Law of Real Property 1 2018-2019

Lecture 2

• We start our class with a historical overview. We do this for two reasons: 1. This will help put much of the information into context. 2. Some of the cases and principles are still relevant. Imagine my surprise in Law School when one of the first cases on the Landlord and Tenant worksheet was from the 1650s. 1066 and all that

• https://www.youtube.com/watch?v=Owf5 Uq4oFps Ted-Ed How the Normans changed history (0:03 – 0:22) • The new king decided that all of England would belong to him. He therefore took away the title from the previous owners. If he liked them, he gave it back, and if not, he found new people. In all cases, however, the person only held the land at the King’s pleasure. He could take it away again at any time. This “holding” was called “tenure”. • https://www.youtube.com/watch?v=txA 48AcJNmg (The feudal system and the domesday book, 1:09 – 3:33) (7 minutes total) • There were many different types of tenure including frankalmoigne (to the Church), freehold, copyhold and knight's service. • Tenure could be lost by: • Forfeiture: where the tenant breached the conditions upon which he held, the tenure could revert to the Crown or grantor. For example, where the tenant committed treason, he might simply be beheaded, but, in some cases, he could also be stripped of lands and title so that his descendents would also pay the price. • Escheat: where the tenant died without an heir, or no heir could be found, then the land would pass back to the Crown or grantor.

• https://www.youtube.com/watch?v=txA 48AcJNmg (The feudal system and the domesday book, 3:33 – 3:58) • Over the next few centuries, feudalism diminished eventually died a natural death, not just in England but also in the rest of Europe. • First in 1290 the Statute Quia Emptores was passed which prevented subdivision of land. • The Black Death wiped out about one third of the population, making labour more valuable. Also, increased foreign trade meant that more money was in circulation. • The last nail in the coffin came in 1660 when the Abolition of Tenures Act converted all remaining tenures into free and common socage (freehold).

Was there feudalism in the Caribbean? In 1492 Columbus sailed the ocean blue

The rest of Europe followed over the next three centuries. • So here’s the question that has plagued many law students over the years (though maybe not anyone else)... • Did feudalism exist in the Caribbean? Does all the land in Barbados belong to the Crown? • These are the dates that the English settled their original Caribbean territories: – Anguilla 1623 – St. Christopher 1623 – Barbados 1628 – Nevis 1628 – Antigua 1632 – Montserrat 1632 1660 ______– Virgin Islands 1672 – Belize 1899 (January 1)

• As you can see, the BVI and Belize were settled after the Abolition of Tenures Act. • But Anguilla, Antigua, Barbados, Montserrat and St. Kitts & Nevis were settled before the Act passed. • When the colonists settled the Caribbean, they brought all the laws of England with them that had been enacted up to that time. This is known as "reception" of the laws. However, once they had established their own local assemblies, the news laws made in England did not apply unless expressly stated.

• At the time the colonies was established, the Quia Emptores had been passed, but not the Abolition of Tenures Act. • On the other hand, as stated earlier, most types of tenure had already died a natural death, so it may be argued that only free socage remained. However, the debate rages on.

• Some historians claim that Sir William Courteen was given title to Barbados so that the first settlers were his tenants. But then the King took it away from him and gave it to the Earl of Carlisle instead. • Did the Crown own Barbados as proprietor, or was it merely sovereign? • The same situation applied in the other islands where were no other European powers.

• What about the territories which were ceded to or conquered by England but which had previously been held by other European powers?

• The other European countries all had the concept of dominion rather than tenure, so landowners in Jamaica, Trinidad, St. Lucia, etc, under the French and Spanish actually owned their land outright. There is no indication that when the English came, the Crown took away these proprietary rights and transferred all title to the Crown.

• Jamaica 1661 common law; 1728 statute law • Dominica 1763 • St. Vincent 1763 • Grenada 1832 • Tobago 1848 & 1889 • Trinidad 1848 • British Guiana 1917 common law; no general reception of statutes • St. Lucia 1957, common law and statute law partly received

• Although the debate still rages as to the historical position, the modern position is fairly settled. Statute in most islands states outright that land is to be treated as though it is owned outright. So the Barbados Property Act states that feudal tenure is abolished and a fee simple is treated in the same way as absolute possession. Statute (the Succession Act) also provides that where a person dies without kin, his property may revert to the Crown as bona vacantia. This is different from escheat, and applies to both real and personal property.

• Is it still a relevant topic? Well, the issue formed the basis of a lawsuit as recently as 1992, in Mabo v Queensland. In that case, however, the question about whether the Crown held dominion of the colony was answered with a decisive "NO!" The decision might have gone differently a hundred years ago, but modern courts are more sensitive to indigenous rights.