Land tenure in Great Nortend

Land tenure and property law in Great Nortend is a highly complex area of the law which arose out of the mediaeval systems of feudalism and grew into a distinctively Erbonian system. The basic framework under which the system of land tenure works is that of the relationship between lord and vassal, as well of that of an estate. A lord, such as the King, owns land outright as an allod, and may grant an estate in land to a vassal, known as a fee. Property is divided into real property (proprietas realis) and personal property (proprietas personalis).

Proprietas Realis

Proprietas realis includes corporeal hereditaments such as an estate in land, as well as incorporeal hereditaments such as easements.

Grants and Alienations

A grant is a subenfeoffment of an estate by a grantor to a grantee. An alienation or assignation is the devisal per testamentum or conveyance inter vivos of an estate in whole by an assignor to an assignee. A grantor retains an interest in the land as mesne lord, whereas an assignor loses all interest in the land. For example, if A grants B a life estate (fee per vita), A becomes a mesne lord over B, who is tenant in possession. On the other hand, if A, holding an estate from C, assigns B the estate in the form of fee talliatum, A relinquishes all rights he may have, and C becomes the direct mesne lord over B. Even in reversion, the estate returns to C, not to A, who is considered to hold no proprietary rights or jura in rem in relation to the estate.

Under the Statute of Subenfeoffments, 4 Peter II, a lord may subenfeoff another in a fee talliatum or fee libera only if he himself had fewer than four mesne lords. Thus, if A held of B, who held of C, who held of D who held of the Crown, A may grant E an estate, but if D held of F who held of the Crown, A would only be able to either assign the estate to E, or grant E a fee per vita, or let to E under contract. Alternatively, he may be able to apply for Royal licence to subenfeoff.

Tenures

Of the lay tenures, the most esteemed is undoubtedly a tenure per baroniam, whereby the tenant becomes one of the King’s barons and thus a peer of the realm. It is itself a species of tenure per servitium militare or chivalry.

A species of tenure per servitium militare is tenure per magnum servitium, or grand serjeanty, whereby the tenant is bound to render some service to the Crown, such as to bear the King’s banner, or to serve as the king’s footman. It is also the tenure whereby certain offices of the state are held, such as that of the Lord High Steward, the Lord High Chancellour or the Lord High Constable, inter alia.

The more common type of tenure is tenure per socagium, or in socage. It denotes tenure by the rendering of certain services, goods or money to the lord. When rendered to the Crown, however, it is known as parvum servitium, though identical in all respects to socage yet by the rendering thereof to the majesty of the Crown, it is dignified by the title. Another form of tenure per socagium is tenure per burgagium which attached thereto the right of sending burgesses to the House of Burgesses in Parliament.

Nowadays, the distinction between tenure per socagium and tenure per servitium militare is little; the military services demanded of the latter are by convention commuted to monetary payments, known as scutagium.

Another form of tenure is tenure per cotagium, which denotes tenure as a cottager. It is tenure by uncertain service to the lord, rather than the certain service of a socager. Such tenure requires the tenant to perform base services for the lord, such as ploughing his fields, hedging the lord’s fields or to carrying dung. In effect, the cottager is a menial labourer.

The existing spiritual tenures are tenures per libera eleemosyma and tenures per divinum servitium. The former is held by an ecclesiastic who is bound of right to say prayers or masses for the soul of the grantor, for the souls of the grantor’s heirs who are dead, and for the prosperity and good life for the grantor’s heirs who are alive. The latter is similar, except the service is certain and specified in the deed creating the tenure.

Fees and Leases

The forms of estates generally indicate the duration of tenure or method of descent. The distinction lies between fees and leases, the former being for an indefinite period of time whereas the latter being of a definite period of time. Alternatively, a fee is a proprietary estate which is held in fealty, whereas a lease is a licence under a contractual relationship, and thus the former is enforceable erga omnes whilst the latter only inter partes.

Fees

Many estates are of the form of a feodum talliatum, where the estate lasts until it is ‘cut off’ by lack of valid heirs. The original instrument of creation of the estate specifies a method of descent which cannot be altered by any tenant either inter vivos or per testamentum. For example, both the corporeal and incorporeal hereditaments of a peerage (i.e. the fee as well as the title) descend according to the original grant which is generally by male preference primogeniture. If there are no valid heirs, the estate reverts back to the grantor.

Most estates held in socage are usually feodum liberum which is an estate which can be freely devised. It grants a tenant the rights to freely alienate his estate by devise inter vivos or per testamentum. Otherwise, when the tenant dies intestate, the estate descends according to the rules of male-preference primogeniture. Upon death with no valid heirs, the estate reverts back to the mesne lord or any remaindermen.

Another form of estate is a feodum pro vita or pro altera vita, which is an estate which lasts for the life of the specified person, known as the cuius vita. It is considered a lesser estate than a feodum liberum and thus can only exist as a grant, rather than an alienation. The holder of the estate may devise his interest inter vivos or per testamentum in the case of an estate in feodum pro altera vita as long as the grant did not mention any remaindermen. Upon the death of the cuius vita, the estate reverts back to the grantor.

A grants to B, and then D, for the life of C, and then to E: estate in feodum pro altera vita of C to B, and upon B’s death to D, and upon C’s death an estate in feodum pro vita to E.

Leases

The tenure of a lease is not considered to be in fee but rather a licence. They are bound by contractual relationships, rather than proprietary rights and feudal relationships.

A tenancy certain is one which lasts for a specified duration, such as for one year, until a specified date, or until a specified occurrence. Rent is paid usually in one lump sum.

A tenancy periodic is one which lasts for periods of time contingent on the payment of rent or some other obligation, which is due per period. A period can be for as little as one second or as long as 999 years. Tied cottages generally are considered to be tenancies periodic, where the rent is taken to be the service performed in the course of employment.

A tenancy at will is a tenancy which has no fixed time limit, but may be ended by either the tenant or landlord ‘at will’. There is no rent in such a situation, and owing to the rule against perpetuities, there is never a valid contract between tenant and landlord. If the landlord may terminate for specified reasons listed in a contract or document, this converts the tenancy to a periodic tenancy, contingent on the condition.

Hence, a tenancy at will is not in fact a form of lease proper, as it is not of certain duration, and indeed, aspects of a tenancy at will are similar to that of a tenure per cotagium. However, it is traditionally classified as a lease, owing to the implied parol covenant underpinning such a tenure.

Actions to recover possession

In most cases relating to proprietas realis, the demandant wishes to recover possession of land which he claims has been dispossessed by the tenant. This may be achieved in a number of different ways which inter alia include the following writs.

Writ of recto

A writ of recto is a royal writ obtained in chancery by the demandant brought in the sessions of the mesne lord from which the fee is held against the disseisor. Judgment is given based on absolute title, rather than merely a better title. It is often a lengthy and costly remedy owing to the proliferation of essoigns, and thus is not often used, given that the following writs are usually much quicker.

Writ of disseisina

A writ of disseisina is obtainable by a plaintiff where there has been a disseisin of property. It merely requires jurors to determine whether the defendant had disseised the plaintiff of the property without judgment of a court. It thus does not determine right but merely restores possession.

Writ of ejectione

A writ of ejectione is a special form of writ of conventione which allows a tenant certain or periodic to recover damages for dispossession of land for the rest of the period. As the tenant has no jura in rem against the ejector or possessor, the only recourse in law is to the landlord in the form of breach of contract. It seeks to order the landlord to render possession to the plaintiff, being a breach of the contract of a lease by writ of injungimus. Being a form of contractual action, the plaintiff is also entitled to damages from the defendant. By the Statute of Ejection, courts are empowered by writ of injungimus habere facias possessionem to order the sheriff to deliver possession to the plaintiff if the landlord is unable to, in addition to the regular law damages.

Writ of ingressu

A writ of ingressu is a species of a writ of praecipe quod reddat which allows the plaintiff to recover property from a lessee whose term has now ended. The writ alleges that the defendant had no right to enter the property except by the plaintiff (or plaintiff’s ancestour’s) lease, which has now ended.

Writ of intrusione

A writ of intrusione is a type of writ of ingressu may be sought when between the death of a person seized of property and entry thereto before the reversioner or remainderman obtains seisin, a stranger known as the common intruder obtains possession of the property against the remainderman or reversioner.

Writ of abatamentum

A writ of abatamentum is a type of writ of ingressu which may be sought when between the death of an ancestour and the entry of the heir, a stranger known as the abatour obtains possession of the property without right. It differs from disseisina in that the plaintiff never has seisin of the property and that no person had possession of the property and from intrusionein that it is against the heir or devisee rather than remaindermen or reversioners.