All about Land

1.1 Meaning of “Land”

In common speech, we know very well what “land” means. It is one of those words that hardly need definition. (What is “dog” or “cat?” )

If we attempt to define it, we may in some way distort or restrict the meaning which we know well without definition. (If we define “dog” as a four-footed animal, does the term include a horse or a mouse? If we use size to constrict the meaning, how do we include an Irish wolfhound, which can be as big as some breeds of pony, or cubs of some breeds of dog that can be as small as mice?)

We could define “dog” in technical terms as: “The dog (Canis lupus familiaris[5] and Canis lupus dingo[6][7]) is a domesticated form of the gray wolf, a member of the Canidae family of the order Carnivora.” You and I, and the ordinary reader, are left thinking: “I don’t know what that definition means; however, I do know what a “dog” is; I can recognise it when I see it. A “dog” is a “dog.”

Similarly, “Land” is “Land.” We know it when we see it. We can distinguish it easily from other assets such as “Money,” “Gold,” “Stocks and Shares,” “Buildings,” and so on.

1.2 Clarifying the meaning of “Land”

We can do well, however, to offer some clarification to the meaning of our word.

First of all, consider the fact that we often distinguish “land” and “sea.” Nevertheless, we accept that land can sometimes be covered by sea, and we sometimes refer to ”land under the sea.” It is as well to be content, therefore, that land can be either under water or not. Land that is not under water, we can, when we we need to be explicit, refer to as “dry land.”

1.3 Land and Buildings

Secondly, let’s distinguish between “land” and “buildings.” Everybody (except lawyers, sometimes) knows that “land” and “buildings” are two separate and distinct things.  If we wish to refer to both of these together, (for they share certain attributes, such as being the subject of ownership), we can refer to them as “real property.”

“Real Property,” or “Realty,” means tangible, immovable, property. It does not derive from the word “real,” meaning “actual reality,” but from “royal” or belonging to the king. In Feudal Systems, all the land and buildings in a state were considered to belong to the king, lesser beings holding “estates” in land from the king. (We discuss “Estates” and “Interests” below).

1.4 Definition of “Land” as including “Buildings” is of Limited Application

If a legal definition includes “buildings” within the definition of “land,” (as occurs in Ireland’s Registration of Title Act), this can only apply within a limited context and where reason permits. It is like where a peson writing about beverages says, “Coffee includes Cocoa and Tea.” He does so in order not to have to repeat the three words over and over. We will know well that he means that Coffee will include Tea only where the context requires and reason permits. Where he talks about Coffee Beans, we all know immediately that he does not mean to infer that there are Tea Beans. 

1.5 Interests in Land

Thirdly, let us distinguish between “land” and “interest in land.”

Lawyers sometimes use phrases such as “Freehold Land,” or “Leasehold Land,” as if there are two (or more) kinds of land, a Freehold kind and a Leasehold kind (and other kinds). In fact, both of these terms can refer to exactly the same piece of land. To be absolutely semantically correct, there is no such thing as either “Freehold Land” or “Leasehold Land.” Rather what we have is “a Freehold Interest in a piece of Land,” and “a Leasehold Interest in a piece of Land.” Indeed, if we have a Leasehold Interest, we must, of necessity, also have a Freehold Interest in the same land, since, to have a Lease, we must have a landlord as well as a tenant.

An Interest in Land is what an owner owns. A Freehold Owner  owns a Freehold Interest and a Leasehold Owner owns a Leasehold Interest. Whenever a person tells us that he owns land, we can legitimately (if tiresomely) ask what Interest in the land he owns.

The following are some Interests in Land:

• Freehold (which lasts forever),
• Leasehold (lasts for a period of years),
• Sub-Leasehold (a period of years granted as a sub-lease by the owner of a Lease),
• Periodic Tenancy (e.g., weekly tenant, monthly tenant, yearly tenant),
• Right of Way (a right to pass over land, usually by a defined route, with or without animals, on foot or in a vehicle, as defined in the grant of the right),
• Grazing Right (a right to put one’s grazing animals on the land, e.g., horses, cattle, sheep, geese, as defined in the grant of the right),
• Mining Right (a right to excavate and remove material from the land),
• Right of Light (a right to receive unrestricted daylight from the land, i.e., not to have the light blocked by buildings, again as defined in the grant of the right),
• Watering Right (a right to allow one’s cattle or other animals onto the land to drink water from a source of water on the land, or to take water from the land in barrels or through a pipe),
• etc.

1.6 Estates

 A term in relation to property (real or personal) that is often confused with “Interest” is “Estate.”

An owner (let’s call him “John”) could leave his land (but actually, of course, his Freehold or Leasehold or other Interest in Land) to his spouse for life and after her death to one or more of his children. In that case, his spouse would inherit a Life Estate in the (Interest in the) Land, and his children would inherit a Remainder Estate (in the Interest) to come into effect on the death of the spouse.

John had held the entire Freehold or Leasehold Interest, not just a Life Estate or a Remainder Eatate. If he had held just a Life Estate, he would have had no say in what would happen to the Land after his death. If he had a Remainder Estate, he would not have been in Possession of the Land until the Life Tenant died and his Remainder Estate, as they say, thereupon “came into Possession.”

1.7 Historical Confusion of Terminology

Laymen are not the only people to get confused when it comes to Interests and Estates. In fact, lawyers are often quite confused, as were the people who brought the Feudal Laws to England; so the English Law itself can be quite  confused in these matters.

Under the Feudal Law, all land belonged to the king, who would grant an “Estate” in land to a Baron or Lord, who would sub-grant an Estate to his subsidiary.

When the king granted an Estate to a person “and his heirs,” he created a Freehold Interest, which would last forever. When he granted an Estate to a person for his life, he, in Feudal terminology, also create a Freehold Interest, but one which would last only for the life of the grantee. Now, when we apply logic to the situation, we see that in logical terms, the grant for life did not create what we can conceive as a Freehold Interest, nor did it create any Interest. The Freehold Interest already belonged to the King. What this Grant created was a Life Estate in the Freehold Interest, the Remainder Estate remaining in the King’s ownership.

For lawyers, it was reasonably satisfactory to use terminology that failed to distinguish clearly between “Estate” and “Interest,” but in the Information Age, computer systems require clear definitions, since a computerised system cannot be effective unless it is logically coherent.

1.8 Parcels of Land

It is a bit infra dig to refer to a “piece of land.” The correct term for a piece of land, whatever the size of the piece, is a “Parcel of Land.”

1.9 Summary of this Chapter

In summary, we are correct to understand a Parcel of Land to be:

• A piece of the solid surface of the earth, of whatever size;
• Whether under or over water.

An owner does not own land, but rather he owns an Interest in Land. An Interest can be held for the duration of an Estate, e.g.,

• an Estate lasting for the entire Interest, “a full owner,”
• an Estate for Life, (the owner of which is called a “life tenant),” or
• a Future (or Remainder) Estate, (to take effect when the life tenant dies, thereby bringing the life estate to an end.)