THE CONCEPT OF LEASEHOLD AND FREEHOLD UNDER THE NIGERIAN LAND USE ACT OF 1978 Written by IMIETE, AKEBIN ONYIGHI
The term estate as indicates an interest in land of some particular duration is of different kinds.1 There are different kinds of estates. Estates are basically divided into two: Freehold estate and Leasehold estate.2 Under the English common law doctrine of estate there are three estates of freehold: (a) fee simple, (b) fee tail and (c) life estates. Fee simple and life estate have always existed in English law. The fee tail was introduced by statute in 1925.3 Before considering the concept of freehold and leasehold within the purview or ambit of the Land Use Act of 1978 in detail a brief account of each must be given. FEE SIMPLE: originally, this was an estate which endures for so long as the original tenant or any heirs (blood relations and their heirs and so on) survived. Thus at first a fee simple terminate if the original tenant died without leaving any descendants or collateral blood relations (e.g., brothers or cousins), even before his death, the land had be conveyed to another tenant who was still alive.4 But in 1306, it was settled that where a tenant in fee simple alienate the land, the fee simple would continue as long as there were heirs of the new tenant and so on irrespective of any failure of the original tenant’s heir.5 Therefore, a fee simple was virtually eternal, subject only to escheat if the tenant for the time being died leaving on heir. FEE TAIL: this was an estate which continues for so long as the original tenant or any of his descendants survived. Thus if the original tenant died leaving no relative except a brother a fee simple would continue but a fee tail would come to an end.6 LIFE TAIL: As its name indicates, this lasted for life only. The name “life estate” usually denoted that the measuring life was that of the tenant himself.7 LEASEHOLD: is an ownership of a temporary right to hold land or property in which a lessee or a tenant holds rights of real property by some form of title from a lessor or landlord.8 When a land owner allows one or more persons, called ‘‘tenants’’, to use his land in some way for fixed period of time, the land becomes a leasehold, and the resident (or worker) landowner relation is called a “tenancy”. A tenant pays rent, a form of consideration to the land owner.9 The leasehold can include buildings and other improvements to the land. Although, a tenant does hold right to real property, a leasehold estate is typically considered personal property. Leasehold is a form of land tenure or property tenure where one party buys the right to occupy land or building for a given length of time. As lease is a legal estate, leasehold estate can be bought and sold on the open market.10 Leasehold thus differs from freehold or fee simple where the ownership of a property is purchased outright and thereafter held for indeterminate length of time, and also differs from a tenancy where a property is let (rented) on a periodic basis such as weekly or monthly. Until the end of the lease period (often measured in decades or centuries; a 99-years lease is quite common) the leaseholder has the right to remain in occupation as an assured tenant paying an agreed rent to the owner. Terms of the agreement are contained in a lease which has elements of contract and property law intertwined. It is necessary at this point to considered the position of the Land Use Act in relation to the two English common law concept of freehold and leasehold in order to see whether both concepts can be found within the purview or ambit of the Land Use Act or whether the tenure of the Act support or the right of occupancy granted under the Act whether statutory or customary (express or deemed) can be equated with an English leasehold or freehold. The answer will be attempted through the cases. LEASEHOLD UNDER THE ACT
A lease is a grant of exclusive possession for a certain term in...
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