Study notes on land law first semester, Assignments of Land Law

Download Study notes on land law first semester and more Assignments Land Law in PDF only on Docsity! © ABU B.M. KAMARA (LEGAL BAKISH) HONS 1 NOTE: FIRST SEMESTER ENGLISH LAND LAW INTRODUCTION TO ENGLISH LAND LAW EXPLANATION: Generally, English Land Law is an historic module. Because of its history, it makes the concepts very old because it has passed through of its historic moment that marks the very subject itself. In every country the thing that marks its dimension, geographical location and even that count for the population is the land scale. That is why time past you had people talking about Territorial Integrity. The territorial integrity falls within the four corners of the land that contain your country or your chiefdom or your district. That is why if you look at even the entire country it is being limited into provinces, chiefdoms, wards or constituencies. It has to do with the land scale. It’s not the number of people. It’s the extent to which this particular ward is different from the other ward or this particular chiefdom is different from the other chiefdom or this particular province is different from another province. It’s not about the population. It’s about the extent to which the land goes that determines where the boundary is. That is why each and everywhere or each and every person living any part of the world, land is very important. You heard about the phrase “Quicquid plantanur solo, solo cedit” which means that whatever is attached to the soil becomes part of it and that he who owns the land owns that is beneath and that which is above, but even with that there is a limitation. For those who do geography, you have the atmosphere, ecosphere and so many spheres. Even at the international aviation laws, there are certain spaces in the high space which is international. That does not fall within the jurisdiction of Sierra Leone. It is an international airspace; so also beneath the land. There is also a limit of what you own notwithstanding the theory “Quicquid plantanur solo, solo cedit” and overall the government has an overriding authority over the ownership of land (The compulsory acquisition and compensation of land CAP 116 of the laws of Sierra Leone.). This legislation gives the government the authority to acquire land on the condition that they pay compensation to the owners and they will explain the reason that, it is for the use and befit of the public or citizens. So, much as there is individual ownership of land both in the western Area and the provinces, the government has an absolute authority. They can come for example and say Mr. Bakarr; we want your land because we want to build a community center. And interestingly we have so many cases wherein it’s the government that is acquiring, that computes the compensation that they are going to give you though that is not what the legislation says but who dare you make a challenge. That is just to show you that even though you are the owner of the land, your government can draw explanation that it is for the public use, and they acquire it. NOTE: Mr. Sahid Sesay’s lecture on English Land Law. Typed, compiled and further research is made by ABU B.M. KAMARA (LEGAL BAKISH). Typographical and other errors are inevitable. Thus, you are advised to consult other authorities! Page 1 © ABU B.M. KAMARA (LEGAL BAKISH) In land, you have so many interests but principally your interest in land can either be LEGAL or EQUITABLE. If you are the owner of the land you are called the Fee Simple owner. The Landlord who owns the house has a legal interest in the house. The tenant or to whom the land is let has an equitable interest in the land. So, let’s say for example you have ten years tenure on the premises and the landlord sold the land to another person knowingly that there is a subsisting lease without disclosing it to the purchaser although it is presumed that you the buyer needs to aware; or again when somebody dies and that person’s son for example takes the house book which itself by taking somebody else’s title deed without his consent is an offence under the larceny Act. If you take somebody’s title deeds without his consent is something that you can be jailed for. so the mere fact that somebody dies and his eldest wife or son went and took the house book and kept it does not make him the owner of the property because if you look at the house book, his name is not there and he cannot tamper with it because there is one copy with the person who is the owner and there is another copy in the office of the Administrator and Registrar General. In the first scenario above, the landlord who sold the property to “C’” without disclosing to “C” that he had let that particular property to “B” and there is a subsisting lease. “C” did not take the necessary precautions to ask the relevant questions whether by a solicitor or did not investigate whether there are encumbrances (nuisances or burdens). That is why if you look at a typical conveyance it says that the vendor conveys the land to the purchaser absolute in possession free from all encumbrances whether equitable or legal; which means the person who is signing the conveyance has the authority to sell; the property is his. If he is selling as an attorney of the owner, he is principally the owner of the property. Let’s assume that is true but he did not disclose automatically that he has sold the land with an encumbrances because there is a subsisting lease which is an equitable interest in the property. The law says if you sold land to “C” knowing full well that there is a subsisting lease between you and “B”, “GC” is deemed to have bought that land subject to the equitable interest on the property. So which means let’s say she and her have a problem she therefore decided to buy his house knowing very well that she is occupying the house as a tenant of him; so all object of her buying the house is to disgrace her; she got a conveyance, the next time he gets a lawyer to write her to quit. So she herself will go toa solicitor to say for example I’m not disputing that you are not the owner of the property but whether you are or you are not, | here to inform you that there is subsisting lease between myself and the landlord and the lease is registered in the records book of lease. A prudent solicitor would now go to the Registrar General’s office to get the copy of the registered lease and look at the tenure which is the time within which you are to occupy the land. By discovering the lease and realized that there is a ten year tenure granted to her and she has only done two years; so which means she bought that property subject to the NOTE: Mr. Sahid Sesay’s lecture on English Land Law. Typed, compiled and further research is made by ABU B.M. KAMARA (LEGAL BAKISH). Typographical and other errors are inevitable. Thus, you are advised to consult other authorities! Page 2 © ABU B.M. KAMARA (LEGAL BAKISH) PART 1 CONTRACTS AND CONVEYANCE CONTRACTS: A contract to sell or make any other disposition of land is made in the same way as any other contract. As soon as there is an agreement of valuable consideration between the parties on the essential terms, there is automatically a contract between the parties and such a contract is aid to have come into existence whether the agreement leading to that contract was reached orally or by writing. However, although a valid contract between the parties relating the land may be made orally it will generally be unenforceable by the most important method of enforcing contract namely, by an action in court, unless either of the two situations arises: (a) That the agreements leading to the contract are written or (b) The prerequisite as to invoking the principles of equity have been satisfied to wit part performance. (Explanation: Ina nutshell, action touching and concerning land can both be brought in the common law and in the court of Equity. If it is brought in the court of equity, you are invoking the equitable principle of part performance or specific performance approach) Therefore, when considering whether an agreement relating to land that be enforced by action, there must be two important considerations (Explanation: This means that before ever you think about of taking an action touching and concerning land wherever the land is situated, two things must exist.): (a) Whether there is a contract at all; and (b) If so, whether that contract is enforceable by action THE EXISTENCE OF A CONTRACT (When can you say a contract exist or when can you say the parties have arrived at a contract, they have reached an agreement or they have reached a contract?) There must be a final and complete agreement between the parties on the essential terms of a contract; namely: (i) The parties (ii) The properties (iii) The consideration and (iv) In the case of a lease which is not a legal interest but an equitable interest in land, the date of commencement and the period for the lease. NOTE: Mr. Sahid Sesay’s lecture on English Land Law. Typed, compiled and further research is made by ABU B.M. KAMARA (LEGAL BAKISH). Typographical and other errors are inevitable. Thus, you are advised to consult other authorities! Page 5 © ABU B.M. KAMARA (LEGAL BAKISH) (Explanation: The question of a date in a document has a multifunctional impact on the document itself, and when you come to the date as to the date you bought, it tells you about priority. The date is very important because tenure is said to have expired at the adversary of its commencement. For example you have sold. She bought and he bought. The question is, of the three people who have right? The date comes in. If he sold with three different conveyances and all the conveyances were registered, the court would have to look at the material time the land was sold to you, was there land left to have sold to her? If the answer is no, then she is out. If by the time the land was sold to her after it had already been sold to me there was half left, she owns the half. That is why when it comes to lease; you have to know when the lease starts and when it ends. If it isa year lease and let us say the landlord wants to deprive the tenant of a further tenure on the property, the landlord is under law bound to serve on him a six months notice; but there is a common mistake that the tenants generally do make. That is to say the period, within which a notice is given to you, you should not pay rent. Disagree with any sol itor who would have advised you that way because the question is when notice was served on you, where were you sleeping? Even if you vacate the premises, if you have not handed over the keys to the owner of the house you are deemed in law to be constructively in occupation instead of actual occupation when you are sitting on the premises. A simple scenario for instance you have a three years lease, but for some strange reasons the landlord raises his rent. There is no written document which says this is the percentage within which rent should be increased. He took upon himself to exercise his discretion whether judiciously or not and you are paying rent yearly. The law says he should serve on you six month notice and that six month notice should be six calendar month which means it should not read for example from the third of January to the second of January, that is not a calendar month in the law. In law when you say a month it means a calendar month which means from the 1° of January to the 31° of January; but there is nothing in law saying because the notice has been served on you, you should not pay when you are in occupation of the premises; and if even before the expiration of the six month you found an alternative accommodation and you moved out, the mere fact that the premises is empty does not mean that you have vacated the premises until you go to the landlord and handover the keys then you are deemed to have vacated the premises. Again, the landlord has let you his house and you are in occupation; but he has daughter or son who thinks his father is the only owner of a property in the country, he would bashes to your sitting room, your kitchen etc, the law does not permit that because there is a covenant on landlord to ensure that the tenant should enjoy what we called in law ‘Quiet and undisturbed possession of the property’. Assuming also you are paying rent, you are keeping the property in tenantable condition and because the landlord thinks he is the owner of the house just bashes the door and entered your premises, you have the right to stop him and NOTE: Mr. Sahid Sesay’s lecture on English Land Law. Typed, compiled and further research is made by ABU B.M. KAMARA (LEGAL BAKISH). Typographical and other errors are inevitable. Thus, you are advised to consult other authorities! Page 6 © ABU B.M. KAMARA (LEGAL BAKISH) send him out; and in tort, it is a legitimate defence in trespassing activities for the owner or the person in occupation of the property to use a reasonable force to eject the trespasser. If the landlord refuses to go out, you can bring an action against him for trespassing even though it is his property. That is why in a typical lease agreement there is always a covenant that if the landlord wishes to inspect the premises, he should serve at least on the tenant forty eight or seventy two hours notice to inform him that he will be coming between such and such a time for the purpose of inspecting the premises. Take the argument further; if the landlord has served the forty eight or seventy two hours notice on the tenant for inspection of his demised property (property that is let out) and the time is due, you have the responsibility to open all the doors because he is coming to inspect his properly. If the landlord discovers the walls are cracked, the windows are falling apart or the place is not maintained; there are certain damages that are structural damages that are called_ inland law “Natural ware and tare”, but if the damage on the premises is such that it is due to the negligence of the tenant, the law says under the law of Property Act of 1925, you will serve the tenant 21 days notice of damage or whatever breach whether written or not_with a view him an opportunity to re, THE MEANING OF THE TERM “REAL PROPERTY” (Explanation: when we talk about real property we mean the land, that interest, the parties and all other collateral issues touching and concerning the land. There is a distinction; you have ‘Realty and personalty’. Realty deals with land immovable. Personalty deals with your cars, you shoes, your account in the Bank, shares in the Bank, the tenure you have in the land etc. these are all personalties; but when you talk about Real property you talk about ‘Realty’ and it means the house, the land, things that you cannot move.) The term “Real Property” has a historical beginning. In early days during the period of the early law, property was deemed “Real” if the court would restore a disposes owner to the land itself otherwise called the “Res” and not giving him compensation for his dispossession of his land. (Explanation: what we have said is this; land was thought to be real by the early courts if the court can make an order for the man who had been driven out of his land or who had been deprived of the use of the land can be taken back to his land and say look at your land. Then it is called “Real”; and not by giving him compensation. It does not keep fit with the phrase “Real” because the whole object of the word “Real” is that the man who had been disposed must have the right to be put again in possession of the property. That is why it is called “Res”) The synonym of the word “Res” which is a Latin phrase is a thing or be the subject matter. For example if X forcibly evicted Y from Y’s Freehold land, Y could bring a Real action against X for NOTE: Mr. Sahid Sesay’s lecture on English Land Law. Typed, compiled and further research is made by ABU B.M. KAMARA (LEGAL BAKISH). Typographical and other errors are inevitable. Thus, you are advised to consult other authorities! Page 7 © ABU B.M. KAMARA (LEGAL BAKISH) but it was a kind of transfer that was subject to a condition. It was from this historical background that the question of Tenant and Landlord took its root; because when a landlord let out his property to the tenant, that property which was let to him was not an out-and-out transfer of the property to him. All that he has in the property was an equitable interest. The legal interest is always vested in the owner. That was exactly the position in England at the time. It is from those obligations that the tenants were performing for them to continue to hold the land; it’s where the question of covenant on the tenant particularly derives its historical root. For example you will see in the English tenure of old, there is a tenure which says you should supply the king with certain men for military services, when crossing the rivers you should hold up your hands etc. These obligations you should perform.) For example if a portion of court-right at the time forming part of the land in England was granted to the law society on a condition that the law society should provide fifty ladies at the end of every academicals to dance for the king, it is settled at that time in English history that the law society would only continue to benefit on that land upon the fulfillment of the condition precedent to the granting of the land to them, it is on the law society to satisfy that condition so that they can continue to occupy and enjoy that land failing which, they will be dispossessed. That is where Tenancy and Landlord relationship starts and its covenant. Such relationships between the Lord and the Tenant were predicated on certain pre conditions which generally in many cases include the performance of services. In relation to services that are to be performed, it has been historically proven that there has been only one set of services to be rendered; and that is the provision of armed horsemen for battle which service became known in land law as the KNIGHT SERVICE. There were also other set of services. There is also what was called the GRAND SERGEANTY which include the performance of some honorable service for the king in person. Each of this set of services was known as a TENURE. The reason being, the services performed to the satisfaction of the Lord clearly show how the particular piece of land was held. That is why in Land law the English meaning of the word ‘Tenure’ is “To hold”. But there is also another element that is important in the relationship between the Lord and the Tenant; and that is the time, the duration, the extent within which you hold land. It is fundamental. Land might be granted for life. That is to say, a devise of land can be made to a tenant by the Lord or as long as that tenant leaves. It is from that scenario that the concept of a LIFE INTEREST emerges. That is to say if a land is granted to a tenant for life, his interest in the land can only subsist for as long as he leaved. That is to say, he cannot in his life time grant any interest in that land to another person that will extend beyond his life. Briefly, a life interest holder of land can only grant an interest to another person which interest can either coincide with his date of death or before he died. That is why a life interest holder cannot sell or convey because a conveyance is a transfer of an absolute interest in land to the purchaser. The life interest holder cannot because NOTE: Mr. Sahid Sesay’s lecture on English Land Law. Typed, compiled and further research is made by ABU B.M. KAMARA (LEGAL BAKISH). Typographical and other errors are inevitable. Thus, you are advised to consult other authorities! Page 10 © ABU B.M. KAMARA (LEGAL BAKISH) all he has in the land is an interest that will subsist for the period of his life; because the moment he dies his interest seizes. It can also be granted IN TAIL. That is for as long as the tenant or any of his descendants leaved. That is what is called a tenant IN TAIL; for as long as the person to whom the tenant is granted or his descendant leaved; or in FEE SIMPLE; that is for as long as the tenant or any of his heirs whether descendant or not were alive. Each of this length of tenancy in land law whether it is for life, whether it is in tail or a Fee Simple, they are collectively known in the land law as ESTATE and the word estate is derived from the English word ‘Status’. By analogy therefore, the crown or the king might grant land to “A” in Fee Simple. In other words, he might grant an Estate to “A” in Fee Simple and “A” in turn would grant an estate to “B” for life, but it must be fundamentally known that the ownership of the land remained in the crown. The above scenario is illustrating of the point that in the days of old in England, a man might own one or more kinds of estate in the land that notwithstanding he is not the owner of the land. (Explanation: The scenario that has given is illustrative of the last point. “A” has been granted a Fee Simple estate by the King. Out of his Fee Simple Estate that he has, he has granted a life; so which means one of the estates that subsume (include) in the Fee Simple estate is an estate for life. So he alone has a Fee Simple estate and he has the estate for life, but that does not make him the owner of the land. The ownership always remains with the crown. That is why it was concluded by saying no matter the various kind of estate which a tenant might own in the land that does not qualify him to be described as the owner of the land because in English history of the time the ownership of the land is always vestet the crown. There are two basic doctrines in land law. These doctrines are the doctrines of Tenures and the doctrine of Estate. Under the doctrine of tenures, all land is held of the crown either directly or indirectly on one or off the other various tenures under which land was held in England. The doctrine of estate is simply saying that a subject cannot hold land in England but merely own an estate in the land which gives him the authority to hold the land for some period of time. In short therefore, tenures deals with how the land is held while estate begs the question for how long? NOTE: Mr. Sahid Sesay’s lecture on English Land Law. Typed, compiled and further research is made by ABU B.M. KAMARA (LEGAL BAKISH). Typographical and other errors are inevitable. Thus, you are advised to consult other authorities! Page 11 © ABU B.M. KAMARA (LEGAL BAKISH) TENURES The disappearance of the social organization based on land holding in return for services had led over the centuries to extensive changes in the rules of tenure. Suffice it therefore to say with the passage of time and the development of land law, some of the old tenures which were hitherto very important became vanished with the passage of time. Some of these tenures are: (1) Tenures in Chivalry (Military Tenures) (2) Tenures in Socage and (3) Spiritual Tenures .....to make note on them In modern land matters relationships, various kinds of tenures are now subsisting in place of the tenures that were in existence in the days of old. But of all the old tenures which came into existence after the Norman’s conquest of England in 1066, the only tenure that survives up to the present days is the tenure in SOCAGE which has now crystallized itself to what is now known as the FREEHOLD. As a consequence of the development in land law, the following tenures are now applicable (1) Freehold (2) Leasehold and (3) Crown hold ESTATE The word estate in land law simply means the interest in land of a defined duration. Estates are divided into two classes; these are (1) Freehold Estate and (2) Estate less than a freehold. In land law, there are three estates of Freehold. Namely: (1) The Fee Simple (2) The Fee Tail, and (3) The Life Estate Historically, the Fee Simple and the Life Estate have always been in existence in English Land Law. It was not until by a statute in 1285 by the English parliament that the Fee Tail Estate was introduced. THE FEE SIMPLE= originally, this was an estate that endured for as long as the original tenant or any of his HEIRS survived. “Heirs” in law comprises of blood relations which but by the Act of NOTE: Mr. Sahid Sesay’s lecture on English Land Law. Typed, compiled and further research is made by ABU B.M. KAMARA (LEGAL BAKISH). Typographical and other errors are inevitable. Thus, you are advised to consult other authorities! Page 12 © ABU B.M. KAMARA (LEGAL BAKISH) estate; the lack of protection given to them by the courts and the early doubt as to whether terms for longer than 40 years were valid, placed leaseholders in the position of inferiority from which they never recovered. Although by the turn of the sixteen century terms of years had become recognized as legal estate and were duly protected, yet they ranked below the three estates of freehold. Leaseholders were regarded generally as holding their lands in the name of their lords which stand to reason that the possession of the leasehold tenant is regarded as the possession of the lord. A FIX TERM OF CERTAIN DURATION The tenant may hold the land for a fix term of certain duration, as under a lease for 99 years. The possibility of the term being extended or curtailed under some provision to that effect in the lease does not affect the basic concept of the kind of lease that was granted to the tenant which is a tenancy for a term certain. (Explanation: the point we are trying to say is this; in the lease or the tenural relationships that are prevalent today is that, you have the tenancy for a term certain, you have a yearly tenancy, you have monthly tenancy, you have a quarter- yearly tenancy, you have a half-yearly tenancy and even have a weekly tenancy depending on the various arrangement and agreements that the landlord and the tenant agreed upon. This is inclusive of the rent reserve for the premises. The premise that is let out is called in the demise premises. For example let us assumed it is a four-story building. The landlord decides to let out the third floor to B. He (the landlord) decided to occupy the second floor and use it as an office. The first floor is vacant. The fourth floor is where he lived with his family. The premises that were let out are called the demise premises. That is why when preparing a lease; you should be specific as to the particular property that is let out. In some cases you even go into describing the nature of the property that is let out. For example in the scenario above let us say the third floor contains about four bedrooms inclusive of a master bedroom, three toilets, one kitchen, one veranda and whatever facility. The law says for reason of certainty, you should make sure that you identify especially where the demise premises is part of a whole building, so that the tenant would know exactly the portion of the premises he is going to occupy. Because it is very possible that on the same premises three rooms are let out to B and one room is let out to C. So in so far as that entire third floor is concerned, the totality of it was not let out to B; it was just a portion of that third flood of those premises. So you have to specify the portion if it is a building comprising of various floors, the particular floor and a component of that floor that is let out to the particular tenant. So that when you are seeking at the end of the day repossession of your property either by reason of a breach of a covenant in the lease, you will not use that breach by A to even repossess against C because C and B are occupying the same premises. So to paraphrase the explanation, in preparing lease, let us say the term that is granted to B in the lease is about 10 years certain commencing from the 1* of January 2010 and ending on the 31* of December NOTE: Mr. Sahid Sesay’s lecture on English Land Law. Typed, compiled and further research is made by ABU B.M. KAMARA (LEGAL BAKISH). Typographical and other errors are inevitable. Thus, you are advised to consult other authorities! Page 15 © ABU B.M. KAMARA (LEGAL BAKISH) 2020. When preparing a lease agreement between the landlord and B, you should be specific in your agreement to state what is the component of that portion of the building was let out to B. This especially so if there is another family occupying the same property on the same floor which also has another relationship with the landlord. So in this circumstance, you will say for example “In consideration of the rent herein reserved on the part of the tenant and all other matters they might have agreed, the landlord hereby demises or let out to B all that portion of premises that was let to B “for a term of 10 years certain paying therefore an annual rent of $80000”. So there are various elements that are subsumed in this graphic relationship we have demonstrated. One, it was not the whole of the premises. If recites in your lease agreement that the landlord let out to the tenant all those premises, it means it is the entire premises that was let if the landlord signs that agreement and the tenant knew that that was not what he contracted for but the landlord dies, the other tenants in that premise would be deemed to be subtenant to B. because it was the entire property that was let out to him. So that is why you should be careful and this is one reason if you look at a typical lease agreement, it tells you the lease agreement in respect of property that is to be let out to tenant is usually prepared by the Solicitor for the owner which is exceptional as to conveyance. So you would always be under an obligation to make clear in the agreement the property that is let out, the term that was created, the rent that was reserved and the responsibilities on either parties to the agreement. So if you look at the scenario we have given, the number of years that was granted to B by A were for a number of 10 years certain which means in law, if a tenant is granted a term certain (15t Jan to 315t Dec), the implication in law is that, at the expiration of the term granted to you, you are required in law to deliver vacant possession of the premises. A notice to quit is not applicable to a relationship between a landlord and a tenant for aterm certain. The tenure would come to an end by what we describe in the land law by a “Fluxion of time”) A lease for 99 years to X by A falls within the category of a fix term of certain duration more particularly so if X has the gift of God to live up to the 99 years that was granted. (Explanation: what we are trying to say is that, the mere fact that 99 years has been granted in a lease agreement does not make it a lease for a life time. It is still a lease for a term certain of duration because in the instrument creating the relationship, it is for a fix term of certain duration. If he lives up to that time, fine. If he dies, his heirs or personal representatives have a right to continue with the lease. That is why when you look at the typical lease agreement it says “Herein after call the tenant, which expression shall include his heirs assigns of persons, his personal representatives of persons taking or deriving title through or other him”). This means even if he dies, that lease should still subsist once there is NOTE: Mr. Sahid Sesay’s lecture on English Land Law. Typed, compiled and further research is made by ABU B.M. KAMARA (LEGAL BAKISH). Typographical and other errors are inevitable. Thus, you are advised to consult other authorities! Page 16 © ABU B.M. KAMARA (LEGAL BAKISH) no breach of a covenant on either part, and the lease should survive up to the 99 years that is granted if there is no breach.) A TERM CERTAIN WITH NO FIX DURATION (Periodic Tenancies) (Explanation: let us say for example A and B contracted for a particular land to be leased to A. the contract says “I am going to let you my land for one year”; without any much to say or word to say it was for a term certain. Now, as far as the period for which the lease is to be given, it is for a term certain of a one year but it has not got fix duration. Let’s say he let out his land to B from year to year; B cannot say the property was let out to him for one year; he cannot by the same example say that the property he was suppose to occupy is for ten years, but what he knows is that the tenural relationship between him and A is a year to year. So which means if there is going to be a determination of that relationship, it would have to be preceded by the requisite notice provided for in the law. So in that situation, there is a term certain but the duration of that term is not fixed as compare to the situation where in, the A and the B agreed that the lease is going to be for a period of years. It is a term certain and the duration is contained in it. But if he just says | am letting you my property as a yearly tenant, the certainty is the kind of tenure that B has taken under the contract but the uncertainty is: What is the duration? Because one year might relapse; he pays rent and was not served with notice, and when it came to another year a notice was served on him. He cannot say this was the time we agreed on the lease. So you can see that there is a certainty as to the tenure that was granted to him but the duration is not clear in the lease agreement as oppose to the previous arrangement that they had which was quiet clear and unequivocal between them that the lease was for a period of 99 years. So if there is no breach on the part of the tenant of any of the covenant or obligations on the agreement, he knows or certain that he has a lease for a period of 99 years, but unlike him in the second arrangement, all he knows is that he is a yearly tenant. So the tenure is clear but the duration is unclear. That is the contrast to the term certain without a fix duration.) A lease of land to B from year to year by A with no provision to state as to its duration has the characteristic of continuing indefinitely unless either the landlord or the tenant takes some steps to determine it but it is the position of the law that either of the party can give a six months notice to determine it at the end of a year of the tenancy and thus ensure its determination at a fix date. (Explanation: There is a catch in what we have said. Now, let’s say the year to year tenancy that was granted commences from the 1° of January 2015. If it is a year to year tenure, the presumption under the law is that this year should end on the 31 NOTE: Mr. Sahid Sesay’s lecture on English Land Law. Typed, compiled and further research is made by ABU B.M. KAMARA (LEGAL BAKISH). Typographical and other errors are inevitable. Thus, you are advised to consult other authorities! Page 17 © ABU B.M. KAMARA (LEGAL BAKISH) One distinction between freeholders and owners of estates less than freehold was that only a freeholder could carry Seisin with it. It has been generally accepted that there has been no satisfactory definition of Seisin in land law. But the word goes with the fundamental responsibility on tutors of land law to inform or educate learners of the law that the word Seisin in land law is different from the word “seizing” that is why in other to draw a distinction clear in the minds of students between “Seisin” and “Seizing”, is the pronunciation of the word “Seisin” itself. This is because the general and acceptable pronunciation of Seisin is “Seizing”. To medieval lawyers (Lawyers of old) the word Seisin is considered to be the opposite of the word seizing. That is to say, where as “Seizing” has the implication of violence, “Seisin” is the very opposite to violence meaning in law: peace and quiet. A man who was put in Seisin of land was considered in law to have been “sat” there and continues to “sit” there. So Seisin in land law denotes quiet possession of land but quiet possession of a particular kind. ESTATE OF FREEHOLD (Expl anation: we shall be looking at what it means when we say somebody has a freehold and when we say somebody has not less than a freehold. It is one of the fundamental concepts in English Land Law. So it is very important that you understand the concept because in the co temporally days when you want to sell land it would be obvious and clear from the face of the document that you will present to the purchaser which he would have to investigate that you must have a freehold. It applicable to state lands when state lands are being granted to individuals for leases. There are conditions attached to the lease (payment of the grant rent etc.) and if you want to sublet a part possession of the land, you should notify the Ministry of land and after you have complied with what is contained in the letter of offer, then you can apply for the freehold; because as at the time the land was granted to you upon the fulfillment of certain conditions, all you had was a leasehold, which means that the interest that you had in the land at that stage is an equitable interest. But when the conveyance would have executed to you and signed by the Minister of Lands or somebody duly authorized in that behalf, then you acquire what is called a freehold of the land. So if you are a leaseholder of a land, you cannot sell because you cannot pass the Fee Simple Estate to the purchaser, and the Fee Simple Estate is always vested in the Freeholder (The person who owns the land). There are two main points to be considered in an attempt at understanding the concept Estate of Freehold. These are: The words required to create each of the Estates; and the characteristics of the estate created. (Explanation: This means we have to look at the words that create the estate; and the words that we gather from the document embody in the contract. If it is such that it can be construed from the document that a freehold estate is created, then that is what is created in the document; because the words in the document or in the negotiations between the parties automatically tells a kind of estate that is granted to NOTE: Mr. Sahid Sesay’s lecture on English Land Law. Typed, compiled and further research is made by ABU B.M. KAMARA (LEGAL BAKISH). Typographical and other errors are inevitable. Thus, you are advised to consult other authorities! Page 20 © ABU B.M. KAMARA (LEGAL BAKISH) the other party. So it has to be construed from the document that this person has the right to grant what he intends granting in the document and secondly, this was the kind of estate he agreed to grant to the grantee. So in attempting at understanding the words that constitute the intention of the parties to create the particular estate can be inferred; there are certain doctrines which we need to understand; and one such doctrine which is important and akin to estate of freehold is WORDS OF LIMITATION.) WORDS OF LIMITATION “Words of Limitation” is the phrase use to describe the words which limit (i.e. delimit or mark out) the estate to be taken by the grantee. By analogy, a conveyance to “A” in Fee Simple”. The words “in Fee Simple” are words of Limitation. They are so because they show what estate “A” is to have. (It is important to note that acquiring interest in property can be done in many ways. It can be by a lease; it can be by a conveyance; it can be by a deed inter Vivos; it can be in the will). In a nutshell, acquiring interest in land is evidenced in document. If it is a will, you make a devise in your will which takes effect upon the death of the testator. A DEED INTER VIVOS (Explanation: When you talk about a deed Inter Vivos it is a document that is executed between people during their life time. “Inter Vivos” means in his life time; it automatically transfers title to the person who is the donee like a deed of gift which is a deed inter Vivos because the interest in land is automatically transferred to the donee immediately the donor appended his signature.) The rule at common law was that a freehold estate of inheritance could be created by a conveyance (deed) inter Vivos, which means a transfer of land between living persons and this is normally ascertained by the use of the words “Heirs”. (Explanation: If you look at a typical conveyance you will see what they say “To have and to hold unto and to the purchaser in Fee Simple absolute possession. The vendor hereby grants and convey unto and to the purchaser, his heirs and assigns.”) A Life Estate could be created without using these words (that is the word “Heirs”), but a Fee Simple or Fee Tail could not. (Explanation: You do not include that if you are creating a Life Estate because the interests always come at an end upon the death of the holder.). It is important to note that no other words include for example like “relatives”, “issue”, “descendant”, “assigns”, “forever” in Fee Simple. Heirs were the sacred words of limitation and had a magic in Land Law which no other word would possess. (Explanation: So you see the functionality of the word “Heirs” when it is used in document especially in Deed Inter Vivos; NOTE: Mr. Sahid Sesay’s lecture on English Land Law. Typed, compiled and further research is made by ABU B.M. KAMARA (LEGAL BAKISH). Typographical and other errors are inevitable. Thus, you are advised to consult other authorities! Page 21 © ABU B.M. KAMARA (LEGAL BAKISH) because if you look at Life Estate Holder, it is also in the life of the living persons, but because the tenure become to an end at the death of the holder, you don’t need to use the word “Heirs” because it is (Life Estate) not an estate of inheritance; because upon the death of the original grantee the estate is at an end.) WORDS OF LIMITATION UNDER WILLS (Expl anation: Generally, the preparation of a will is based on the provisions of the WILLS ACT of 1837. There are certain conditions that are contingent upon which a will can be declared to be valid or invalid such as the signature of the testator, the witnesses to the will; S. 9 etc. we did explain a situation where in the very lucky wife on to whom everything was devised was taking to the solicitor to sign. So, a will is a sacred instrument for which there is statute regulating its preparation and its effectiveness. If you do not comply with the provisions of the Wills Act, no matter what the intention of the testator is, it could be difficult for it to be given legal efficacy. Notwithstanding the provisions and principles of equity (that equity looks at the intention not the form), but if there is statutory requirements which are mandatory to be complied with, no matter how good or how best to wish of the testator is, if it does not feel the bill of statutory requirement, certainly the common law would take precedence. Let’s say a will was prepared wherein the testator or the testatrix loves his or her children so much so that he or she decided to devise all his real estate to them. But unfortunately, one of the witnesses was somebody who had derived a benefit under the will. So you have to consider what is the position of that devise; you have to consider what was the intention of the testator or the testatrix in making the devise in the will. Is it the position in the Wills Act that when somebody takes under a will and he is a witness in the will he can so take as devised in the will? Or is it a situation wherein by simply appending his signature to the will, he is deprived of that bequeath or the devise that the person makes in the will? These are all matters that would have to be considered under the Act. But for purposes of now, we are occupying our minds with the “Words of Limitation in a will”; how effective they are. The presupposition is that the document called the will must have complied with the provisions of the wills Act. Now, there is the normal practice that sometimes executors are appointed in a will. Sometimes there are no executors appointed in the will. You ask yourself the question: does the failure by the testator to appoint executors in the will invalidate the will or it does not? There is a very authoritative text that deals with that issue. This is called “Tristram and Coote on probates”, It’s very instructive. It will tell you whether if a will does not contain a provision for the appointment or a clause for the appointment of executors or executrices, that omission in the Will invalidates the Will. If you read that book, it will tell you exactly what the position of the law is). _In the case of gifts by will, the attitude of the courts was different. A conveyance inter Vivos was originally a solemn ceremony in which considerable importance attached to the proper procedure being followed. Later, with the development of the law in land, the nature of a conveyance changed and became more complex to the extent that it was necessary to seek NOTE: Mr. Sahid Sesay’s lecture on English Land Law. Typed, compiled and further research is made by ABU B.M. KAMARA (LEGAL BAKISH). Typographical and other errors are inevitable. Thus, you are advised to consult other authorities! Page 22 © ABU B.M. KAMARA (LEGAL BAKISH) effort to do justice to who the beneficiaries are and to what the intention of the testator is. That is why if you dispute the content of a will, you go to court for the will to be proved in solemn firm. So the level of liberalism that the court will attach to the interpretation of a conveyance is not the same that it will do so when it is interpreting the will. With a will, it is more liberally done and with a will you have the principles of equity coming into play so as at least the intention of the testator is not defeated at the altar of Common Law complexi WORDS OF LIMITATION FOR A FEE SIMPLE At common law, the proper expression to employ was “and his heirs” following the name of the grantee. That is for example; to “Peter and his heirs”. It is the general position in land law that “heir” which is the singular of the plural “heirs” would not suffice to convey the grantor’s intention in the grant. (Explanation: Let us take one scenario which goes like this: in a Labors Law there is contractual relationship between the employer and the employee and that situation is such that there is the intention for any party who breached the conditions under which the employment contract was entered to seek redress in the appropriate court of law. If an employer seeks an employment and fill the application form; and in that form it will not be hard to say words in the singular connotes the plural or words in the plural connotes the singular because it is not an Act of parliament. If the employer agrees to the condition of the employment and in the cause of the employment she became pregnant. But the conditions of the employment is between the employer and the employee. If the pregnant woman therefore goes to work with her pregnancy, is she in breach of the condition of the employment? Because mind you the employment was only for one person and the presumption is that the person in the womb is a man or human being which legal position is not settled, would you say the person in her womb is part of the condition?) And the word “and” could not be replaced by “or”; that is to say where a grant is made to “A” or heirs of his body, the position of the law is that “A” merely takes a life estate. (Expl anation: This literature is saying that you cannot substitute the “And” for “Or” for you to say after “A” would have died, it is an estate of inheritance. For if you say to “A” or the heirs of his body, all you have given to “A” is a Life Estate which means upon his death, the estate reverts to the grantor; it does not go to his descendant because the word “Or” cannot be substituted for “And”. if you had wanted it for the heirs of “A” to take after “A” would have died, you should use the word “And” which connotes to “A and the heirs of his body” and not “A or the heirs of his body” in which situation “A” only take her life estate which is not an estate of inheritance.) It is important to note that the words “and his heirs” gave no estate in the land to the heirs. The words were mere words of limitation delimiting or marking out the estate which “A” was to take but they were not words of purchase. That is to say the use of the words does not confer an estate on the heirs themselves.(Explanation: This is saying that in the tradition of old NOTE: Mr. Sahid Sesay’s lecture on English Land Law. Typed, compiled and further research is made by ABU B.M. KAMARA (LEGAL BAKISH). Typographical and other errors are inevitable. Thus, you are advised to consult other authorities! Page 25 © ABU B.M. KAMARA (LEGAL BAKISH) when you say to “A and the heirs of his body”, they do not mean words of purchase. On the contrary, they meant words of limitation. So that is to say the only person that can take under the grant is “A”. It does not confer any estate on the heirs of “A” because the position of the law at the time before a celebrated case of SHELLEY which we shall deal with in due course, was that when you convey to “A” and the heirs of his body, the “And heirs of his body” are not words of purchase; they are words of limitation. They delimit the estate that “A” was to take under the grant. But will soon see after the court in England determined in the Shelley’s case, that there was a magical over to that conception of the law. You will see in that case that the words which were hitherto held to be words of limitation, automatically transforms themselves by the development in Land law in particular in that case to now say when you convey to “A and the heirs of his body”, they no longer represent words of limitation, but on the contrary they are now deemed to be words of purchase. So if you say to “A and heirs of his body, it means the heirs of his body of “A” were automatically conferred an estate which estate, “A” is the predecessor in title. He takes before the heirs of his body takes after the decision in what was known as the SHELLEY’s case. So you will understand how the law will go.) “Purchase” is used in land law to refer to any transaction whether for value or not whereby property is acquired by act of parties, as by gift and not merely by operation of law as on intestacy (when somebody die without leaving a will). For example, if “A” had a son at the time of the conveyance, before the decision in Shelley’s case, it was the position of the law that even though “A” had a son at the time of the purchase of the property, that purchase by “A”, his father, does not confer any estate on the son for he (the son) only had what we call in law Spes Successionis which means; a hope of succeeding to the fee simple of the land assuming “A” died without disposing of it. Although A’s eldest son is his heir in the popular sense, the legal maxim is “Nemo Est Heres Vivientis” meaning a living person has no heir. On that proposition of law (that a living person has no heir), see the celebrated case of IDLE v COOK (1705) 1 P. WMS. 70 @ pp 77 A living person may have an heir apparent. That is, a person who if he survives “A” will be A’s heir such as his eldest son or “A” may have an heir presumptive; that is a person who if he outlives “A”, and no person with better claim comes into existence, will be A’s heir such as his daughter. But it must be noted that A’s heir can only be ascertained after the death of “A”. It must be noted that two special rules must be noticed. First, a Fee Simple could not be restricted to heirs of any particular sex. By illustration of this position, a conveyance to “A” and his heirs male gave only “A” the Fee Simple. The word “male” in the grant is rejected on the ground of repugnancy. (Explanation: If you make a devise say to “A” and the heirs of his body male, you mere gave “A” the Fee Simple in so far as the old position of the law is concerned because according to the situation of the law, the heir of his body has not been predicated on any sex. So if you convey to “A” and heirs of his body male, of course that other part of the conveyance that talk about to the heirs of the body male is considered to be NOTE: Mr. Sahid Sesay’s lecture on English Land Law. Typed, compiled and further research is made by ABU B.M. KAMARA (LEGAL BAKISH). Typographical and other errors are inevitable. Thus, you are advised to consult other authorities! Page 26 © ABU B.M. KAMARA (LEGAL BAKISH) obnoxious. So “A” only takes a Fee Simple. That was the position and this is one of the matters that we need to note under this particular literature.) Secondly, a conveyance “to the heirs of A”, “A” being dead at the time of the conveyance gave a Fee Simple to the person who was A’s heir. It was the position therefore strictly speaking, perhaps, the phrase should have been “to A’s heir and his heirs”. That is to say if the grant is only made to the heirs of “A”, the effect of such a grant in law will certainly not change in that they had only a fee simple. But if “A” was alive at the time of the conveyance, the grant would have failed utterly for neither “A’s heir apparent nor the presumptive was “A’s heir and since the conveyance sought forthwith (directly) to divest the grantor of the Seisin, and there was nobody in whom it could vest, the position in the law therefore was that the conveyance was void. See ELSE v OSBORN 1717 1 P. WMS 387. (Expla nation: As time passes on you will see in land law there is no provision for abeyance; is Seisin in abeyance. It is a fundamental position in law. If a property has nobody to vest in, it cannot vest. Simply because it does not want to vest, but because there is no person for it to vest in; so it runs in parallel with the principle of Seisin in abeyance; there is no situation of abeyance. It’s analogue to the situation wherein somebody died intestate. When somebody died intestate, of course at his death unless somebody takes out letters of Administration in his estate, the property would certainly would be in abeyance; there would be nobody. But because the law is against a Seisin in abeyance, that is why under the provisions of the Administration of Estate Act (S. 9), it tells you automatically upon the death of a person intestate, his property vests in the Administrator and Registrar General. It is to take care of that vacuum, of that situation of Seisin which is in abeyance because the property has to be vest in somebody else. Let us assume somebody died without leaving a relation, but there are tenants occupying the properties. The law says you should go to Roxy Building and talk with the Administrator and Registrar General to pay your rent, because the law says upon the death of a person intestate, his property automatically invest in the Administrator and Registrar General; which means if our father died, until and unless letters of Administration are taken in the Estate of your deceased parent, nobody on the premises has the right to pay rent to you the children, but should be forwarded to the Administrator and the Registrar General. So the Administrator and Registrar General will not be receiving rent deriving from the estate of a deceased intestate merely because he or she wanted to consume there. By receiving those rents inuring from the deceased estate, he is deemed to be in a Fiduciary Relationship with the eventual beneficiaries of the estate. So, which means if later on, during the course of time, letters of administration are granted to either the wife, under the Devolution of the Estate Act, the Administrator General has a duty to account to the person to whom letters of Administration has been granted by the High Court, for all the rent he has collected in respect of that estate. If he refuses, you can come to court and order for him to account. So also to you who have taken that letters of administration, if any prosiest comes from the estate of the deceased person, you don’t eat it because that alone will disqualify you from continuing as an Administrator of the Estate. If there is a will left by the deceased, it is the executors in the will who are responsible for looking after the property that will NOTE: Mr. Sahid Sesay’s lecture on English Land Law. Typed, compiled and further research is made by ABU B.M. KAMARA (LEGAL BAKISH). Typographical and other errors are inevitable. Thus, you are advised to consult other authorities! Page 27 © ABU B.M. KAMARA (LEGAL BAKISH) WORDS OF LIMITATION FOR A FEE TAIL (i.e. under conveyance inter Vivos) At Common Law: The expression required to create a Fee Tail was the word heirs followed by some words of procreation. By procreation it means, words which confined (limited) “Heirs” to descendants of the original grantee for e.g. “To X and the heirs of his body”. The word “heirs” though was essential but any words of procreation would have sufficed. This for e.g. “To A and heirs of his flesh” or “To A and heirs from him proceeding” were sufficient to create entails. But expressions such as “To A and his issue” or “To A and his seed” were held not to have created a Fee Tail in a deed. The reason being the word “heirs” was missing. The reason why words of procreations were required was that heirs included relatives other than descendants of the grantee such as his brothers and sisters. An entail however is an interest in land which can pass only to the descendants of the original grantee and (though children adopted before the entail was created and now included by virtue of the provision of section 16 of the English Adoption Act of 1958) so therefore, the phrase “heirs” had to be restricted by addition of words of procreation. (NOTE: SL has the Adoption Act of 1989 which regulates adoption in the country. Download it and know whether we are having a corresponding legislation dealing with adoption in SL.) It was settled that by the addition of suitable words, an entail could be further restricted so that it descended only to a particular class of descendants. Examples of such situations are as follows: In creating a tail general, the phrase “To A and heirs of his body”, the interest will only be inherited if “A” to whom the interest was granted had descendants of either male or female. In a Tale male situation for e.g. “To “A” and heirs male of his body”, in which case, only male descendants of “A” who could trace an unbroken descent from him through males could inherit; and does not, for e.g. the son of A’s daughter are not eligible to inherit. In Tail Female for e.g. “To “A” and heirs female of his body”, the corresponding position of the law applicable to Tail Mail is also applicable to this situation. Furthermore, a “Special Tail” could also be created confining the heirs entitled to those descended from a special spouse for e.g. “To “A” and heirs of his body begotten upon Mary” wherein only the issue of “A” and Mary could inherit; Mary of course took nothing. (Explanation: The devise is to “A” and heirs of his body begotten by Marry. The position in law, in a Tail Special is that, only those issues that were begotten by “A” with Marry could inherit, but so far as Marry is concerned, she takes nothing because the devise was made to the children that were begotten by Marry not to Mary herself. If the testator had wanted Mary to take he would have said for example | devise my house “To my wife, Mary, and her children.” But if he only said in his will that NOTE: Mr. Sahid Sesay’s lecture on English Land Law. Typed, compiled and further research is made by ABU B.M. KAMARA (LEGAL BAKISH). Typographical and other errors are inevitable. Thus, you are advised to consult other authorities! Page 30 © ABU B.M. KAMARA (LEGAL BAKISH) | devise my house to the under mentioned children with whom | have with Mary, it means that he has created a special interest to those children whose name appears in the clause of the devise without any interest accruing to their mother. That is the situation in Tail Special. It would be a situation where in the grantor had had children with several wives. So the devise in a special tail is made to speci descendants from a spe erson.. As in the case of a fee simple, the words following A’s name were held to be mere words of limitation. Thus, “To ‘A’ and heirs of his body” gave “A” a Fee Tail but gives his either heir apparent or heir presumptive no estate at all. By Statute The Conveyance Act of 1881; in the case of deeds executed after 1881 i.e. after the enactment of the Conveyance Act of 1881, there were provisions made in the Act for Entails similar to those made for a Fee Simple. In addition to the expression which sufficed to create an Entail at common law, the words “In Tail” which is distinguishable from the phrase “Fee tail” following the name of the grantee would only create a Fee Tail, for e.g. “To X in Tail”. If it was desired by the grantor to restrict the Entail to a particular class of descendants apt could be added (Other words appropriate words could be added); for e.g. “To “A” in Tail Male”. These rules still apply after 1925 in the Law of Property Act with the Law of Property Act 1925 being enacted to replace the provisions in the Conveyance Act of 1881. The effect of using informal words such as “To Aand his issue” would have the effect of passing the Fee Simple either to A or toA Jointly with such of his issue as are alive at the time of the gift. However, the former of the views, seemed in law to be a better view. GIFT BY WILL IN 1926 (AFTER THE ENACTMENT OF LPA 1925) The rule before 1926 remained unaffected until the LPA 1925 was enacted. It laid down the principle that in formal expressions should no longer suffice to create an entail in a will, but that expressions which would have been effective to create an entail in a will before 1926 must now be used. Therefore, in deeds as well as in wills, in either of them, “Heirs” followed by words of procreation, or “In tail”, must now be used. Ina situation of a conveyance inter Vivos, it would seem like the effect of using informal expressions such as “to A and his issues” would now pass the fee simple to A either to himself or to A jointly with such of his issues that were alive at the date of the death of the testator. (Explanation: So we have discussed the situation regarding rules of certain words in deeds as well as in wills before 1926 and after the enactment of the Law of Property Act of 1925. Now we can see how after the enactment of the 1925 Law of Property Act, the use of certain words whether irrelevant or necessary became applicable either to wills or deeds having regard to the intention of the testator. Either by the words use by the testator in the deed or in the conveyance (if it is made in conveyance inter Vivos) would pass the Fee Simple absolute in NOTE: Mr. Sahid Sesay’s lecture on English Land Law. Typed, compiled and further research is made by ABU B.M. KAMARA (LEGAL BAKISH). Typographical and other errors are inevitable. Thus, you are advised to consult other authorities! Page 31 © ABU B.M. KAMARA (LEGAL BAKISH) possession or not; or whether certain other estates that we have discussed earlier before now would be said to have been created under the deed or the will having regard to the position of the law of Property Act of 1925.) THE RULE IN SHELLEY’S CASE The rule in Shelley’s case applied before 1926 to both deeds and wills. It was a rule of law which may be stated as follows. It is a rule of law that when an estate of freehold is given to a person and by the same disposition an estate is limited either mediately or immediately of his heirs or to the heirs of his body, then if both limitations are legal or both are equitable, the words “heirs” or “heirs of his body” are words of limitation and not words of purchase. The operation of the rule before 1926 was to the effect as follows: “To A for life remainder to his heirs” or “to B for life and to the heirs of his body”, the natural meaning of the words was that A and B should take a life estate, and that whereas the heirs of A would take a fee simple, B’s heirs would take a fee tail. A and B would thus have been unable to defeat the claim of their heirs notwithstanding any disposition which A and B might make either in a will or ina deed inter Vivos, on their death the land would have passed to their respective heirs. The rule in Shelley’s case, however, required an unnatural effect to be given to such limitations. Under the rule, the fee simple remainder did not pass to A’s heir, but passed to A in addition to the life estate with the result that A’s life estate in possession and his fee simple in remainder merged together to give “A” a fee simple in possession. Similarly B took a fee tail in possession. In each of the two cases above (that is to A and B), the rule prescribed that the words “remainder to his heirs” or “remainder to the heirs of his body” should be treated as words of limitation marking out the estate taken by A and B since such words were not permitted to operate as words of purchase conferring an interest on the person they mentioned namely, the heirs of A and B. The effect of the rule in Shelley’s case was therefore to make a limitation to A for life remainder to his heirs; the equivalent of a limitation to A and his heir”. In each of the two cases, A took the fee simple. (Explanation: So that is the position in the rule in Shelley’s case; but you will later on discover that because of the modernization of the law in respect to land, it was considered to be very obsolete. It was considered as the rule that was akin to the feudal ownership of land wherein you have the serve and you have the Lord. It was seem as a situation wherein it was like the position which was in existence in England after the conquest of England by the Normans in 1066 wherein you have all these various kinds of tenures that were in existence (Tenure in Socage, Spiritual Tenure etc). So, they came out with a position to say that if we continue to look at merely the words used by the testator or the person who executed the Deed Inter Vivos to have conferred on the people only words of limitation, then it would have done injustice and even to the intent on the intention of the person who make the deed which is the testator. So what NOTE: Mr. Sahid Sesay’s lecture on English Land Law. Typed, compiled and further research is made by ABU B.M. KAMARA (LEGAL BAKISH). Typographical and other errors are inevitable. Thus, you are advised to consult other authorities! Page 32 © ABU B.M. KAMARA (LEGAL BAKISH) provisions on the Conveyance Act of 1881 or the Law of property Act of 1925; if you did not take the pains to search in the office of the Administrator and Registrar General to ascertain either there is a competing legal interest or an existing equitable interest on the property, and you went ahead and purchase, you are deemed to have what they called IMPUTED NOTICE about the existence of that equitable interest in the property. So if you bought at the time when there is a subsisting lease, until and unless that lease expires or some event are arose which they call the lease into dispute, then of course the new owner cannot serve notice on the tenant to vacate the place. So, it is not in all case that the legal interest holder would automatically displace the equitable interest holder especially if the equitable interest holder has been performing with Due Diligence under the instrument that him an equitable interest in the property.) Now, let us take the Fee Simple: The Fee Simple is the most ample estate that can exist in the land. In theory, although such an estate is short of full ownership, in practice it is the opposite. The reason being by the time of the existence of this kind of estate in land law, all traces of the old feudal burdens (example of giving men into the King’s Army etc) have disappeared. The tenant in fee simple has the important right of alienation (dispose). That is the right to transfer to another the whole or any part of his interest in the land. (Explanation: So you can see it is because of these practical situations that even when the theoreticians are saying the Fee Simple holder is not an Estate of ownership, in practical terms, they disputed it. Because if | am holding the Fee Simple and the law gives me right to assign either the whole of my estate or a portion of it, what is important in so far as ownership of land is concerned, is the right to alienate. If even the Life interest holder may not know how long he is going to live but that does not preclude him from alienating a portion of his interest. Outright disposal, perhaps which is where the contention is, can a Fee Simple holder make an outright disposition of the land? We shall see as the literature unfolds itself. Or would you say a life interest holder of an interest in land is almost at par with a Fee Simple holder? Because with a life interest holder, he cannot dispose of a land because his interest only subsumes on to the time of his death) THE RIGHT OF ALIENATION (That is the right of alienation that is inherence in the fee simple holder) Today, a tenant in fee simple may dispose off his estate either by deed or a will inter Vivos, but this position has not always been so before. Before the Norman conquest of England in 1066, much of the land seems to have been freely alienable by the tenants who were occupying them. But under the feudal system which system was imposed after the conquest of England by the Normans, the tendency was to restrict alienation of interest in land. It was the position that if a tenant under the feudal system had right to dispose of his interest in land, the consequences of such alienation or disposition of an interest in land is suffered by two categories of people; namely the Lord and the heirs. ( Explanation: These are the people who NOTE: Mr. Sahid Sesay’s lecture on English Land Law. Typed, compiled and further research is made by ABU B.M. KAMARA (LEGAL BAKISH). Typographical and other errors are inevitable. Thus, you are advised to consult other authorities! Page 35 © ABU B.M. KAMARA (LEGAL BAKISH) will suffer. The Lord will suffer because he is the person from whom you acquire interest in the land. The heirs will suffer because these are the people especially if it is an estate of inheritance, who would have taken over his interest in the land had he perished. So the Lord will be deprived of his ownership of the land, and the persons who are entitled to take interest after he would have died would also be deprived of those interests. So that is why they said in the Feudal System there were these people who were suppose to suffer if the tenant had an inherent right to alienate his interest in the land.) THE RIGHTS OF THE HEIR (Explanation: we have just said under the feudal system if the tenant had right to dispose of his interest in land, two set of people were bound to suffer; that is the heirs and the Lord. We are now going to examine what the right of the heir is, and that presupposes the suffering on his part if the land was to be disposed off by the tenant.) In the early law, both the heir presumptive and the heir apparent were regarded as having an interest in the land to the extent that the tenant could not be allowed to dispose of his interest in land without the consent of the heirs. And as such, subsequent events might show that the heir apparent or presumptive was not the person who would have succeeded to the land had it not been alienated. It was therefore not unusual to get the consent of as many near relatives as possible in a situation of disposition or alienation of an interest in the land by the tenant. But by the year 1200, the principle or the practice that the tenant was not able to alienate his interest in land had disappeared. The position after was that, a tenant in fee simple had acquired rights and authority to dispose of his interest in land so as to defeat all claims of his heirs. It was therefore the conclusion that having regard to the right inherent in the fee simple holder to alienate the land, all that the heir apparent or the heir presumptive has was only a Spes Successionis and no interest in the land. However, by the beginning of the fourteenth century, the existence of a fee simple which hitherto was dependent upon the existence of heirs of the original grantee had ceased to be as such. (Explanation: Before the fourteen century, it was the position in law as we have discussed in the previous literature that the existence of a Fee Simple is dependent on the existence of the heirs, either presumptive or apparent, of the original grantee. But after the fourteen century, that pre condition, that is for the existence of heirs of the original grantee, had now ceased. So the situation of grant made now especially in fee simple is not contingent up the existence of those heirs again which hitherto was the position before you can say there is a fee simple estate granted to a tenant.) Strictly, if a grant was made “To A and his heirs”, the fee simple should have determined as soon as “A” and all his heirs were dead. These situations subsist, even if “A” had alienated the land. But a fee simple virtually became eternal when the courts decided that if a fee simple was alienated, it will continue to exist as long as the new tenant and his heirs or any of his heirs NOTE: Mr. Sahid Sesay’s lecture on English Land Law. Typed, compiled and further research is made by ABU B.M. KAMARA (LEGAL BAKISH). Typographical and other errors are inevitable. Thus, you are advised to consult other authorities! Page 36 © ABU B.M. KAMARA (LEGAL BAKISH) lived. (Expla nation: so what in summary after the fourteen century is telling you about the Fee Simple estate is that, with the advent of the decision in the court especially in the rule in Shelley’s Case, a Fee Simple now is not an estate of extinction but it survives and persists. So that if even the jal tenant had granted or alienated a land to a new tenant even before him and his heirs died, once that new tenant had heirs the Fee Simple continues. But previously, the moment all of them died, the Fee Simple automatically becomes an end. So it would stand to suggest that before the fourteen century, the Fee Simple was an estate of ext in, but after the fourteen century especially with the decision in Shelley’s case, which makes now heirs and heirs apparent are words of purchase and not words of limitation, automatically it makes the Fee Simple estate an estate that continues to exist if even the original grantee and his heirs have died but the mere fact that the new tenant’s heirs exist even if also the new tenant has died.. So it becomes now an estate of inheritance and an estate that has the characteristics of perpetuate. ) Although after the 12th century, a tenant in fee simple has the right to alienate his interest Inter Vivos and so defeat the expectation of his relatives, there was no right inherent in him to dispose of such interest by will. (Explanation: This means the tenant can alienate his interest Inter Vivos which is either by a deed of gift or bya sale, but he can however not do that in a will; that is to say, he cannot alienate his interest in a will. CAN ANYBODY GUESS WHY? No answer was given.) THE TYPES OF FEE SIMPLE ESTATES With fee simple, which can either be a fee or a fee simple can either be absolute or modified. Generally speaking, a modified simple is that kind of a fee simple estate which is not a fee simple absolute. (Explanation: This means that when we talk about a fee simple that is modified, it means it is not a fee simple absolute because a fee simple absolute is one of the kinds of fee simples that are in the Land Law.) There are four types of Fee: THE FEE SIMPLE ABSOLUTE THE DETERMINABLE FEE A FEE SIMPLE UPON CONDITIONAL and A BASE FEE PYwNR 1. THE FEE SIMPLE ABSOLUTE: The fee simple absolute is the type of estate that is most frequently encountered in practice. It has the characteristic of continuity forever. That is to say a fee simple absolute is the kind of NOTE: Mr. Sahid Sesay’s lecture on English Land Law. Typed, compiled and further research is made by ABU B.M. KAMARA (LEGAL BAKISH). Typographical and other errors are inevitable. Thus, you are advised to consult other authorities! Page 37 © ABU B.M. KAMARA (LEGAL BAKISH) determinable fee that was granted but later on because of certain situations may have arisen during the subsistence of the grant, it was concluded to have been a fee simple absolute. A graphic or classic example of this situation is that of a situation of a grant made to “Alim and his heirs until Yusuf, his brother, marries”. (Explanation: By the look of this grant, it was a determinable fee; because the moment Yusuf marry, then the fee simple that was granted determined almost immediately because the occurrence of the event determined the fee; that is why they called it a determinable fee. Now, if Yusuf died a bachelor, you would automatically see that what would have been a determinable fee becomes a Fee simple Absolute because the condition predicated on the grant that has made never came to exist; that is, Yusuf did not marry.) Determinable fees are rarely encountered in practice except marriage settlements. That is a situation for example wherein a person settled land upon himself otherwise called a settlor until the solemnization of his marriage. But it is important to note that a fee simple limited to a corporation does not determine merely because the corporation is dissolved. (Question: because he does not believe the condition would happen, he alienates the land and the moment he does that, then the even that he thinks had no possibility of occurring occurred. How does the possibility of reverter occur? Do a research considering the principles of Bonafide purchaser for valid without notice, Caviet Emptor. The first thing that you will have to determine is whether that person to whom the land was alienated did know the kind of interest the person who alienate the land had because the law impute on you notice to know about any encumbrances on land once you are in desirous of purchasing it; which means you should take reasonable steps of inquiring to see what is the root of title, how far it has been in subsistence and whether there are any contingent interests in the title. Because he had taken the steps to make inquiries as to the root of title, he would have not been in the position to say that it was a determinable fee was granted to the person who is ready to sell. Even though perhaps the condition which himself might see upon which the grant was made was such that it would have a little likelihood of occurrence. So, in such a situation where in all those facts are known to the purchaser, he purchased, was he doing the transaction at his own risk? Could he be described as the bonafide purchaser or can he be said as a malafide purchaser? All those are matters which you will have to take into consideration in determining whether even alienation that was done is sufficient enough to have vested in him the free simple estate in the land. 3. A FEE SIMPLE UPON A CONDITION: In making a grant of a fee simple, the grantor may add a clause in the grant to the effect that the fee simple estate will not commence until the occurrence of a particular event. Also, the grantor may also make a condition for the fee simple to commence to the effect that it will only commence after the occurrence of an event. (Explanation: This means from the two scenarios NOTE: Mr. Sahid Sesay’s lecture on English Land Law. Typed, compiled and further research is made by ABU B.M. KAMARA (LEGAL BAKISH). Typographical and other errors are inevitable. Thus, you are advised to consult other authorities! Page 40 © ABU B.M. KAMARA (LEGAL BAKISH) that we have stated, a fee simple on the condition would either be on a condition precedent or on a condition subsequent.) A gift to John and his heirs when John would have attained the age of 21 is a fee simple with a condition precedent. That is to say, John would only take the fee simple estate after he would have attained the age of 21 years. However, a condition subsequent as stated earlier is a one that has the effect of defeating the interest. (Expla nation: From the illustration given, it is clear that if the condition is precedent to the taking of the grant, it means upon the occurrence of the condition, automatically you take the estate. So which means a condition precedent is a condition that is there to enhance the enjoyment of the interest in the estate granted. As appose to a condition precedent, a condition subsequent determines your enjoyment of the estate; and when it determines the enjoyment of the estate, it also has the characteristic of defeating the very interest you have in the estate, because the continuation of your enjoyment of the estate is contingent upon the non occurrence of the event. The moment the event occurs, automatically your interest is at an end. That is why it says a condition subsequent has the effect of defeating interest that the grantee has in the land.) For e.g. a devise of land to Mary on the condition that she never sells it out of the family. (This is nota condition precedent rather, it is a condition subsequent to the grant. Any condition attached after a grant had been made, is a condition subsequent. Any condition that exists before the enjoyment of the grant made by the grantor is a condition precedent). In this scenario (The first scenario above before Mary’s), the interest in the land becomes vested in John upon the death of the testator. The analogy does not put any condition that john is bound to fulfill before he enjoys the interest in the land. (Note that once the condition precedent is not fulfilled, the property reverts back to the grantor, and again if the condition subsequent occurred, also the property reverts back to the grantor). The difference between a determinable fee and a fee simple defeasible by a condition subsequent (That is a fee simple that is defeated by reason of a condition subsequent) is not always easy to discern. The essential distinction is that the determining event in a determinable fee is included in the words marking out the limit of the estate. Whereas, a condition subsequent is a clause added to a limitation of a complete fee simple absolute which seeks to defeat it. By way of an example therefore, a devise of land to the Faculty of law, Fourah Bay College, in fee simple on the condition that “Until its graduate students ceases to convocate at the amphitheatre” will create a determinable fee. Whereas in another device in which the testator made a devise to the law faculty Fourah Bay college to wit; “To the faculty of law Fourah Bay College on the condition that their graduate students study for their B.L. at the law school of sierra Leone” creates a fee simple defeasible by a condition subsequent. Therefore, words such as “while” “during” “as long as” and so on, are usually used for the creation of a NOTE: Mr. Sahid Sesay’s lecture on English Land Law. Typed, compiled and further research is made by ABU B.M. KAMARA (LEGAL BAKISH). Typographical and other errors are inevitable. Thus, you are advised to consult other authorities! Page 41 © ABU B.M. KAMARA (LEGAL BAKISH) determinable fee. Whereas words which form a separate clause of defeasance such as “provided that” “on condition that” “but if” “if it happens that”, are words meant to operate in a condition subsequent. It is therefore important to note that one way to distinguish between when an interest is contingent on a condition precedent or a condition subsequent is to look at the words used in creating the conditions. It must also be noted that the examples that have been cited above do not make the words that are used in either of the two cases above closed. Much as words would serve as a guiding light for us to determine whether a determinable fee or a fee upon a condition exists, the entire grant or devise that is made must be construed in its entirety so as to understand what the intention of the testator or the grantor was. THE DISTINCTION BETWEEN DETERMINABLE FEE AND CONDITION PRECEDENT OR CONDITION SUBSEQUENT It will be seen that the differences or that the primary difference in determining when a determinable fee or a fee simple upon condition is created is primarily one of wording. The determining event may be worked into the limitation in such a way as to create either a determinable fee or a fee simple defeasible by condition subsequent whichever the grantor may wish. The practical differences between the two forms of fee are as follows: (a) The determination: A determinable fee has the characteristic of determining automatically when the condition specified in the grant occurs. Such a situation will be said that the natural limits of its existence have been reached. See NEWIS V LARK 1571 2 PLOWD 403. (/t is also called a scolastica’s case in which it was strongly in point for the plaintiff in error. There, a clause to prevent the parties, to whom the estate was devised, from alienating or mortgaging the estate, assumed to be a legal clause, was held to be a limitation of the estate, and not a condition: and the judgment of the court proceeded on the intent of the devisor, which was determined to be, that the estate tail should continue until the acts prohibited were done. That also was the intent of the devisor in the present case; the estate was to continue until the title descended upon the person holding it, and then his estate was to cease as if it had never been created. It is manifest that the repetition of the proviso as to the names and arms was necessary. This point, so decided in this case has never been contradicted and was supported afterwards in Sharington V Minors and by Page V Hayward.). A fee simple upon condition has the effect of giving the grantor or whosoever is entitled to his realty upon the death of the grantor a right to enter and determine the estate when the event occurs. However, until such entry is made the fee simple has a tendency to continue; see MATTHEW MANNING’S CASE 1609 in which it was held that on a devise of a term to A, so long as he should have issue, and if he died without issue, then to B, the remainder to B was good. (Explanation: The literature is saying that that person who is entitled to the landed aspect of his own property is the person who can exercise the entry upon the occurrence of the event failing which, that is why if you look at the kind of estates that is granted, if such entry is not made by the person who succeeds to the realty of the estate NOTE: Mr. Sahid Sesay’s lecture on English Land Law. Typed, compiled and further research is made by ABU B.M. KAMARA (LEGAL BAKISH). Typographical and other errors are inevitable. Thus, you are advised to consult other authorities! Page 42 © ABU B.M. KAMARA (LEGAL BAKISH) now to say he has not got a right to sell because he is only a life interest holder. That is why in such a circumstance when you want to convey, he is the vendor and he also is the vendor. He should not sign as a witness because it is both of them conveying to him. He will convey the interest he has in the property as the life interest holder. He would have an interest in the property which is called an interest in remainder which would merge together and convey unto him the Fee Simple Absolute. In this case much as he cannot sell without him, he also cannot sell without him because his interest will only immerge after his own interest would have perished. So because he has an interest that is latent contingent about his own existence does not give him the license for him to sell. Because if he does, he can go to court to have the conveyance set aside because the argument is, his interest will only arise after his own interest would have perished. So he has an interest in remainder which would only come into play after the life interest holder would have vanished which is quiet separate and distinct where in there is an interest in reversion like the example we have made. If he is the life interest holder, he can let out the property say for five or more years; once the terms of years for which the tenural relationship was created determines in his life time, the property always reverts to him. So he holds the reversionary interest in the property. But let us say he granted the property in his life time and the person to whom he granted; he who had granted predeceased him, automatically the property that he had granted to that other person, his tenure seizes because it is now him who holds now the interest in remainder. So in that situation, he would be having both the reversionary interest and the interest in remainder because that tenure which he had granted to you will not revert to the original grantor because the original grantor had died. It will now come to him added up to his own interest in remainder which automatically shoots up upon the death of the life interest estate holder. In summary, this concludes that prior to the 1925 Law of Property Act with reference to the Shelly’s case, the life interest holder by then has the right to sell property to a third party devoid of the other person’s remainder interest. So with this explanation, what you should look at is, what were the situations whether before the Shelley’s case and the 1925 legislation, whether those limitation words were words of purchase or words of limitation? If they were words of purchase, what is the effect on the heir or heirs of the body of the original grantee. If they were words of limitation, whether they took any estate upon the demise of the grantee? That is what all is about) NOTE: Mr. Sahid Sesay’s lecture on English Land Law. Typed, compiled and further research is made by ABU B.M. KAMARA (LEGAL BAKISH). Typographical and other errors are inevitable. Thus, you are advised to consult other authorities! Page 45 © ABU B.M. KAMARA (LEGAL BAKISH) THE 1925 LAW OF PROPERTY ACT (EXPLANATION: We did say in land law that if you are buying property, the principle of Caviet Emptor operates except for a bona fide purchase for valid without notice like the last lectures explained concerning a like interest holder selling without the consent of the person that has a remainder interest in that property. So, these are all the issues that came after the enactment of the Law of Property Act of 1925. But as it is known, to any rule in law as in the general right, we have exceptions. ) It was the position that the purchaser of real property who buys without notice of an encumbrance, which is in the form of a legal right, is bound by that legal right; but takes free from it if it is an equitable right. Consequently however, it is settled that the fewer the legal estate and interest can exist in land, the less unsafe or precarious the position of the buyer. The Law of Property Act of 1925 introduced in forms to the existing law in three major respects. (1) It reduces the number of legal estates and interests that can exist in the land (That is one of the reformations that the law of Property Act of 1925 introduces) (2) It increases the number of cases in which legislation in the land charges register takes the place of the doctrine of notice; and (3) It increases the number of rights which will be “over rich” on a conveyance. That is to say, transferred from the land to the purchase money that represents it. 1. Reduction in number of Legal Estates that exist in the land: Section 1 of the LPA of 1925 has the effect of reducing the number of estates that can exist in land to two (2), and the number of classes of legal interest to five (5). The distinction however is broadly in the sense that a legal interest is a right over the land of another. The terms of the first three sub sections of section 1 of the LPA. Section 1 (1) of the Act provides in its literature that the only estate in land which are capable of subsisting or of being conveyed or created at law are: (a) An estate in Fee Simple Absolute in possession (b) A term of years absolute (this can take any number of years) Section 1(2) provides that the only interest on charges in or over land which are capable of subsisting or of being conveyed or created at law are: (a) An Easement, right or privileges in or over land for an interest equivalent to an estate in Fee Simple Absolute in Possession or a term of year absolute. NOTE: Mr. Sahid Sesay’s lecture on English Land Law. Typed, compiled and further research is made by ABU B.M. KAMARA (LEGAL BAKISH). Typographical and other errors are inevitable. Thus, you are advised to consult other authorities! Page 46 © ABU B.M. KAMARA (LEGAL BAKISH) (b) A rent charge in possession issuing out of or charged on land being either perpetual or for a term of years absolute. (An easement, rights on charges in or over land which are capable of subsisting or of being conveyed or created in law.) (c) A charge by way of a legal mortgage (d) And any other similar charge on land which is not created by an instrument; and (e) Right of entering exercisable over or in respect of a legal term of years absolute, or annexed, for any purpose, to a legal rent charge. Section 1(3) provides for all other estates, interests on charges in or over land which shall now take effect as equitable interests. It should be noted from what have been said above that section 1 of the LPA of 1925 does not provide that the estates and interests mentioned in subsections (1 & 2) are necessarily legal, but merely that they alone can be legal. Before 1926 (period before the enactment of the LPA of 1925), it was the position that no legal interest could be created unless the property formalities were employed or used, and the person making the grant (the grantor) booth had the power and manifested the intention to create or convey a legal interest. (EXPLANATION: That was the position before the enactment of the LPA of 1925. So section 1 of the LPA of 1925 remedied that kind of situation). The effect of section 1 of the LPA of 1925 is to add the a first requirement namely: that a right which existence was a prerequisite for the conveyance of a legal interest in land prior to the 1925 legislation must now be mentioned as stated in subsections (2 & 3) of section 1 of the Act. For example, a life interest or an entail cannot be legal estate after 1925 because they are not included in S. 1(1) of the LPA of 1925. Such rights however, usually arise under “wills” or family settlements as distinct from the Fee Simple Absolute or term of years which are subject matter of commercial transactions, and so made capable of being legal estates provided they comply with the positions or the conditions set out in section 1 of the LPA of 1925. THE MEANING OF A FEE SIMPLE ABSOLUTE IN POSSESSION (Which is a creature that came after the enactment of 1925 Property Act) We need not at this stage discuss again what the FEE SIMPLE means. A clear understanding of what Fee Simple means lies clearly in the literature supra. ABSOLUTE: Absolute in land law is used to distinguish a fee simple which will continue forever from a Modify Fee such as a Determinable Fee or a Fee Simple subject to a gift over in favor of another. For example, a devise “To John and his heirs, but if Marry marries Tom, to Marry and her heirs.” (EXPLANATION: You can see here that it was a kind of gift that had the tendency to perpetuate subject to a condition. It was a gift to John absolute in possession; a condition NOTE: Mr. Sahid Sesay’s lecture on English Land Law. Typed, compiled and further research is made by ABU B.M. KAMARA (LEGAL BAKISH). Typographical and other errors are inevitable. Thus, you are advised to consult other authorities! Page 47