus, a grant of greater estate than a grant of rights in land for the duration of a person's life was considered to be a greater estate than a grant of rights in land for one hundred years beginning at a precise date, even though the grant of rights for life was almost certainly going to end sooner than the one-hundred year term. But the latter, because it was a defined term, was a "leasehold estate", while the former was a "freehold estate".
Umpteen posts of tabir hukum about estates, hopefully the writing of tabir hukum about estates can be beneficial.
Books : In Writing Tabir Hukum :
Alan M. Sinclair and Margaret E. McCallum, 2005. An Introduction to Real Property Law (Fifth Edition). LexisNexis : Canada.
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| Figure Property Law : Tenures and Estates - Estates |
