| English feudalism |
|---|
 |
| Manorialism |
| Feudal land tenure in England |
| Feudal duties |
| Feudalism |
Afreehold, incommon lawjurisdictions orCommonwealth countries such asEngland and Wales,Australia,[1]Canada,Ireland,India and theUnited States, is the common mode of ownership ofreal property, or land,[a] and all immovable structures attached to such land.
It is in contrast to aleasehold, in which the property reverts to the owner of the land after the lease period expires or otherwise lawfully terminates.[3] For an estate to be a freehold, it must possess two qualities: immobility (property must be land or some interest issuing out of or annexed to land) and ownership of it must be forever ("of an indeterminate duration"). If the time of ownership can be fixed and determined, it cannot be a freehold. It is "An estate in land held infee simple,fee tail or for term of life."[4]
The default position subset is theperpetual freehold, which is "an estate given to a grantee for life, and then successively to the grantee's heirs for life."[4]
In England and Wales, before theLaw of Property Act 1925, the default position was thefee simple estate , a freehold transferable to the owner's "heirs and assigns" (successors by inheritance, or purchase/gift, respectively). Those three words were often included in a conveyance to stress fee simple status. Afee tail estate describes when transfer (by inheritance or otherwise) was limited to lineal descendants of the first person to whom the estate was given (known as "heirs of the body" or "heirs of the blood"). There were also freehold estates not of inheritance, such as anestate for life andcopyhold was promoted into freehold by the Act.
All estates can be subject to payments to an influential prior owner – or land management person or body for multi-property (communal) benefit (estate rentcharges). The most viable form is the form for a neutral or pre-agreed source to collect communal benefit payments, the estaterentcharge. Either type is usually protected by registering the deed of rentcharge against the land. They can be extinguished by a compensation-based statutory procedure, which removes the regular administrative burden on both parties.
Estate rentcharges are potentially subject to abuse, known as "fleecehold".
Any existing rentchargesother than estate rentcharges will be extinguished on 22 August 2037.[5]
Should the owner be guaranteed to benefit or wish to benefit from a communal infrastructure that requires maintenance, not funded by taxation, thenHalsall v Brizell (regarding an estuary wall) andRe Ellenborough Park (regarding a communal garden) confirm that in those circumstancespositive covenants run with freehold land. This means active duties to pay can exist – in very closely analogous cases – but are otherwise generally void as to freeholds.
Freeholds (rather leaseholds if subject to a leasehold) could quite easily be acquired by squatting before theLand Registration Act 2002.[6][7]
Since its passage such rights are dominated by precisely fixing on the line of neighbouring plots in mutual-boundary disputes, after 12 years without formal contest. This is as there is otherwise a requirement to put the previous legal owner on written notice – which must have been received, or deemed received such as by recorded delivery, and be given fair opportunity to object. It is also more easily applicable to unregistered land, which is the status of a tiny number of parcels of non-agricultural freehold land in England.[7][6]
More than one legal owner means the land is deemed to be on trust. This doctrine is designed to bind the parties to act fairly to each other in the eyes of thelaw of equity. In default of other provision, such as mention of a trust deed, or background facts, the beneficiaries will be deemed to be the trustees (those named on the registered title) themselves. If a trustee dies then thestatutory trustees take their place, or those appointed by a probated Will. Similarly if a company is wound up then the right to act as the trustee and be registered as a legal trustee vests in the liquidator.
As regards third parties interested in lending against or purchasing the land the general doctrine helping them is thebona fide purchaser without actual nor constructive notice doctrine. This is however subject to all of the prudent surveyors, conveyancer's and physical checks having been carried out well which is formulated in the countering doctrine ofcaveat emptor (buyer beware). A beneficiary in patent actual possession can still enjoy rights as against a purchaser, or more commonly a mortgage or other secured lender, under theLand Registration Act 2002.
Trustees are bound by the terms of the trust, but the strict rules andmaxims of equity and by any decisionformally made by all of the adult beneficiaries.[8]
Inequities the Trusts of Land and Appointment of Trustees Act 1996 (TLATA)[b] resolved included the fact that it was hard to establish a trust without it coming under the auspices of theSettled Land Act 1925. That earlier Act brought a range of problems. In particular, the co-owners of property were regarded as having beneficial interests in money and not in the land. Problems arose where partners disagreed over when they wanted to sell a property – usually in the case of separation. This led to situations where spouses and children could find themselves removed from their customary home inequitably.
One of the key features of TLATA is its imposition of statutory considerations to be taken into account when dealing with the disposition of trusts and ordering a sale of a family home.
St John's Cathedral is the only freehold land in Hong Kong, with a statutory requirement that the land must be used for religious purposes of the Church of England.[9] All other lands are granted in leasehold.[10]
