tenure (law)

tenure in law, manner in which property in land is held. The nature of tenure has long been of great importance, both in law and in the broader economic and political context. Tenure has varied greatly from feudal to modern times; although the patterns of transition have been many, the essential nature of the problem and its legal complexities can be seen in the development of tenure in English law.

Feudal Tenure and Its Evolution

The term tenure may refer to landholding of any type; it usually implies, however, that the landholder does not have absolute possession but derives the right from some other person. This meaning of the word originates from its sense in feudalism; so used, tenure is the antithesis of alod , absolute ownership without obligation to others.

The modern Anglo-American law of land developed out of the institutions of English feudalism established after the Norman Conquest (1066). Theoretically, the monarch was the ultimate owner of all the land; in practice, however, certain land was held according to earlier custom. Those who were feudal tenants always held land of another (the lord or landlord) to whom obligations were owed. The type of tenure essentially established the tenant's social status; the term estate (deriving from status) thus came to be applied to the various types of tenure.

The early tenures were classified basically as free or unfree. Unfree, or servile, tenure was generally that of the villein , who performed menial services and was a tenant at the will of the lord (see manorial system ). Tenancy by custom eventually became a permanent right in the property when such tenures were recorded in the copy rolls (parchment records) of the manorial court, and the villein became a copyhold tenant.

The various types of free tenure are sometimes described as means for ensuring performance of all the services required by the state. Military needs were guaranteed by knight tenure (see knight 2 ). Spiritual welfare was provided for by frankalmoign tenure, i.e., granting lands in charity to religious bodies. Serjeanty tenure furnished the king with needed officials and with personal services. Finally, the vital cultivation of the land was accomplished by socage tenure wherever villeinage was not in use.

Socage tenure is especially important because it is the basis of all modern estates, while the other classes of tenure have all disappeared. The socage tenant, or socager, held his land in return for performing duties to the lord. These incidents of socage were essentially like the aids and scutage exacted of knights; like those, they were also eventually commutated into fixed money payments.

In the development of the law of land perhaps the most important incident was the fine for alienation. This was the payment of a sum to the lord for permission to alien (or alienate) the estate, i.e., to grant it (sell or make a gift of it) to another. The right of free alienation, a cornerstone of modern property law, was partly guaranteed in 1290 by the statute Quia emptores, which abolished the fine. However, freedom to dispose of land by will on the tenant's death was not established until passage of the Statute of Wills (1540). In inheritance of land primogeniture was usually observed; different local customs, notably borough-English and gavelkind , were, however, also observed. If the tenant had no heir the estate went back to the lord; such reversion was called escheat.

Socage tenure eventually developed many varieties, commonly called fees. (The word fee stems directly from fief and ultimately from feud, both terms of feudal law.) Fees are divided into freehold and nonfreehold. The freehold fees are fee simple, fee tail, and life fee.

A fee simple is essentially absolute ownership of land; it includes, therefore, complete freedom of alienation and (since 1540) of devising (bestowing by will). An estate in fee tail was one bestowed as a gift to the donee and to his issue (children) or a class (male or female) of his issue. Read literally, the terms of the grant prevented alienation of the land out of the prescribed line of succession. A life fee or a life estate was one that would endure for the lifetime of the grantee and after his death would go to some other person. The life tenant had no power of alienation.

Nonfreehold estates include estates for years, periodic estates, estates at will, and estates at sufferance. An estate for years is one that will expire at the end of a fixed period. A periodic estate is one for a set term, which is automatically renewed if neither party takes steps to terminate it. Most modern leases of real property and buildings establish periodic estates. A tenancy at will is one that may be terminated by the tenant or the landlord; it is generally interpreted by a court as being implied from the facts. An estate at sufferance arises when a tenant continues to occupy the land after the right to occupancy has expired; the tenancy subsists only so long as the landlord does not object.

The struggle over whether land should be freely alienable dominated English land law; it was resolved by the 18th cent. when the alienation of land could no longer be restricted beyond a limited period. The ultimate effect of this tendency was to assimilate the law of real property in most important respects to that governing personal property. At the time of the American colonization this development to free alienation was already well advanced; hence, few of the typically feudal features of land law were adopted in America. Today some of the states provide that landownership shall be in free and common socage and others that it shall be alodial. In practice there is little difference.

Land Tenure as a Modern Problem

In modern times land tenure has been a vexing economic and political issue throughout the world; it has given impetus to nationalism and to revolution, especially in largely agrarian Asia, Africa, and Latin America. In the 19th and 20th cent. there has been wide demand for small farmer ownership and for secure tenure for tenants.

The end of feudalism and of serfdom in Europe and elsewhere left small holders in an insecure position. After the French Revolution, security of tenure was provided for French cultivators, but elsewhere in Europe, where servile obligations were generally abolished by 1860, most of the land was possessed by nobles and other wealthy classes; tenant cultivators were subject to high rents, easy ejection, and no allowance for improvements. Thus there arose the demand for peasant proprietorship through the purchase or appropriation of land by the government, which would then resell small parcels to the peasantry on easy terms.

Also, agitation began for legislation favorable to tenants regarding rent, sale, lease, land improvement, and absentee landlordism. Since the late 19th cent. such programs have been established in most countries of Europe, Ireland (see Irish Land Question ) and the Scandinavian countries being among the first. Most recently in Europe, especially where the long establishment of secure tenure has led to minute subdivision, government activity has tended to favor some consolidation of holdings, as in the Netherlands.

In the 19th cent. the spacious lands of Australia, Canada, and the United States enabled the governments of those countries to grant substantial holdings cheaply to farmers, who thus became owners rather than tenants. However, problems did develop, notably in the struggle of the sheep or cattle ranchers, who desired secure tenure for the vast lands they required, against the small farmers, who in turn wanted the right to settle and own parts of these tracts.

These difficulties, particularly prominent in Australia, were resolved in the several nations by the early 20th cent., generally in favor of the small farmers. Legislation was also passed in the 20th cent. to provide secure tenure and easy farm purchase for the body of tenants who had by this time emerged. The fundamental purchase enactment in the United States was the Bankhead-Jones Farm Tenant Act (1937). In Latin America, however, the tenure problem remains widespread, and in many countries a few owners still hold most of the land, while the majority of the cultivators are squatters.

Tenure in Transition: Africa and Asia

Characteristically, under customary tenures the rights of peasant transfer remain limited, obligations for the payment of rent are often imposed upon the cultivating community as a whole, and debts are hereditary from generation to generation. Such conditions still prevail in much of Africa and Asia.

In the Middle East, tenure was long dominated by customary and feudal characteristics and also by religious considerations. Under Muslim rule the state theoretically owned all land, and rent and other tenure conditions were different for Muslims and non-Muslims. A wide variety of tenures grew up, including free usage of land for religious purposes and unrestricted ownership. These have had counterparts in Europe under customary tenures. Large-scale reform and redistribution of land were begun in Egypt by the laws of 1952, and Turkey passed reforms in 1945, but in much of the region customary and semifeudal land tenures prevail.

British reforms in India also illustrate some of the complex problems of replacing customary tenures with a contractual system. In contrast to native systems, the British introduced easy transfer of agricultural holdings and allowed foreclosure of property for debt. Consequently the commercially knowledgeable class, the moneylenders, were able to gain many holdings because the poor and inexperienced peasantry contracted unrepayable debts. Where permanently low rents were established in India, landholders sublet at outrageous prices when land values rose. Similar problems have arisen elsewhere in the transformation from customary to contractual tenures.

In those Asian countries where American influence became strong, tenure reform has usually taken place, as in Japan (1946) and Korea (1948). There and elsewhere, experience has shown that without accompanying reforms of agricultural credit, education, and taxation, enabling peasant proprietors to discharge contractual obligations, tenure reforms are only partly successful. The Communist government of the former Soviet Union long vacillated, for economic and political reasons, between collectivization of land (see collective farm ) and allowing a substantial number of private holdings. The same situation has existed under other Communist governments, including that of China.

Bibliography

See F. Pollock, The Land Laws (3d ed. 1896); W. S. Holdsworth, An Historical Introduction to the Land Law (1927); C. J. Moynihan, Introduction to the Law of Real Property (1962).

land tenure in early medieval Ireland was generally determined by kinship. It is, however, necessary to disentangle the notion of land tenure, since there is a serious danger, especially for pre‐Norman Ireland, of anachronism. It is here taken to comprise first‐order rights to use, and to control the use of, land; it may also include second‐order rights to alienate and to prevent alienation of the first‐order rights. Which of these rights are recognized will vary from one society to another.

Inheritance was a right enjoyed by an individual as against his kindred. This came in two stages: first, when sons divided the land of their father; secondly, when they had a right to ask for a redistribution within their generation of the kindred. An inheritor had the exclusive right to the products of the land, unless a contract had been made with a lord whereby an annual food render was due. It was not expected that a kinsman would always cultivate his land by himself; ploughing was normally done in collaboration with other kinsmen and even non‐kinsmen might be involved in arrangements for joint herding of livestock. On the other hand, a kinsman had an obligation to his kindred to cultivate the land in such a way as not to reduce its value or harm his fellow kinsmen. In other words, inheritance involved obligations as well as rights.

No kinsman had the right to alienate his inheritance without the consent of the kindred. Acquired land could be alienated more freely, but even here the kindred had a right to a proportion of a man's acquisitions, more if they were made by using his inheritance, less if they were not. Broadly, therefore, the individual held the rights to use land, the kindred to alienate it, while legal rules governed the transference of land within the kindred.

There were various forms of temporary tenure of land. One was enjoyed by the banchomarbae, ‘the female heir’. She was someone who had inherited land in default of brothers. (Women could, of course, own acquired land outright and regularly inherited moveable property.) The banchomarbae had possession of the inheritance for her lifetime. So far she was no different from any kinsman. What distinguished her case and made her possession seem more temporary than the norm was that she could not transmit her land to her sons, since they belonged to her husband's kindred and not to hers. The danger of the land passing out of her kindred was met by requiring her to give guarantors that it would return. Her possession thus assumed a contractual character, although it was, within its limits, as good an inheritance as any other.

Still more contractual was the tenure enjoyed by the client (see clientship) by virtue of a grant from his lord. Normally this grant consisted of livestock, but sometimes, perhaps especially for younger men who had not yet inherited, it might consist of land. This was then held under the terms of the contract of clientship. The fuidir or half‐free may have held land from a lord at will, but evidence is scare. Land could also be held for rent, in other words, under the terms of a contract which, unlike clientship, did not involve any personal subjection of the rent‐payer to the owner of the land.

Anglo‐Norman invasion and settlement brought a new system of tenure. This was rooted in lordship rather than ownership. Social status was determined by tenure, together with the rights and obligations attached to it. The medieval manor was not an estate in the modern sense: it was a society defined by its relationship to a common lord.

The Anglo‐Norman state was a manor writlarge. The king reserved certain counties (e.g. Dublin, Waterford, and Louth before 1200), manors, and towns in demesne. The rest he granted to his immediate vassals, the great tenants‐in‐chief, like Strongbow (Leinster) and de Lacy (Meath), to hold by military service of 100 and 50 knights respectively. They were bound to the king by the same nexus of feudal rights and obligations as the humblest military vassal of the humblest lord in the realm: 40 days' military service, wardship, relief, licence to marry, suit of court, and the payment of scutage and tallage when required. In return the vassal held his fief by the immutable laws of feudal inheritance and received his lord's protection.

Further down the tenurial scale were the honorial barons, particularly in Meath and Leinster, who held entire cantreds from their tenant‐in‐chief overlord. These were divided into smaller manorial units held by knights or free tenants.

Apart from fief‐holding military tenants, whose tenures were governed by feudal law, there were six classes of tenants commonly encountered on Anglo‐Norman manors: free tenants, burgesses, farmers, gavillers, cottiers, and betaghs. All, except betaghs, enjoyed free status, though some were burdened with labour services in addition to rents.

Free tenants ranked next to the military tenants. In 14th‐century manorial extents the largest free tenements are listed indiscriminately with the fiefs, suggesting that earlier social distinctions were blurring, perhaps because free tenants were obliged to bear arms in proportion to their wealth. Their duties were normally confined to payment of rent and suit at the manor court every fortnight. By virtue of their tenures the burgesses could sell their burgage land or marry without licence of the lord, but they were commonly obliged to transport salt, wine, or iron at the lord's behest. The privilege of pleading in the hundred court (town court) instead of the manor court protected them from interference by manorial officials. Farmers, who were probably recruited from other classes of tenant, held their lands on lease, often with suit of court and labour services on the lord's demesne. Lowest on the social scale were the gavillers and cottiers, who lived on smallholdings, paying rents and performing labour services on the demesnes. The humble cottiers lived in cottages in the lanes of the towns, unlike the burgesses who lived on the high street. Betaghs, unfree tenants of Irish origin living in communities called betaghries, paid rent for their common lands, and by 1300 normally paid rent in lieu of services. Generally, they seem to have been better off than cottiers and gavillers of English origin.

Early modern land tenure, as in England, continued to be dominated by the assumption that all land was owned absolutely by the king and that others held from him either directly or indirectly by letters patent or royal lease. In theory Gaelic Ireland had no such hierarchy of tenures, land being held absolutely by freeholders who rendered services to overlords. By the middle of the 16th century the increasing influence of English common law and the adoption of English ideas by the greater native Irish lords had undermined this older system.

Under common law two types of tenure, freehold or leasehold, were available to any landholder, including the crown, wishing to create tenancies on land. Freehold was of two types, a fee simple which subsisted for ever, and a fee tail which was restricted to the immediate descendants of the original grantee. Royal grants were usually fee simple and held under one of two main sets of conditions, knight service and common soccage. Knight service was the more burdensome and the more common in 16th and 17th‐century Ireland. It involved liability for homage, wardship, and reliefs, such as the payment made to a lord by a tenant of full age on succeeding to land by descent. Soccage tenures were less burdensome. They were used in grants made under plantation schemes to encourage settler landlords to move to Ireland, but in the 1630s Wentworth attempted to convert soccage grants to knight service using the Commission on Defective Titles. The distinction between knight service and common soccage was abolished by the Tenures Abolition Act (Ireland) 1662.

The second type of tenure was leasehold, the characteristic of which was that it subsisted for a fixed period, usually years or named lives, over which a rent was paid and certain conditions, negotiated between landlord and tenant and set down in the lease, were observed. The final main category of tenancy was a tenancy at will which, although it might continue indefinitely, might also be terminated by either party at any time. All three tenures, freehold, leasehold, and tenant at will, were in use in early modern Ireland and were seen as an appropriate reflection of social distinctions. In both the Munster and Ulster plantations, for example, the government prescribed a predetermined mixture of tenures as a means of creating a balanced social hierarchy.

Economic conditions in 17th‐century Ireland produced a new form of tenure unknown in other areas, combining elements of both leasehold and freehold. This, first appearing in Ulster during the late 17th century, became known as a three life lease renewable for ever. The freehold element derived from the fact that, since lives could be continuously inserted on payment of a fine the lease was, in effect, a perpetuity. But it also contained the normal stipulations of a lease relating, for instance, to distraint and re‐lating, for instance, to distraint and re‐entry for non‐payment of rent. In this way the interests of landlords were protected while allowing long leases which encouraged substantial tenants to settle on an estate.

Irish land tenures in the 18th and early 19th centuries were diverse, reflecting long‐term changes in the balance of supply and demand for land, the attitude of individual landlords, and the effect of government legislation. During the 18th century, the usual tenure for middlemen and the larger tenant farmers was leasehold, but this varied widely in its terms and conditions. The most favourable leases were those for lives renewable for ever, or for named terms of several hundred years, either of which made the tenants concerned landowners in all but name. Most leases were much shorter, and were either for a named term of usually 21 or 31 years, or for two or three lives with or without a concurrent or consecutive reversionary term of years. The reversionary term safeguarded the tenant's interest. If his named lives died prematurely, he retained the farm for the balance of the stated period. Leases became shorter towards the end of the 18th century as landlords sought to retain a larger proportion of the increasing value of their property for their own use.

In the 18th century, vacant leaseholds were frequently ‘canted’, or offered to tender by the highest bidder. Both new and existing tenants were often expected to pay an additional sum or ‘fine’ on entry or renewal. Leases usually also stipulated levels of tenant investment and other obligations. Up to 1850 the parliamentary franchise in the counties was restricted to tenants (until the Catholic Relief Act of 1793 Protestant tenants) holding leases for lives.

During the early 19th century, the pattern of tenure changed rapidly. Many landlords replaced leaseholds with annual tenancies, while the Great Famine bankrupted most remaining middlemen. Annual tenancies allowed rents to be raised each year and placed the tenant on six months' notice to quit, enhancing both the landlord's economic control over his estate and its profitability. In towns and villages, monthly and weekly tenancies became increasingly widespread. By c.1870, approximately 80 per cent of Ireland's 500,000 tenants held annual tenancies, while the relatively few newly created leaseholds were for no more than 21 or 31 years. A loophole in the 1870 Land Act, permitting tenants of land worth more than £50 to forgo their claim for compensation for improvements, temporarily encouraged the granting of more leaseholds, as landlords presurized tenants into accepting leases with appropriate excluding clauses. With the passage of later Land Acts, however, the existing system of tenurial landholding was abolished and replaced by owner occupation.

See also landlords.

Bibliography

Empey, C. A. , ‘Medieval Knocktopher: A Study in Manorial Settlement’, Old Kilkenny Review, 2 (1982–3)
Gillespie, Raymond , Settlement and Survival on an Ulster Estate (1988)
Otway‐Ruthven, A. J. , A History of Medieval Ireland (2nd edn., 1980)
Vaughan, W. E. , Landlords and Tenants in Mid‐Vic‐torian Ireland (1994)
Wylie, J. C. W. , Irish Land Law (1975)

TMC‐E,/CAE,/RG,/ and Thomas M. Charles‐Edwards