Disclaimer: This work has been submitted by a student.This is not an example of the work produced by our Law Essay Writing Service.It is important to note that this was curtailed in the Republic of Ireland by the Landlord and Tennant (Ground Rents) Act 1978 and in Northern Ireland by the Property (NI) order 199717 As well as the obligations of service created under freehold tenure there were rights created that impacted on ownership such as ‘homage’ which included court attendance as well as an oath of fealty and ‘Wardship’, which allowed the lord to be financially compensated when the heir, for whom the land was held, reached his majority and took possession of the land.
One of the few methods which existed under feudal law for the disposal of land was called substitution, the most basic explanation of which would be that a lord could substitute his own position in the pyramid with another, without creating further tiers in the pyramid through subinfuedation, but by granting them his own tenure, removing himself from the pyramid in relation to that particular piece of land21.
Other interests in land were created as well under tenure but they were held to be sometimes something less than estates22 and sometimes, as in the case of Northern Ireland something engineered to suit the political climate of the times.
It was introduced to Ireland during, and in the centuries after the Norman Conquest.4 The conquest in itself resulted in all land ultimately vesting in the King and being governed through the concepts of tenure and estate5 and for this fact alone it would easy to agree wit the above assertion.
During Ireland’s early history under Norman rule, the feudal system of tenure ‘became not only a system of landholding, but also a system of government and provision of revenue.’6 The tenure system involved a process of grants and sub grants and further sub sub grants, also know as subinfuedation, in return for services such as tenures in ‘chivalry,’ ‘socage’ and ‘Frankalmoign.’7 Therefore, in this way, ‘tenure’ can be seen as the circumstances upon which the land is held and ‘estate’ as the length of time you may hold land for.8 Consequently therefore it is only possible to own an estate or interest in land.9 ‘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.’10 This form of land granting created a type of ‘pyramid’ structure with the King at its peak in complete ownership and all land being held for, or off him by his tenants in chief who then in turn sub granted to others11.
Any type of an estate in land can be divided into two general categories, these are ‘freehold’ and ‘leasehold,’ both of which derive from feudal law and are capable of creating differing types of entitlement, the major difference in the two is the tenet of seisin which, although there is no clear explanation it relates to the link between tenure and estate but encompasses ideas of responsibility and ownership in that may people can have an interest in land but only one will own it.
The former of these two categories will be broken down into its three main types, namely, fee simple, fee tail and life estate1 before exploring the extent that it is possible to claim ownership of a freehold estate.
Words such as ‘until’, ‘so long as’, ‘whilst’ or ‘during’ indicate a determinable fee simple.
Where it is held void the whole grant fails35 A fee simple qualified by a condition subsequent can be difficult to distinguish from a determinable fee simple; in Re Kings Trust36 Lord Porter M. said the difference was ‘little short of disgraceful to our jurisprudence.’ It is where land is granted but can be lost upon the occurrence of that subsequent condition but if that subsequent condition is in opposition to public policy such as alienation, Re Dunne’s Estate37, or uncertainty as well as public policy as was found in Re Johnston38 it will be held void.
In this case the proper words of limitation were not used whilst transferring a fee farm grant, initially the proper phrasing was ‘to X and his heirs’.
The Conveyancing Act of 1881 purportedly removed the necessity for the inclusion of ‘and his heirs’ with the replacement of ‘in fee simple’ but unfortunately neither phrase was included resulting in the transfer of a life interest only.