THE COPPERBELT UNIVERSITY

SCHOOL OF HUMANITIES AND SOCIAL SCIENCES

NAME: ALEX MAINZA MUPILA

THE DOCTRINE OF TENURE

The word tenure, from the Latin tenere (to hold) which implies that land is held under certain
conditions which are set forth. From the time of the Norman Conquest in 1066, the English
land law adopted the continental system of feudalism, which is the hierarchy dominated by a
sovereign or a chief of that particular place and it was based on mutual promises of protection
and military services. 1In 1066-87 William the conqueror regards the whole England as his by
virtue of the conquest and granted land not by out and out transfer but to be held on him as
overlord and that every person holding land of the crown might then grant that land to
another person (sub infeudate) to hold for him in return for services. The feudal pyramid was
constructed and it was based on land tenure system which was the tenure of land identifying
the conditions on which land was held. tenure basically become the main bond which was
holding society together and the lord protected any person who held the land of him. This
was developed by the common law that entailed that land in England is held of the crown and
that the subjects may hold the land directly or indirectly of the crown. According to the
doctrine of tenure, all land in England was held of the crown which was either directly or
indirectly on one or more of the other various of tenures. The doctrine of tenure system had
an ideal of feudalism which is simply a state of society in which the main social bond is the
relation between the lord and man, and the relation implied that the lords protected and
defended man and man rendered services and reverence which included services in arms. this
personal service is insuperably involved in a proprietary relation in that the man holds of the
lord and the man’s service as a burden on the land and the lord has an important right in the
land. The system was a negation to liberty which implied subordination and meant that one
man was inferior to the other. As time went by the process of sub-infeudation rose which
brought more complication and confusions in land tenure such that it was not easy to know
the person who owned the land at that particular time because of the long hierarchy of the
lords and overlords, tenants and sub tenants it created. however, in 1925 major land law
reforms were passed which brought about a lot of changes. a number of acts were passed
such as the Quia Empotores of 1290, Tenure Abolition Act of 1660 and the laws of property
Act 1925 were enacted which brought about a change in the land tenure system.
1 M.p Mvunga, land law and policy in Zambia Zambian papers No.17
2 E.M. Bum (1986), land law 5th edition
Quia Empotores of 1290

This Act was enacted to abolish the practice of sub-infeudation. The importance of this statue
is that it altered law in two particular aspects. 2Firstly, it settled the controversy and allowed
every freeman the liberty of alienating his land without the consent of the overlord and
secondly it encouraged substitution of the tenant, it enacted that every alienee should hold
land of the same lord of whom the alienor previously held. This Act set as landmark
legislation in the history of land law in England as it led to the gradual disappearance of the
numerous petty landlords that had raised during that time.

Tenure Abolition Act of 1660

Tenure depended for its form on a particular service owed by the tenant and the tenures
existed in the following modes

i. free tenures

ii. customary tenures

The free tenures consisted of knight service, spiritual service, and free socage and the
important free tenure under feudalism was the knight service which was based on military
service in return for the grant of land. This was abolished by the Tenure Abolition Act of
1660.

Laws of Property Act 1925

This Act brought about the swing from non alienation to a laisses-fair policy which was
ushered in by the Law of Property Act 1925 which completely altered the lifestyle and social
outlook of the Britons. Thereafter people found it easy to dispose of their landed property and
move from one part to the country to another or from one part of the city to another, thereby
making way for the mobility of people and labour at the same time, this mobility of labour
paved a way in the number of professionals, artisans, trade men and others in the society.
Another significant change brought through the instrumentality of land law was the
breakdown in the old rigid concept of social stratification. There were for example, the
commoners, the middle class, the upper middle class and the upper class which was not easy
to climb from one social group to a higher one. But with the easy alienability of land the

3J.G. Riddall (1986) land law 4th edition London Butterworths

The Doctrine of Estates

This doctrine 3 delt with the conditions on which land was held. It is concerned with the
length of time for which land is held, this provides a subject cannot own land, but can merely
own an estate or interest in it, authorising him to hold it for some period of time. Because
land in England is held of the crown, English law has developed the concept of the estate
which has its emphasis on the right to possession. An estate is an interest in land for a defined
duration, it is an abstract entity which represents the extent of a person's rights to possession.
there are two principal categories of estates namely freehold and estates less than freehold or
leasehold. A freehold estate is one whose duration though fixed is uncertain whereas an estate
less than freehold or leasehold is one for a period whose duration is fixed or is capable of
being fixed.

Freehold Estates

There were three freehold estates at common law namely, fee simple, fee tail and life estate
and all the three had one common thread which is the duration which was fixed but uncertain.
In Zambia, the English land law was imported into the Northern Rhodesia territory by
colonial administration. While African customary law regulated land under customary tenure,
the land in crown land that was set aside for white settlers was regulated by the English land
law, the interest created in crown land were those known to English law which were estates
and tenures which could either be freehold or leasehold. These freehold estates and leasehold
estates continued to exist in Zambia up to 1975, when by virtue of the Land (Conversion of
Titles) Act, all freehold estates were converted to a renewable leasehold estate of 100b years
effective 1st July 1975.

Estates less than Freehold (Leasehold or term of years)

The leasehold estate or lease was originally not recognised as an interest in land but only the
estates of freehold were recognised as interest in land and were protected by the common
law. These leaseholds were brought into the estate system in the 16th century by which time
they were recognised as legal estates and were fully protected by the common law courts.
Estates of less than freehold comprises of various forms of leasehold including

3Fredrick S. Mudenda, Land law in Zambia: cases and materials (UNZA press for school of law, 2007) Lusaka Zambia.
 i. A lease for a fixed term of certain duration

ii. A lease the duration which is capable of being rendered certain

iii. A lease for an uncertain period of uncertain duration

The difference between freehold and leasehold is that, freehold were recognised by the feudal
order, because 4persons holding such estates in possession were recognised as standing upon
a rung in the feudal ladder and the remedies available in the king's court were available to the
owner of such an estate and gave a claimant specific recovery while a leasehold contracted a
term of years and whose owners were not on the feudal ladder in which their estates were
termed as personal property as not to real property.

unlike freehold which has the crown as the owner of the land, leasehold has a different take
such that estates are either in possession, remainder or reversion for successive interest in
land. An estate in possession is one where a present right to immediate enjoyment is given,
such that there is no proceeding estate to postponed the enjoyment, and where land reverts
back to the original grantor, then the grantor has an estate in reversion and for an estate in
remainder, one has no present right to actual enjoyment, their right to possession being
postponed to the future. Section 66 of the Lands and Deeds Registry Act provides for the
creation of various estates and can be restricted by Trust Restriction Act which restricts the
creation of some settlements and future interest.

In conclusion the evolution of these doctrines of Tenure and Estates has brought a change in
the land law reform system which has brought about the move from Freehold to Leasehold by
the enactment of the Lands (Conversion of Titles) Act in a country like Zambia with a period
of 100 years which has brought about the capability of transferring land from one person to
the other.

4lands (Conversion) of Title Act

TABLE OF BOOKS
Fredrick S. Mudenda, Land law in Zambia: cases and materials (UNZA press for school of
law, 2007) Lusaka Zambia.
TABLE OF STATUTES
Lands Act Chapter 184 Of the Laws of Zambia
The Proposed Constitution of Zambia (Amendment) Bill, 2019
The Constitution of Zambia (Amendment)(No.5) Act No. 33 of 1969
Lands Acquisition Act 1970
The Lands Act 1995
State lands and Reserves Order 1924-1964
Trust lands Orders 1959-1964
Land and Miscellaneous Western Province Provisions Act 1970
The Lands (Conversion of Title) Act 1975 Section 3(1), 3(3), 3(4), 7(1)
ARTICLES/ JOURNALS
Kaunda, M. “Ownership of Property Rights in Land in the First Two Republics of Zambia:
An evaluation Edition,1998 P.85.
Mulimbwa, A.C. “Land Policy and Economic Development in Zambia”, in Zambia Law
Journal, Special
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