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Property L5/6 - Property as Land – Intro: Radical Title & ‘The Fiction of Feudalism’ How English land law developed 

How did people think about the ownership of land? o Story is partial and disputed (historians, anthropologists, jurists etc)  Before the Norman Conquest of 1066: Saxon, England o Combination of various Kingdoms o Saxon England had its own particular way of holding land  Saxon landholding (elements): o Communal o Family was the basic unit & only private land was that around the family home o Unenclosed agricultural land, divided into strips o King did not ‘own’ the land of subjects, and thus could not give it away o ‘thegns’ or lords had the use of more strips of agricultural land (this week’s reading) Susan Reynolds: Feudalism is misunderstood, there wasn’t a big break from Saxon system when William conquered England in 1066 – feudalism and the land belonging to crown just rationalised, worked with what was already was happening Sovereignty:  Differences/Similarities between what we think of sovereignty (the gov.) and property (what belongs to you)  In theory if country changes sovereign you would not lose property  This was the Saxon Reality – King, communal property, but gov. wasn’t necessarily linked to ownership of land  Church had most land William the Conqueror  Battle of Hastings – William the Conqueror = introduced new law and new administration  He brought the Norman (French) land system – called early feudalism – the feudal system is based on a pyramid of power – Land is held from the King and is held in return for certain kind of services  So, this new system = sovereignty included ownership of property – took actual ownership of the land  Underlying principle = King owns all the land, means that for you to own land you had to get it from the king, had to have a grant of land from sovereign – otherwise you could have possession of land, but you wouldn’t be entitled to hold it – the only ownership came from grant from sovereign Feudal system:  As the land goes down, the services go up  So, Knights provide military service  bishops provide religious service, farmers provide food  Technical term = subinfeudation  = process of creating different kind of feudal tenders

This got very complex, can only give what you yourself can hold and only for how long you can hold it e.g. life interest, as long as I am alive I can live there, length of life only exists as person who own the house is alive, only can give a piece of what you yourself have – now how people live in the world, need to look after family, further away from King is (all land held is of the king) Basic relationship:

Crown

Crown ↓ ↑ Fee simple (feodum simplex) – no heirs

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Crown gives actual ownership (when you have ownership of and entirely forever! Let us say you do not have heirs, you die – even today, that land goes back to the crown Why does it go to the crown instead of common pool where it is portioned/distributed to community to house homelessness? Why not? Because of the idea that which goes down the feudal ladder, also goes up!

Under this system, have interest in land for particular length of time Freehold  all of the land forever BUT in the feudal times and even till recently, when you give land to someone you split it out use and time and ownership in diff. ways What is land or grant of land? • land = an ‘estate’ in land • an ‘estate’ in land = 1. possession or use 2. for a period of time • granted by the king or feudal lord, and thus held ‘of’ the crown: ‘tenure’. ownership stays with the crown. • that’s it. not ‘dominium’, and not ‘because we’ve always owned or used or otherwise occupied this land’ (this is what happened with Mabo – two different way of owning land – there was a crash – noting how language of property was used to manipulate ownership – we need to first know where colonisers were coming from) Early feudalism = includes ownership of property Domesday • As we see in the document called the ‘Domesday’ book – a list for purpose of taxes of every piece of land ownership in England, social status, how long they hold the land etc. - a lot of this places are still in existence now • The Domesday Book was commissioned in December 1085 by William the Conqueror, who invaded England in 1066. The first draft was completed in August 1086 and contained records for 13,418 settlements in the English counties south of

the rivers Ribble and Tees (the border with Scotland at the time). http://www.domesdaybook.co.uk Sovereignty + Property = Radical Title  Radical title means you are the one and only owner – property and sovereignty come together – after William the Conqueror this is the type of ownership the crown had  Imagine you conquer a land – you acknowledge the property rights if there are a gov., but you can still take property ownership – if you go and there is no gov. you recognise you just take the land and impose your own law = this was the basic problem of colonialism – America, Australia – land occupied, but not owned, people not holding land how English own land i.e. from a central authority  "It is not surprising that the fiction that land granted by the Crown had been beneficially owned by the Crown was translated to the colonies and that Crown grants should be seen as the foundation of the doctrine of tenure which is an essential principle of our land law."  "Accepting the doctrine of tenure, it was an essential postulate that the Crown have such title to land as would invest the Sovereign with the character of Paramount Lord in respect of a tenure created by grant ... [This was achieved] by attributing to the Crown a title, adapted from feudal theory, that was called a radical, ultimate of final title...” Brennan, J. Mabo [No.2] (1992) 175 C.L.R. 1 at 46 - 49 By end of 12th c – this feudal type of system was a fiction – land stopped being owed by the crown, you could live the land to children, others - Feudal ladder got too long - Substitution But – it remains enshrined in English land law: • Land is still an ‘estate’ in land (ownership rights, usually exclusive possession, for a particular length of time) • The crown is still considered to be the primary and ultimate owner of all ‘estates’ • the presumption is that if you die without heirs, your ‘estate’ will ‘revert’ to the crown • There is no way to obtain legal rights to land except by following this fiction, as NO LEGAL GRANT OF LAND PREDATES 1066 AND WILLIAM Towards inheritance and substitution:  Now when you buy land your holding it from the crown, not the previous land owner – we all own it from the monarch – so not pyramid – one monarch at top who holds it in theory and then the rest of us  The Statute Quia Emptores 1215 – enshrines substitution?  ‘It is the Statute Quia Emptores which – quite unnoticed, still regulates every transfer of land in fee simple today. Every such conveyance is merely a process of substitution of the purchaser in the shoes of the vendor, and the effect of the Statute during the last seven centuries has tended towards a gradual levelling of the feudal pyramid so that all tenants in fee simple today are presumed (in the absence of contrary evidence) to hold directly of the Crown as ‘tenants in chief’’ (Kevin Gray)

This was a problem for Eddie Mabo:  If you are living on land not transferable onto feudal system – then you don’t have recognisable land rights – goes right back to Locke’s ideas  You’re more or less in a state of nature and don’t have rights What about cultures that are not hierarchical? How does this fit into this? Nomadic cultures? How much has this formed part of our thinking? This story of Anglo-Saxon England matters – one system totally replaced with another (not 100% accurate) but it is the story enshrined in land law – after you are only holding land from the crown – this is the image the common law exports wherever you may find it What do we recognise as land ownership or property ownership? We don’t always see people cultivating land – owners in a difference sense? Title   

Concept of title Proof of title The economics of title

Ownership & Possession  Classically the distinction is distinction between state of law (ownership – existence of a right to exercise mastery over something) and state of fact (possession – physical control or mastery e.g. book – holding it/having custody of it – being physically in control of land)  This distinction is a little too quick – possession (state of fact) has legal consequences – important factor in establishing ownership Possession (as a factual mastery coupled with intention – animus possidendi:

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State of physical control and a state of intention “To gain possession, a man must stand in a certain physical relation to the object and to the rest of the world, am must have a certain intent” – O W Holmes Not only a matter of having control, but intention to control it to the exclusion of others Possession controlled by social conventions/norms – so your possession of an object is generally respected by others – so property isn’t just a matter of what legislation says, it’s also a matter of social laws

Possession not the same as title!  To have actual apperant power of preventing interference with a thing is different, and has been different…reparation in some form (see slide)  One thing to be treated by others as having control of something, entirely different thing for law to say you have that right Seisin and publicity:  Instead of possession old English law used word ‘sesisn’ – seize something  Legal Historian Maitland: sesisn is effective to the extent that it is public/visible and respected by others – back in the day if someone wanted to prove they were the owner was to summon neighbours who would give evidence that they had seen you “taking esplees” – means taking the crops after you had cultivated them Ownership  System of ownership as opposed to possession is a major social achievement  “major intellectual achievement” – Honore Ownership v Title:  Title = a document that indicates your possession  Title = status indicators – documents that prove something is yours even when you are not with it (Searle)  Ownership is a right to that thing even when you are separated from it  Building a structure of buying and selling – land could not be an economic commodity unless we had titles (Searle) – titles prove your ownership to potential buyer/reassure them you are the true owner – no land market without titles Proof of title:  What is title  Nemo dat quod non habet – you can’t give what you don’t have – this principle underlines the way in which you prove in English law that you own land – the principle seems bizarre, infinite regress –= you proof that you acquired from someone who had good title, by proofing that person had good title as they brought it from someone who had good title ….you go back to what is a good root of title = absolutely unassailable proof – might take you all the way back to feudal times  In practise by 18/19c it’s almost impossible to go that far – instead make do with documents which are in practise true or accurate but may turn out to have fundamental flaws  Too far back = probate …only the devil knows

Adverse Possession: (squatting)  Limitations of actions = gave a certain period of time within which to assert a claim of land/property right, once expired, you lose completely your ownership currently 12 ys  Two basic criteria: intention to possess and factual mastery  Relatively of title: the question of successive squatters – English law starts from premise no one is absolute owner of this land – simply because of nature of relationship between possession and ownership o E.g. you own land, you disappear for couple of years and in absence Squatter A moves into your land, redecorates, settles in – Squatter A goes on holiday, Squatter B breaks in, changes lock, settles in  who owns the land at this point? o Ownership remains with you but if squatter A comes back he can go to court – this is the principle of relatively of title – English court doesn’t ask who is the true owner, asks who of the two people has the better right? Person who has better right is person who has been in possession for longest o Of course, true owner can throw out A but until then squatter who has been there for the longest time has the better claim o When someone breaks into your land, clock starts ticking, they start building up rights? What does squatter A need to do to take over your land? 1. Possession has to be adverse to true owner, meaning you cannot succeed if you have permission to own the land/ legal right to be on the land e.g. if you’re a tenant, no way you acquire land through adverse possession 2. You have to satisfy two criteria: (a) intention to possess and (b) factual mastery Factual Possession:  Dealing with land in question as an occupying owner might have been expected to deal with it – Macfarlane  Cultivating it, enhancing it, occupying it  Establish possession by acting as if you are the owner and it is your property Then have to prove animus possidendi – intention:  Have to have intention to claim the land as your own  How? By an act that shows you want to exclude all others from land e.g. change locks, put up fence If there is an agent who checks up, so long as they don’t enforce anything against you, after 12 years the land becomes yours – this happened a lot  The Land Registration Act 2002 – made it much harder, they contact owner and tell them what you’re doing & give them every chance to oppose registering your name on their land Adverse possession – shows you relationship of ownership & possession – ownership is never absolute! (argument of efficiency – why should people own it if they don’t use it) Economic function of property – Property & Efficiency

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Adam Smith – private property doesn’t work as an abstract notion, works only to the extent that we have titles, documents we can assert and exchange with

Bentham – Property & utility:  Object of law - Maximise pleasure, reduce pain  Calculus of happiness – ascribe point to thing that give you pleasure/pain  Property of itself = source of pleasure/happiness as it allows you the security to plan for the future  Given secure property rights you can invest, protect your family, continue to enjoy a certain style of life - thing that causes us the most unhappiness is our anxiety of the future – if you can master this = great pleasure  It is what Marx called the utopia of ‘the modern English shopkeeper’ Bentham on property:  Property as ‘the basis of expectations’ – foundation of secure expectations  Natural expectations – based on natural regularities e.g. sun will rise tomorrow  and artificial expectations – created by social institutions  On one side – if you’re a criminal you should expect to be punished – artificial expectation secured by social institution  In case of property – law should guarantee your property rights against all others – what does this mean? 1. Laws should be comprehensible to everybody (hated lawyers – they overcomplicate laws to make more money) 2. They should be absolutely and rigours enforced - so legal procedure had to be clear and as simple as possible to operate/ free from bias of judges  Security and equality “Law alone is able to create a fixed and durable possession which merits the name property” “Property is nothing but a basis of expectation, the expectation deriving certain advantages from a thing which we are said to possess”  For Bentham everyone should have a paper title to their land – clear and that can be asserted and defended in court  It should not depend on witnesses/neighbours saying on how land was held  This resonates much greater with how lawyers actually understand it – amplifies and makes sense of something that is in Locke, but not so clear  View of documents emphasises the importance of title in a way which is = v contemporary  Titles enable land to be a commodity – English law achieved this by implementing law = land registration  Now experiencing expansion of land title commodity relationship – title fundamental for economic development See this in colonialism = The Swynnerton Plan (East Africa) 1954  

African farmer can be provided with such security of tenure through indefeasible title as will encourage him to invest his labour With titles you have access to credit, can mortgage your land

Hernando de Soto – Economist – done most to promote argument that absence of titles is a principle break on development of nations:  Gives example of dog barking when you approach land, when you walk back dog stops barking – look dog knows the boundary lines but law does not  We have to take dog knowledge and turn it into title  Crucial point: society cannot work – titles generate investments, documents allow people to be identified and helped  Fundamental part of economic infrastructure  This was adopted by World Bank and became basis of international efforts to create land registry  Happened in South America - Given rise to huge backlash against vision of people informal ways of doing things...