Hello Reader, this time Tabir Hukum will discuss about tenure.
The terms on which tenants held land were called "tenure". As the King's most important concern was defence and waging war, his chief demand was for knights. To be a knights service, in which a Baron or a mesne lord agreed to supply a required number of knights in return for his grant of rights in land. Knights services and other form of military tenure carried additional obligations, called "incidents". Most of the incidents attached to the predictable but significant events of everyday life. If the lord had childreen, he could demand contributions from his tenants, called "aids", toward the cost of equipping his eldest son as a knight and his eldest daughter as a bride. Lords could also claim aids for their ransom. Men and women had separate and unequal places in feudal society. Most lords and tenants were men, not women, and the use of masculine nouns and pronouns in describing the rights of landholders is a reminder of the many ways in which one's relationship to land determined one's status.
Today, the power to alienate is considered one of the basic rights of property ownership, but in feudal times tenants could not transfer their rights and obligations with respect to their land without permission of their lord. To obtain this permission, tenants paid the lord a feudal incident called a "fine". Nor could tenants make a will disposing of their real property. On a tenant's death, before the lord would accept the eldest son of the deceased tenant in his father's place, as primogeniture demanded, the son had to pay the lord a sum called "relief". The right of the lord to demand relief applied throughout the feudal triangle, with a variation at the very top, between tenant in capite and king. When a tenant in capite died, the King claimed the incident of primer seisin, meaning first right to possession. Any new tenant in capite had to make new promises of loyalty and pay a sum, in the nature of relief, to enter onto the land.
If tenants died with no one capable of inheriting their property, the lord reclaimed it by escheat. If tenants died leaving children under the age of majority, the lord, by the incident of wardhip, became the guardian of the children, able to manage their land and take the profits, with no liability except for "waste". If the child wanted to marry, the guardian had to approve the choice, and the custom developed that the lord would select a person suitable to him - perhaps someone willing to pay the lord for the privilege - and tender this individual as a proper, potential spouse. The ward could refuse only on paying the sum the lord demanded.
These feudal incidents attached only to military tenures. Other possible tenures included "frankalmoign", in which lords conveyed land to the church or other ecclesiastical bodies in exchange for prayers for their souls. Tenants lower down on the triangle held their land in "soccage tenure", which was of low status but, like frankalmoign, carried no feudal incidents. Soccage tenants produced food, fuel and cloth, both to sustain themselves and to fulfill their service obligation to their lords. Some paid rent, and, as money became more significant with the development of a commercial economy, many lords commuted the service obligation to money payments.
Knight service, too, was eventually commuted to a money payment, and even this payment was given up by the end of the fourteenth century. The commutation of menial and honourable services to money payment made tenure less important, but feudal incidents remained a source of revenue for the lords and the crown; attempts to avoid liability for incidents produced some of the complications of real property law that remain with us today. The Statute of Tenure, passed in 1660, marked a political compromise whereby all lay free tenure was converted to soccage tenure. Henceforth, the majority of landholders held their land by virtue of paying a fixed sum, and, as lords gave up collecting it, people lost track of who once held land of whom. The prohibition of subinfeudation, to be discussed shortly, eliminated a great many mesne lords, so that today almost everyone who owns land holds it in free and common soccage tenure directly of the Crown.
Frankalmoign tenure was not dealt with by the Statute of Tenure, for earlier statutes, called "mortmain legislation", limited creation of new frankalmoign tenures by prohibiting tranfers to corporations or to charities except with special authority. "Mortmain" means literally the "dead hand" and, as corporations do not die, marry or have children, lords objected to corporate tenants since their life cycles offered fewer occasions for exacting feudal incidents. Even today, vestiges of mortmain legislation may create some difficulties in property transfers to coporations or to charities.
Escheat is the other survivor of the feudal incidents. The Statute of Wills, passed in 1540, gave tenants the right to make a will distributing their real property on death. Today, this right is subject, in some jurisdictions, to legislation protecting family members from being left with nothing. If a person dies without a valid will, a situation called intestacy, provincial or territorial legislation lists the people who are entitled to inherit, in order of priority. Generally, spouses and children have first claim, then parents, then siblings. If a person dies intestate and without next of kin, as set out in the relevant legisltion, then the land escheats to the Crown in right of the province or territory in which it is situated. Personal property also reverts to the Crown, but by a diffrent legal theory, called "bona vacantia".
Present-day holders of rights in real property are tenants of the Crown, in free and common soccage, as a consequence of the Statute of Tenures and the prohibition on subinfeudation, as mentioned earlier. Recall that in the early days of feudalism, tenants could transfer their lands inter vivos only after obtaining permission of the lord and paying a fine. This transfer involved substituting the new tenant for the old, and left the various bands in the feudal triangle undisturbed. But an original tenant who did not want to step out of the triangle completely could become a lord of the new grantee while remaining a tenant of the lord above. Instead of substituting the new tenant for the old, they shared rights and obligations in the land. Transfer by this process was called "subinfeudation".
Subinfeudation operated to expand the number of bands in the feudal triangle by introducing the grantee as a tenant of the grantor, who thereby became a mesne lord. Introducing new lord-tenant relationships into the space formerly occupied by a tenant alone created difficulties in collecting feudal services and incidents, for the new bands of mesne lords made it hard to determine who owed what to whom. So, through political compromises, the lords obtained passage of the statute Quia Emptores in 1290, prohibiting subinfeudation. By this Act, where T held of L and T then sold to TI, T must drop out of the picture and TI must hold directly of L. But Quia Emptores also recognized the right of landholders to transfer their rights and obligation to whomever they chose, without first paying a fine to the lord. Free alienation of land inter vivos thus became one of the rights of landholding. Over centuries of land transactions, the L's gradually disappeared and the sides of the triangle got shorter and shorter, with the result that today almost all T's hold directly of the Crown.
Umpteen posts of tabir hukum about about tenure, hopefully the writing of tabir hukum about tenure 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 - Tenure |
