The Law of Real Property
Reform
Land law as a whole has root in the feudal system, thus abstract principles such as tenures
and estates, and other complex terms, bring about such complexities in the law. In the
Commonwealth Caribbean the Law of Property Act1925 in England was adopted via the
doctrine of reception. The basis of such reform was to simplify conveyancing and protect
the beneficiary. It was also aimed at protecting the purchaser and bringing about
certainty and consistency with modern commercial life.
The first principle to be examine is the doctrine if tenures. The fundamental
doctrine of tenure was the unification of England by vesting all land in the Crown. The
king was the landlord, and all those who held land, held of the king and in turn rendered
services. There was no theoretical limit to the number of intervening tenures between the
king and the tenant in occupation, thus, a complex process called the process of
subinfeudation. In 1290 The Statute of Quia Emptores prohibited subinfeudation and
replaced it with a system of substitution, whereas, one tenant was replaced by another.
The statute also enabled every man to alienate his land in whole or in part with the
consent of the overlord. Quia Emptores is still in effect today. It operates everytime a
conveyance in fee simple is executed, automatically shifting the status of tenant from
grantor to grantee and fulfilling the rule that all held shall be in tenure of the crown. The
system of landholding in return for services such as knight service and frankalmoin was
abolished by the Tenures Abolition Act 1660, as tenural incidents were very onerous. As
a result, tenures were reduced to two types, socage and copyhold. Later in 1925 under
the LPA 1925, copied in the Barbados Property Act s.5, all feudal tenures were abolished.
The Act kept in a restricted way, via s.5(3), the doctrine of escheat and retained the bona
vacantia However, the Mabo case shows where the doctrine of tenure was placed under
international law, as in this case the issue was a matter of tile and sovereignty, not
ownership, and also the enjoyment of land. In this case it was held that the natives still
retained of land even though tenure still existed, it only gave the Crown sovereignty.
The second principle to be examined is the doctrine of estates. Estates may be
classified by the characteristic of their duration. A freehold estate is uncertain as its
duration, whereas, a leasehold is of a fixed duration and thus certain. Freeholds are
divided into freeholds of inheritance and non-inheritance. The inheritable freeholds are
the fee simple and the fee tail estate. Life estates are not inheritable, as well as the pur
autre vie. The fee simple may last forever, and thus has no termination point, land is
granted to X and his heirs, whereas, a fee tail is granted to X and the heirs of his body.
The problem with conveyancing was not only the multiplicity of the legal estates
that could exist at one time, but this created a problem for a potential purchaser. For
example, a person could convey land to W for life, remainder to X for life, remainder to
Y and the heirs of his body, remainder to Z and his heirs. Thus four different legal
estates could be created, and the purchaser would have to acquire all four to take the fee
simple. The LPA 1925, copied in the Barbados Property Act 1979 s.3(1) reduced the
number of estates to two: fee simple absolute in possession and term of years absolute.
Section 3(2) provides that the only interests in land capable of being conveyed are
easements, mortgages, rights of way, etc. Via s.3(3) the Act converted all other estates or
charges over the land into equitable interests. This particularly affects life interests will
always be equitable under the Act. The legal estate is held on statutory trusts to give
effect to the equitable interests. Therefore, the problems of the purchaser were simplified
because he only had to worry about one legal estate. There can be no estate of which he
has no notice that can defeat his purchase. There is also only one person who can convey
the entire legal estate as distinct from only owning part of it. These provisions protect the
purchaser. The equitable interests are, thus overreached by s.7(1) of the Act. However,
s.7(2) provides important exceptions to the doctrine of overreaching. These are
commercial in nature, thus not capable of monetary value, e.g. easements.
The statute moves to simplify conveyancing by freeing up the legal title from
multiple owners, however, the interests of the beneficiaries had to be protected. This was
done by protecting these estates behind statutory trusts. The Act provides that pending
the sale of land, equitable interests remain in the land and are not converted, as the
doctrine of conversion was abolished under s.213. Thus s.8(1) provides that all equitable
interests in the land are enforceable against the estate owner, where the legal estate
affected is vested in trustees upon statutory trusts or in trusts for sale, they are bound to
give effect to the equitable interests in the manner provided for in part 3, and (b) where
the legal estate is vested in neither trustees upon statutory trusts nor trusts for sale, the
estate owner is bound to give effect to the equitable interests of which he has notice.
Equitable interests in the past were protected by the doctrine of notice, however,
this was diminished by the reform provisions under the Act. The system of statutory
trusts and overreaching makes notice irrelevant since the legal title is free from equitable
interests. Note the cases of Boland and also the case of Flegg where the procedure has to
be fully complied with for overreaching to occur. Under the 1925 Land Charges Act, the
beneficiaries of the equitable interests are protected by a system on notice, but the
Barbados legislation abolished to a great extent the old feudal system of constructive,
imputed and actual notice. Note the cases of Midland Bank and Trust and Lloyds Bank.
Section 58 of the B’dos Act provides for Land Registry, thus the registration of
deeds, as in the Caribbean priorities are given to the order in which deeds are governed
relating to the same land. This system of registration enables the holder of a deed to
register in order to protect himself from someone who has acquired the deed after him for
the same land. The Caribbean also has a system for registration of title. Under this
system is the Torrens system in Jamaica, Trinidad, Dominica, Belize. The registration of
title is governed by the Mirror principle, the curtain principle, and the insurance principle.
Under the LPA 1925 is an exception to possession; the overriding interest. This
has been reproduced in s.3(1) of the Barbados Registration Act, where the title of adverse
possession is preserved against a registered proprietor. Under this section even if you
have root of title, the person in actual possession has rights, such as squatter’s rights.
Reliance on the root of title………………..