CATHOLIC UNIVERSITY OF EASTERN AFRICA

FACULTY OF LAW

GROUP NUMBER: FOUR

DATE: 10th FEBRUARY 2014

TRIMESTER: II

COURSE NAME: LAND LAW 1

CODE: CLS 300

LECTURER: K. N. MBURU

ASSIGNMENT: CLASSIFICATION OF INTERESTS IN LAND

GROUP MEMBERS:

NURU JAMAL ABUBAKER 1021697

KANDIRE GONDA 1021473

ANDREW KABUGU 1021350

ZAMZAM MOHAMMED 1021743

IAN MATHENGE MWITI 1021631

ROBERT NJENGA 1021456

IAN NYACHOKA NYANGAU 1021794

BONVENTURE OTIENO 1021559

LYNN OTIENO 1021311

 Classification of Interests in Land

1. Doctrine of tenure and doctrine of estates.

2. Types of land tenure in Kenya.

3. Freehold estates: freehold of inheritance (fee-simple and fee-tail).

4. Freehold not of inheritance (life estate and estate par autre vie).

1. DOCTRINE OF TENURE AND DOCTRINE OF ESTATES.

What is an Interest in Land?

An interest in land has being defined differently by statute and various legal dictionaries. Our

aim is to draw from these jurisprudences and seek comparison in order for us to understand what

an interest in land truly is.

According to Section 2 of the Land Act 2012, an interest is defined as a right in or over a land.1

Moreover, The Blacks Law Dictionary defines an interest with regards to land law as a legal

share in something; all or part of a legal or equitable claim to or right in property; that is a right,

title, and interest. Collectively, the word includes any aggregation of rights, privileges, powers,

and immunities.2

Moreover, in its application to real estate or things real, it is frequently used in connection with

the terms "estate,""right," and "title." More particularly it means a right to have the advantage

accruing from anything; any right in the nature of property, but less than title.3

The word "interest" is used in the Restatement of Property both generically to include varying

aggregates of rights, privileges, powers and immunities and distributively to mean any one of

them.4

The Oxford dictionary defines interest with regard to land law as a right in or over land. It may

comprise equitable ownership of the land such as the interest of the tenant for life under a

settlement, where the legal estate is owned by trustees; or the benefit of some other right over the

land of another, such as an easement or rent charge. 5

1
Section (2) of the Land Act No 6. 0f 2012
2
Blacks Law Dictionary 2nd Edition
3
Blacks Law Dictionary 6th Edition
4
Ibid
5
Oxford Law Dictionary 5th Edition
|In conclusion the following elements are clear on what can be termed as an interest in land. That

is ownership, title and possession.|

The Idea of a Right Over Land

The Constitution recognizes that there can be various rights and interests over certain land. For

example, a person can hold land in a freehold or a leasehold tenure. Article 65 of the

Constitution for example states that a person who is not a citizen may own land on the basis of

leasehold tenure only and any such lease however granted shall not exceed 99 years.6 This acts

as an example on how a person can have a right over land which is not absolute. Therefore, the

doctrine of tenure and estates tend to address the issue of the effect of certain rights in land.

In land law, there exist scenarios where different people have different rights over the same land.

This is very important in understanding the issue of a right in land. For example, under the Land

Act 2012, a person can be able to divide his land into different sub-leases, or also in issues of

charges and mortgages or a loanee may also have certain rights over that land.7

Another Example is Section 24 of the Land Registration Act which states that the registration of

a person as the proprietor of land shall vest in that person, the absolute ownership of that land

together with all rights and privileges belonging or appurtenant thereto; and the registration of a

person as the proprietor of a lease shall vest in that person the leasehold interest described in the

6
Art. 65 (1), The Constitution of Kenya (2010)
7
S.63 of the Land Act 2012
lease, together with all implied and expressed rights and privileges belonging or appurtenant

thereto and subject to all implied or expressed agreements, liabilities or incidents of the lease.8

The rationale behind the idea of rights over land can be summarized as follows:

To Protect Individual Rights;

The protection of individual rights helps members of the society or rather people who have an

interest in that land to know where their rights begins at and where their rights come to an end

(the limitation of their rights). If these limitations were not set about, there could be a lot of

chaos as the idea of a right over land would not be defined.

To Ensure Flexible Enjoyment of Land;

It is true that not everybody can own land as it is a scarce resource. However, individuals are

allowed to enjoy this scarce resource that is land. This is possible due to the fact that there can be

different rights over the same land and everybody enjoys his or her interest peacefully. (Even

though every individual may not have the luxury to own land, the law ensures that these very

same individuals are allowed the right to enjoy their own interests within this same land).

Doctrine of Tenure and Doctrine of Estates

These are the two doctrines that can be used to understand the various rights and interest over

certain land.

8
S. 24 of the Land Registration Act No. 3 of 2012
The Doctrine of Tenure

Under the feudal system, the relationship between the lord and tenant determined the conditions

under which the land was to be held. Today the term is used to indicate the nature of legal estate

in land i.e, freehold or leasehold estates. The only tenure relationship of practical significance in

modern law is that of landlord and tenant. 9

According to the Black Law dictionary, tenure is defined as a right, term, or mode of holding

land or tenements in subordination to a superior.10

The Food and Agriculture Organization of the United Nations further specifies that land tenure is

the relationship, whether legally or customarily defined, among people, as individuals or

groups, with respect to land. Rules of tenure define how property rights to land are to be

allocated within societies. They define how access is granted to rights to use, control, and

transfer land, as well as associated responsibilities and restraints. In simple terms, land tenure

systems determine who can use what resources for how long, and under what conditions.11

Historical Development of the Doctrine of Tenure

The Historical Development of Land Tenure can be traced in England which assists us in

understanding the doctrine and terminologies that apply today. Following the Norman Conquest

in 1066, the then King, William I imposed feudal structure in England. He was the owner of all

9
Oxford Law Dictionary 5th Edition; Elizabeth A. Martin (2001)
10
Bryan A. Garner, Blacks Law Dictionary 8th Edition. (2007)
11
http://www.unep.org/bioenergy/Issues/BioenergyRisks/LandTenure/tabid/79448/Default.aspx
land in England after its conquering. He granted land to certain people in exchange for an oath of

loyalty and the performance of services. In that sense, those people who were granted the land,

held the land which belonged to their lord, whom they owed service. Each lord would grant to

his followers (servants) similar rights over parts of the land that he had received, again in

exchange for loyalty and services. This type of land holding was pyramidical in nature since the

servants would give to their servants and so on. Hence, it operated as a continuous cycle of

holding land.12

Tenure became to be known as the relationship between the person who granted the rights

(grantor/lord) and the person who was given the rights (grantee/servants).13

All private land owners were either tenants or sub tenants. 14 There are two types of Doctrine of

Tenure; Freehold Tenure and Un-freehold Tenure.

In the suit of Mabo and Others v. Queensland15, the judgment was historic because it

completely overturned the idea of terra nullius and said that native title survived in many places,

even though the land had been taken by the Crown. They recognized the native title against the

crown.

In conclusion, the doctrine of tenure has the following element;

i. Individuals do not own the land but the true owner of the land is the crown. It is based on

the services that are granted to the crown or the lord. There is various overlapping interest over

the land. The ownership of the land is in a pyramid structure. It creates a system of lords and

12
Ade Renner- Thomas, Land Tenure in Sierra Leone: The Law, Dualism and the Making of a Land Policy, Author
House 2010. Pg. 16
13
http://www.merriam-webster.com/dictionary/tenure
14
Edward Hector Burn Cheshire and Burn's Modern Law of Real Property 8th Edition oxford university press 2011
15
Mabo and Others v. Queensland (No. 2) (1992) 175 CLR 1
tenants. The doctrine of tenure is not very practical at this age but its importance can be seen in

the landlord tenant relationship. It has evolved in different form such as lease and estate.

The Doctrine of Estates

According to Blacks Law Dictionary, an estate is the amount, degree, nature, and quality of a

persons interest in land or other property especially real estate interest that may become

possessory, the ownership being measured in terms of duration.16

In early days the word estate was used to ascertain a mans status or position in life by

discovering the particular type of tenure under which he held his land. The quality of his tenure

gave a clue to his status.

The Oxford Law Dictionary also gives an insight on the definition of what an estate is.

According to the Oxford Law Dictionary, an estate means the character and duration of

ownership of land. For example, an estate in fee-simple confers effectively absolute ownership

whereas a lease-hold estate confers ownership for a particular period which is not absolute.17

An estate in the land is a time in the land or the land for a time - land can therefore be split into

slices of time. The doctrine of estate gave expression to the idea that each land owner owned not

land but a slice of time in the land. The object of his ownership was, accordingly, an abstraction

called an estate. All proprietary relationships with land were to be analyzed on the consequences

that the ownership was of an intangible right (an estate) rather than ownership of a tangible thing

(land itself). At this point, property law changed from a reality to an abstract endeavor.18

16
Supra nt 10
17
Supra nt 9
18
Kevin Gray, Susan Francis Gray, Land Law, Oxford Press 2003 Pg. 16
This can be illustrated by the Walsinghams Case19 where it was held that the land itself is one

thing and the estate in the land is another thing, for an estate in the land is a time in the land, or

land for a time, and there are diversities of estates which are no more than diversities of time.

Estate as a Slice of Time

The Doctrine of Estates was left with the mandate to quantify the abstract entitlement that might

be enjoyed by any landlord within the tenant framework. This doctrine embounded an abstract

calculus of the estate in the land with each estate representing an artificial proprietary construct

divided between the landlord and the physical object of his tenure. In each estate, there must be a

time related segment. This was clearly stated by Lord Hoffman in the case of Newlon Housing

Trust V Alsulaimen20;

In English law, rights of property in land are four dimensional. They are defined not only by

reference to the physical boundaries of the property but also by reference to the time for which

the interest will endure.

There are two main characteristics in the Doctrine of Estates which forms the way the doctrine of

estates may be classified and understood. 21

1. Duration

An estate in the land is a time in the land or the land for a time. This clearly underscores

the fact that an estate always depends on time.

2. Time of Enjoyment

19
1573
20
1999 1 AC 313, HL
21
Supra nt 17
 This helps in classifying estates in the period that a person is going to enjoy the land as in

some cases the enjoyment may be passed to another person. For example, where a person

dies, he might then pass it another person. E.g. a Fee-Tail Estate

Types of Estates

Common law has broadly divided estates under two folds. This includes a lease hold estate and a

free hold estate.

A Leasehold Interest/Estate can be defined as claim or right to enjoy the possession and use of

property for a definite stated period as created within the written lease. In other words, this

interest only lasts for a fixed period of time or by other agreements between the land lord and the

tenant. Examples of these Leasehold Interests include fixed term interest, periodic tenancy

interest, periodic tenancy, tenancy at will, tenancy at sufferance, co-ownership/tenancy in

common and joint tenancy.

On the other hand, the Blacks Law Dictionary defines a Free-Hold Estates as An estate in land

held in fee simple, in fee tail, or for term of life; any real-property interest that is or may become

possessory.22A free-hold estate is usually held in free tenure. That is, for the life of that tenant

or of that of another person or for an unascertained period of time. This is an estate that has the

potential to endure forever. There are three specific types free hold estates and these include;

A Fee-Simple Estate; this is regarded as an estate which endured for as long as the original

tenant or any of his heirs survived.

22
Bryan A. Garner, Blacks Law Dictionary 8th Edition. (2007)
Secondly, there is what is referred to as the Fee-Tail Estate; this is essentially an estate that is

heritable (inheritable) only by specified descendants of the original grantee, and which endures

until its current holder dies without issue.

In addition to this, there is the third type of free hold estate which is a Life Estate. Here an estate

is determined by a particular life, it could be that of the grantee or that of another individual for

example the spouse. To further ones understanding, take the following example in account. If

property is vested in A for the life of B, the estate will last for as long as B lives. But if B dies

before A, the property reverts to B, the settler.

 2. TYPES OF LAND TENURE IN KENYA

The term land tenure is derived from the Latin word tenere which means to hold. The concept

of tenure describes the rights which different community members may have with regard to the

access and ownership of land and tree resources. Land tenure denotes the methods, by which

individuals or groups of people within a community or society acquire, hold, transfer or transmit

property rights in land. It is how these people enjoy the rights of access to land. Property rights

denote the right to the flow of benefits from a thing.

The Kenya Land Act of 2012 classifies land tenure systems in Kenya into the following basic

categories, namely:

i. Freehold,

ii. Leasehold,

iii. Such forms of partial interest as may be defined under the Act and other law, including

but not limited to easements and;

iv. Customary land rights where consistent with the Constitution.23

23
Land Act No. 6 of 2012, Section 5.
The act continues by mentioning that there shall be equal recognition and enforcement of land

rights arising under all tenure systems and non-discrimination in ownership of, and access to

land under all tenure systems.

i) Freehold Tenure

Freehold means the unlimited right to use and dispose of land in perpetuity subject to the rights

of others and the regulatory powers of the national government, county government and other

relevant state organs;

A freehold estate is one where the duration of ownership is indeterminate, which could be for a

lifetime of an individual or an unlimited duration. In most cases, for instance, real estate bought

is a freehold estate. Blacks Law Dictionary defines a freehold estate as a right of a title to land

that is characterized by two essential elements; immobility, meaning that the property involved is

either land or an interest that is attached to or has been derived from land, and inter-determinate

duration, which means there is no fixed duration of ownership.24

This tenure confers the greatest interest in land called absolute right of ownership or possession

for an indefinite period of time, or in perpetuity. It is the largest quantum of land rights which the

sovereign can grant to an individual. While it confers unlimited rights of use, abuse and

disposition, it is subject to the regulatory powers of the State. In Kenya, such interests are

24
Black Laws Dictionary
individually held under the Registration of Titles Act25, the Land Titles Act26, or the Government

Lands Act27. Freehold land is governed and introduced by the Registered Land Act28 of the Laws

of Kenya. It was introduced with the intention of extinguishing customary tenure and replacing it

with rights that would be individually and exclusively held.

The Act provides that the registration of a person as the proprietor of the land vests in that person

the absolute ownership of that land together with all rights and privileges relating thereto. A

freehold title generally has no restriction as to the use and occupation of that land but in practice

there are conditional freeholds which restrict the use for say agricultural or ranching purposes

only.

A freehold interest is also known as fee simple or absolute proprietorship.

ii) Leasehold Tenure

Leasehold is an interest in land for a definite term of years and may be granted by a freeholder

usually subject to the payment of a fee or rent and is subject also to certain conditions which

must be observed. This may for example be related to developments and usage, here lease

means the grant by the owner of land, with or without consideration, the right to the exclusive

possession of his or her land including the instrument granting it, and also includes a sublease

but does not include an agreement for lease.

Registration of a lease is covered in Part four of the Land Registration Act.

25
Cap 281 Laws of Kenya
26
Cap 282 Laws of Kenya
27
Cap 280 Laws of Kenya
28
Cap 300
Lessee means a person to whom a lease is granted and includes a person who has accepted a

transfer or assignment of a lease;

Lesser means a person by whom a lease is granted and includes a person who has accepted the

transfer or assignment of the reversion of a lease.29

A leasehold estate lasts for a definite period of time. A leaseholder has no power to alienate the

property (transfer it to others); only her own interest can be transferred if it is allowed by the

lease. Leasehold estates include;

i. Estate for years,

ii. Estate at will, and

iii. Estate at sufferance.

An estate for years lasts for a definite period of time. For example, a tenant signing a one year

lease has such an estate in years. An estate at will is one where a tenant can stay until either the

tenant or the owner terminates the possession. An estate at sufferance exists when the tenant

stays after the lease has expired, in which case, the landlord can expel the tenant at any time.

Leases are granted by the Government for public land, local authority for trust land and

individuals with freeholds. The maximum term of government leases is 999 years for agricultural

land and 99 years for urban plots. It is also common to find 33-year leases in respect to urban

trust land.

29
Kenya Land Registration Act, No 3 of 2012, Section 2.
A leaseholder can also apply for a renewal or extension of the lease more particularly if he or she

wants to re-develop the property and the lease period is about to expire or the remaining period is

not enough to recoup the investments. 30

iii) Communal Land Tenure System

Under the communal land tenure or customary tenure system, rights are based on communal

ownership of land where land is assigned to a clearly defined group of individuals or users.

These users may belong to a specific clan or ethnic community. Communal tenure refers to

unwritten land ownership by certain communities under customary law. Kenya being a diverse

country in terms of its ethnic composition has multiple customary tenure systems, which vary

mainly due to different agricultural practices, climatic conditions and cultural practices.

Resource utilization by these groups is regulated by the rules and guidelines based on the

traditional form of this regime, handed down from generation to generation.

This system was mainly used prior to the advent of the colonial system in Kenya. The system

was largely replaced by the Agrarian policy introduced by the colonial government in Kenya.

The Constitution of Kenya 2010 in Article 63 recognizes the existence of community land in

which it says 63(1) Community land shall vest in and be held by communities identified on the

basis of ethnicity, culture or similar community of Interest.

(2) Community land consists of

(a) Land lawfully registered in the name of group representatives under the provisions of any

law;

(b) Land lawfully transferred to a specific community by any process of law;

30
Standard Digital News; Differences between freehold and leasehold land.
(c) Any other land declared to be community land by an Act of Parliament;

Under customary law, ownership of land was vested in the community as a whole. Every

member of the community had access to the land. No individual could own, buy or alienate land.

A common elder of lineage and a council of elders normally had original and appellate

jurisdiction in land disputes respectively.

Adam Leach observation on the five dominant characteristics to most customary tenure systems,

as follows:

i) Tenure is family based and the head of the family holds rights on behalf of other family

members.

ii) Individual and group membership of the social unit of production or political community

have guaranteed rights of access to land or other natural resources.

iii) Rights of control are vested in the political authority of the unit or community.

iv) Private property rights accrue to individuals because of the investment of their labour in

exploiting resources.

v) Resources which do not require extensive investment are shared as common pasturage and

managed by the relevant political authority or people with appropriate jurisdiction31

31
See Adam Leach, Land Reform and Socioeconomic Change in Kenya in East Africa Journal of Peace &
Human Rights, vol 4, No. 1, 1988, pp. 41-69. see also M.P.K. Sorrenson, The Origin of European Settlement in
Kenya, Oxford University Press, Nairobi, 1968
Customarily, land did not belong to a particular individual but to God.32 To show the legal

appreciation of the fact of the existence of this type of tenure system is in the Njonjo

Commission of Inquiry into the Land Law System of Kenya. It stated thus in its 2002 report:33

For indigenous Kenyans, land also has an important spiritual value. For land is not

merely a factor of production; it is; first and foremost, the medium which defines and

binds together social and spiritual relations within and across generations. As one

Nigerian Chief put it, land belongs to a vast family of which many are dead, few are

living, and countless members are still unborn. Issues about its ownership and control

are therefore as much as about the structure of social and cultural relations as they are

about access to material livelihoods. This is one reason why debate about land tenure in

Africa always revolves around the structure and dynamics of lineages and cultural

communities rather than on strict juridical principles and precepts.

In theory the communal land tenure system is no longer significant with the advent of land

adjudication and consolidation programmes. Land adjudication refers to the process through

which existing rights in a particular parcel of land are finally and authoritatively determined. The

property regimes may, however, be functional at the local levels; it is significant here because it

is linked to the application of indigenous knowledge to the management of natural resources.

32
Among the Ogiek for instance, all land belonged to God. To the Kikuyu, the earth was considered a most
sacred thing with the soil being especially honoured. See also Odour, M. , Community Based Property Rights: A
Case Study of the Endorois Community, Baringo District, Draft Paper presented at in-house Workshop on
Community Based Property Rights and Sustainable Natural Resource Management in Kenya, RECONCILE, Nakuru,
9th August, 2000
33
Report of the Commission of Inquiry into Land Law System of Kenya on Principles of a National Land
Policy Framework Constitutional Position of Land and New Institutional Framework for Land Administration,
Government Printer, Nairobi, November 2002
As a distinct legal category, the communal tenure regime applies only to two categories of land

areas. The first are Trust Lands, formerly known as Native Trust Land Areas or Native Reserves,

where the land has not been adjudicated and consolidated. Trust land is the most extensive tenure

category accounting for 64 percent of Kenyas area in 1990. The second category involves the

aggregation of all pieces of land over which each individual or group has rights and the

allocation to the individual or group of a single consolidated piece approximately equivalent to

several units, that is, the process of consolidation.

Presently, most of the agricultural areas with high potential, such as Central and Western

Provinces have been completely adjudicated and registered. With regard to the areas with lower

agricultural potential, mostly arid and semi-arid parts of the country where the main land-use is

pastoralist, a different registration system was introduced in 1968. This was the system of the

Group Representatives Act.

Here, the registration of group ranches was regarded as a compromise between individual

ownership and the need for access to wider resources in the dry lands. Rights to utilize the

resources are distributed equitably among all group members who also have equal and

guaranteed access to the resource in question. The management of the resource is entrusted in a

team of representatives acting on behalf of the collective whole.

In Kenya, land adjudication has been an important process in the conversion of land held under

customary tenure into individual holdings.

 3. FREEHOLD ESTATES: FREEHOLD OF INHERITANCE

Estates can be classified either as freehold or leasehold.

The Land Act validates in Section 5 that freehold and leasehold are forms of land tenure.

A freehold estate is an interest in real property that does not have a fixed or certain duration. The

holder of such an estate is usually referred to as an owner.

All other possessory interests are considered to be leasehold estates. The holder of a leasehold

estate is referred to as a tenant, whereby he has possession of the property but not title. This

means that he does not own the property, but rather has a right to exclusive possession of the

property for a specified period. The maximum duration is fixed in advance so that the date of

termination is always predictable.

A leasehold is sometimes called an estate less than freehold because it is of an inferior quality.

The quantity of the land however is irrelevant.

Both types of estates can exist in the same piece of property at the same time. For instance, the

owner of a freehold estate may lease the property to a tenant, who then has a leasehold estate in

the same property.

Freehold Estates

Between these two types of estates that have legal capability, freehold estates are the largest.

Under Article 64 of the Constitution, freehold tenures are categorized as private land.

Section 3 of the Land Act describes the term freehold as:

 []The unlimited right to use and dispose of land in

perpetuity subject to the rights of others and the regulatory powers of the

national government, county government and other relevant state organs;

An estate of freehold, or libertum tenementum is defined to be the possession of the soil by a

free man.34

Historically, a freehold estate means that a person holds the estate in a free status. The term

freehold estate originated in the Middle Ages and originally referred to the holdings of a free

man under the English feudal system. An estate in land which could be held by a free man on

free tenure came to be known as a freehold estate.

In summation, the term freehold defines the outright ownership of property and land on which it

stands. A freehold estate in land is therefore where the owner of the land has no time limit to his

period of ownership.

It is worth noting that under the 6th Schedule, clause 8 of the Constitution,

[] Any freehold interest in land in Kenya

held by a person who is not a citizen shall revert to the Republic of

Kenya to be held on behalf of the people of Kenya.

Such non-citizens shall be granted a 99 year lease by the State.

Estates of Inheritance

34
Sir Tomlins T E, Granger T E; The Law Dictionary: Explaining the Rise, Progress and Present State of the British
law, Green and Longman (1835) Vol.1
Over the years, various types of freehold estates developed and it has been established that

estates of freehold are divisible into estates of inheritance and estates not of inheritance.

The principle distinction between these two types focuses on the succession of title, whereby in a

case where the property interest extended beyond the ancestors life, it was deemed to be a

freehold of inheritance. A freehold-not-of-inheritance is one whereby the estate ceases to belong

to the deceased or his estate after his demise.

It is interesting to note that the word fee denotes that the estate is an estate of inheritance,

meaning an estate capable of being descended to an heir. It also means that the estate is one

which might continue on forever.35

Estates of inheritance may further be divided into either inheritances absolute, (fee simple) or

inheritances limited (fee - tail).

The words simple and tail distinguished the classes of heirs who could inherit. A fee simple

descended to the heirs general, including collaterals. A fee tail descended to heirs special,

meaning to lineal descendants only.

Fee Simple Estates

35
Tom O. Ojienda, A Practical Approach Principles Of Conveyancing In Kenya
As was stated in the case of Walsingham36, He who has a fee simple in land has a time in the

land without end, or the land for the time without end.

In the case of Re Tuck37, the words "I give ... to my son ... for and during his natural life, and his

lawful heirs after him, subject, nevertheless, to the provisions and conditions herein contained ...

namely, he ... shall have no power to sell, nor any right to dispose of the above real estate ... but

shall transmit to his lawful heirs, unimpaired" were held to convey a fee simple estate to the son

by application of the rule in Shelley's Case.

There are two basic types of fee simple estates;

1. Fee Simple Absolute

Fee simple absolute is usually just called fee simple. Fee simple absolute is the greatest estate

that can exist in land, the highest and most complete form of ownership.

A fee simple estate is freely transferrable from one owner to another. When a fee simple owner

transfers the title by deed it is presumed that the new owner, the grantee, receives a fee simple

absolute estate, unless the deed expressly included language that would indicate the grantees

intent to confer a lesser estate.

Fee simple absolute cannot be discussed without explaining the Shellys Rule; Wolfe v.

Shelley,38 generally known as Shelley's Case, the rule that made it famous had already been in

existence for approximately 150 years. The rule was enacted to close a tax loophole that allowed

people to circumvent an inheritance tax known as a relief. Any person who received property by

36
(1573),
37 (1905) Ontario Law Reports 309
38
(1581) 1 Co. Rep. 93b, 76 Eng. Rep. 206 (C.P.)
means of inheritance was required to pay the relief to the feudal lord. Attempting to save their

clients money, scriveners (drafters of written instruments such as deeds and wills) came up with

a plan to allow a person who would otherwise have been an heir to receive property by means of

a conveyance rather than by direct inheritance. The judges quickly saw through this attempt to

circumvent the tax law and adopted the rule to close the loophole. As stated in Shelley's Case,

the rule held that "when the ancestor by any gift or conveyance takes an estate of freehold, and in

the same gift or conveyance an estate is limited either mediately or immediately to his heirs in

fee or in tail, that always in such cases, 'the heirs' are words of limitation of estate, and not words

of purchase" (statement of defendant's counsel, probably Sir Edward Coke).

The effect of the rule was to frustrate the intent of an owner of real property who transferred her

estate to another by gift or conveyance and, by the same instrument, gave a remainder to the

heirs of the transferee. In that circumstance the rule would ignore the intention of the owner and

give the transferee the estate in fee as opposed to a life estate. For example, in the conveyance,

"owner of Blackacre conveys it to X for life, remainder to X's heirs," X would not just get a life

estate as the owner desired; instead, due to the rule, X would receive both the life estate and the

remainder (intended for X's heirs) in fee simple absolute as the rule worked a merger of the life

estate and the remainder. Consequently, the rule effectively changed the conveyance to "Owner

to X and his heirs."

As was stated in the case of Walsingham39, He who has a fee simple in land has a time in the

land without end, or the land for the time without end.

39
(1573) 2 Plowd 547, [1573] EWHC KB J99, 75 ER 805
In addition, a fee simple estate may be categorised as an estate of inheritance, as it is, as the

name suggests, inheritable and can be passed on to the owners heirs when he or she dies.

A fee simple estate has no set determination point ant theoretically can be owned forever by the

title holder and his or her heirs.40

2. Fee Simple Defeasible

Certain fee simple estates may have particular qualifications attached to them when transferred

from one owner to another. For example, in a deed, the grantor may specify that the grantees

estate will continue as long as a certain condition is met, or until a certain event occurs.

This type of qualification or condition creates a fee simple defeasible estate, also known as a

qualified or conditional fee.

The owner of a fee simple defeasible holds the same interest as the owner of a fee simple

absolute, except that the defeasible owners interest is subject to termination.

There are two types of defeasible estates. The distinction between them is quite technical and

depends on the specific language used in the deed in which the estate was created. Nevertheless,

their basic principles are;

Fee simple determinable: the estate ends automatically if the condition is violated and

the property reverts back to the grantor without any legal action to be taken.

Fee simple subject to a condition subsequent: does not end automatically when the

condition is breached. The grantor must take legal action in order to terminate the estate.

40
Real Estate Principles, Rockwell Publishing, pg. 51-52
Defeasible estates of either kind are however uncommon nowadays. The overwhelming majority

of fee simple ownerships are fee simple ownership interests.

Fee-Tail Estates

The term fee tail is an old feudal expression for a title to real property which can only be passed

to ones heirs of his body or certain heirs who are blood relatives. In a situation where the blood

line ran out, the title would revert back to the descendants of the lord who originally gave the

land to the title-holding family.41

Entailed interests lasted for as long as the original grantee or his lineal descendants survived, as

it was designed to keep the land within the direct family and not subdivided. This meant that it

could not be transferred to anyone outside of the family.

A fee tail estate, therefore represents an interest in land which endures as long as the original

grantee or any of his lineal descendants remain alive, this providing an ideal means of retaining

dynastic land within the family.

Consequently, if the original tenant were to die, leaving no relatives except a brother, a fee

simple would continue, but a fee tail would come to an end.

In certain situations it could also be limited to male or female descendants.

Under common law, words of limitation were necessary to create a fee tail. This included the

word heirs, as well as what were called Words of Procreation. This referred to words that

indicated that the heirs were to be restricted to the grantees own body. Examples of such words

41
legal-dictionary.thefreedictionary.com/Fee+Tail
of procreation would be To A and the heirs preceding him or To A and the heirs apparent

from his body.42

4. FREEHOLD NOT OF INHERITANCE

Free hold estates not of inheritance are divided into two categories;

A. Life Estates for the life of Grantee,

B. Pur Autre Vie.

A. Life Estates for the life of Grantee

42
Hepburn S J; Principles of Property, Second Edition, Psychology Press, pg.53
A life estate is created or is an interest in land that lasts only for the life of the holder. Thus the

holder of a life estate cannot leave the land to anyone in their will because their interests in the

land do not survive the person43. The holder of a life estate has full rights to the land or to

transfer their interest during their life time, but they must refrain from engaging in waste. Waste

used in this context refers to activities that would prevent the next person in line from putting the

property to full use. In King V Hawley44, a testator gave a life title in all his property to his sister.

The will provided that she could use all the proceeds of the property for her comfort and support

but whatever was left was to go to the remainders interest. The life tenant transferred some of

the property to friends without consideration and some with inadequate consideration. The life

tenant was held to have fraudulently attempted to defeat the remainders interest.

A life estate is the final form of a freehold estate in existence.

Waste can be categorized into;

i. Affirmative waste- This occurs when the life tenant destroys property or exploits the

natural resources. It is also known as voluntary waste.

ii. Permissive waste- this occurs when the land is allowed to fall into disrepair.

iii. Ameliorating waste- This is when the principal use of the land is substantially changed

so as to increase the value of the land45.

43
Land law 7th edition, J G Riddell
44
(1952) 113 C.A 2d 534
45
The essentials of real estate law, Lynn T Slossberg
A life estate is created by a deed that gives the land to a person for life and identifies what should

happen to it after that person dies. For example a deed stating that land would go to A for life

then be passed to B, gives A valid life estate and B a remainder. A could use the land during his

life time and even sell his interest to a third party but that third party would have to surrender the

land to B upon As death.

A remainder is a future interest created in a grantee46 that is capable of becoming a present

possessory estate upon the expiration of a prior estate. A reminder must be expressly granted in

the same instrument that created the preceding estate.47

Categories of Remainders

The law recognizes two broad categories of remainder,

i. Vested

ii. Contingent

i. Vested Remainders

This category recognizes remainders who are known or specified by the document creating the

life estate.

Example: If N deeds land to P for the term of his life, remainder to O and his heirs, O has

totally vested remainder upon the death of P. Hence only O and his heirs have any interest in the

property.

Vested remainder can also occur in instances where the remainders interest is subject to

deprivation. In such a case, the remained is said to have vested interests subject to divestment.

46
A grantee is a person to whom a grant or conveyance is made.
47
Gilbert law summaries, Jesse Dukeminier, 2002
Example: R vests land to S for the term of his life, remainder to the children of S. S has one son,

T, and is married to B. T thus has a remainder subject to how many children are born to S 48.

ii. Contingent Remainder.

A contingent remainder exists where the taker of the interest is unascertained or the interest has a

condition precedent to its existence and will not pass automatically49.

Example: To A for the term of his life, remainder to the children of B (Who is a bachelor with no

children). This creates a situation of uncertainty on the remainder.

To A for life, then to B if married. This creates a condition that needs to be fulfilled before the

property interests can be passed down from A to B.

Rights and Responsibilities of the Life Estate Owner

1) The life owner has the right to occupy, posses and use the land until the termination of

the life estate.

2) The life estate has the right to sell the life estate interest if not bared by the legal

instrument that created the life estate.

3) The life estate owner is entitled to all income and profits from the life estate interest such

as rent on the property.

48
California Real Estate Law, William H. Pivar & Robert Bruns.
49
Real Estate Law, Marianne Jennings.
4) The life estate owner is responsible for paying the mortgage, taxes and insurance on the

property.

5) It is the responsibility of the life estate owner to maintain and repair any property on the

life estate.

Rights of the remainder

The remainder can sell his or her interest in the property even before the life estate terminates if

permitted by the legal document that establishes the life estate interest.

B. Pur Autre Vie

This is a life estate that is measured by the life of another or someone other than the owner of the

life estate50.

Creation of Pur Autre Vie

A life estate pur autre vie is created in the following ways;

a. Through the sale of ones life estate.

50
Texas Business law
This results when the life estate sells his interests in the property to a third party. In essence the

sell creates a pur autre life estate since the seller can only sell what he owns, i.e. the life estate

that is measured by the term of his life.

b. Through Inheritance.

This occurs if A conveys his life estate to B who later dies before A. The life estate created by

the conveyance does not terminate since it is dependent on As life term. As a result the estate

passes down to Bs children and can only be terminated by the death of A.