FREEHOLD

1.0          INTRODUCTION.

2.0          OBJECTIVE

ELEMENTS OF A FREEHOLD INTEREST IN LAND

ESTATES IN FEE SIMPLE

ENTAILED ESTATE

4.0          POSITION OF A TENANT IN FEE SIMPLE

5.0          CONCLUSION

6.0          SUMMARY

7.0          TUTOR MARKED ASSIGNMENT

8.0          SUGGESTED FURTHER READING / REFERENCES

STATUTES

RIGHTS AND INTEREST IN LAND FREEHOLD

INTRODUCTION.

The expression “Freehold” is defined as an estate in land held in fee simple, fee tail or for term of life or any real property interest that is or may become possessory “fee” means the estate will endure until the person entitled to it died intestate and left no heir. The word “simple” indicates that the fee was one which was capable of passing to heirs unrestricted. This is in contrast to a fee tail or an entailed interest which is a freehold which on the intestacy of the owner passes only to the particular class of lineal descendants specified in the instrument of creation. General inheritability is the hallmark of a fee simple. In recent times, the doctrine of heirship on intestacy has been abolished except in respect of entailed interest. Where an owner died intestate, the land is held by the administrator on trust for sale for distribution among the nearest relatives.

OBJECTIVE

The objective of this module is to acquaint students with various rights and interest in land with a view of appreciating their peculiarities.

ELEMENTS OF A FREEHOLD INTEREST IN LAND

Freehold estates are generally categorized as follows

• Estates in fee
• Estates in fee tail
• Estates for life

ESTATES IN FEE SIMPLE

• The fee simple absolute in possession is the largest estate known to English law “fee” as earlier explained means the estate is inheritable and will last until the death of a grantee or alienee intestate and without an heir. “Simple” means it is not restricted to a particular class of heir. Where there are no lineal heirs, collateral heirs are capable of inheriting. “Absolute” means the owner has unrestricted or absolute right to deal with the estate as he deems fit either inter vivos or by Will

The owner may however opt for a conditional fee simple which is dependent on the happening of a specified event. e.g. “To Osahon absolutely on his graduating from the National Open University”.

The implication is that for Osahon to acquire absolute ownership of the land, he must first graduate from the National Open University.

• “absolute” is not defined in the law of Property Act 1925, but it evidently excludes an estate that is defeasible either by the breach of a condition or the possibility that on the happening of a specified event, it would pass to a new owner. The term “absolute” according to Preston on Estates vol. 1 p. 125,

the epithet is used to distinguish an estate extended to any given time without any condition to defeat, or collateral limitation to determine the estate in the  mean time, from an estate subject to a condition or collateral limitation. The term absolute is of the same significance with the word pure or simple, a word which expresses that the estate is not determinable by any event besides the event marked by the clause of limitation

• “in possession” means the holders is entitled to the earnings from the estate. It is not necessary for him to be in actual physical possession.

However, a fee simple remains a fee simple inspite of the existence of the following:

• where there exists in the land, third party rights such as charges leases, mortgages licences and profits a prendre
• the law of nuisance which prohibit the owner from using his land or permitting it to be used in such a manner to constitute annoyance to others
• statutory restriction on the user of land or exploitation authorized by statute

The following expressions convey a fee simple estate e.g

“To Osahon in fee simple” , “To Osahon and his heirs” , “To Osahon for ever”

ENTAILED ESTATE

An entailed estate is an estate with specific restrictions. e.g

“To Osaro, her husband and daughter” if this family group should become extinct, the land reverts to the done.

The Estate could also be restricted as:

“to Osahon in tail male” or “to Oshon in tail female”.

LEGAL POSITION OF A TENANT IN FEE SIMPLE

A tenant in fee simple has extensive proprietary rights in the  subject matter of his interest. According to Lord Wilberforce in Commissioner for Railways v Valuer – General (1974) AC 328  at 351 at most the maxim is used as a statement, imprecise enough of the extent of the rights when  _ _ _ he said “prima fascie” the owner  of the land has everything under the sky down to the centre of the earth.

This is however subject to statutory restrictions and common law boundaries.

In Nigeria, management and control of land is vested in the various states’ Governors. With the advent of the land use Act right to deal in or transact in land is mandated to be within the confines of the provisions of the Land Use Act and the term of years granted to owners of land is 99 years subject to renewal and what is alienable is the unexpired term of years granted under the right of  occupancy.

The issue of land ownership under the Land Use Act 1978 has been extensively dealt with in module 1 and reference should be made to it.

CONCLUSION.

In Nigeria with the advent of the Land Use Act 1978, all issues relating to land is subject to the provisions of the land Use Act  which extinguished the traditional method of land holding as earlier discussed.

SUMMARY

• Freehold denotes an estate that is held in fee simple, fee tail or a term life
• Fee simple absolute in possession is the largest estate known to English Law
• An entailed estate is an estate which is subject to restrictions
• a tenant in fee simple has extensive proprietary rights in the subject matter of his interest subject to statutory restrictions and common law boundaries
• In Nigeria with the advent of the Land Use Act 1978 the concept of freehold interest or ownership of land in perpetuity has been replaced with the grant of a right of occupancy of land for a term of 99 years subject to renewal
• Right over land is subject to statutory regulation in Nigeria. Ownership of land can be revoked on grounds of public policy. The owner of such land is however is entitled to be paid

TUTOR MARKED ASSIGNMENT

Discuss the concept of freehold interest in Land.

SUGGESTED ANSWERS

• Explain the concept of freehold by defining terms such as “fee”, “Simple” “absolute in possession”.
• Explain the categories of freehold estate which include fee tail, fee simple and estates for life

SUGGESTED FURTHER READING /REFERENCES

Cheshire and Burns Modern Law of Real Property (London: Butterworths 1982).

Elias Nigerian Land Law (London: Sweet & Maxwell, 1971)

STATUTE

Law of Property Act 1925 Land Use Act 1978