“Thus, our system of landed property is a structure of the most complex and heterogenous kind …. That within the special studies of the legal profession, the study of them is a specialism in itself. Among accomplished lawyers, the number who are well versed in real law (leasehold) is but small. The number of those who know the history of that law, is smaller still”.
The Land Laws, Frederick Pollack.
Leasehold has undoubtably become a tainted land tenure and current sales evidence proves, even in a time of severe housing shortages, that fewer home buyers are choosing leasehold properties. The writing is on the wall for this feudal unfair system and the only question remaining around its abolition is when, not if.
Whenever I describe leasehold as a feudal system, I receive a barrage of complaints from freeholder’s lawyers scoffing at the idea that our modern-day leasehold system is feudal. “Don’t you know that residential leases were only introduced in the mid-18th century, how can it possibly be feudal?” they laugh heartily.
It is understandable, I suppose, that freeholders and their paid legal gatekeepers are keen to disassociate today’s leasehold system from the even more iniquitous feudal tenure. The very use of the word feudalism, to describe a system which still controls 25% of our housing market in the 21st century, automatically screams for abolition!
Well, let’s have a dispassionate look at the evidence and establish once and for all this very fact: Is leasehold really feudal? Before we can answer this question, we need to be very clear on what we are discussing. What was feudalism and where did it come from?
What was feudalism?
In its early form feudalism was a way of structuring society around relationships derived from holding land in exchange for services. The king or chieftain owned land and he allowed others to live on and work his land in return for military service or agricultural labour dues. Should the scary Vikings or Vandals ride into town for a spot of mindless pillaging and murder? Society was ordered in such a way that the kingdom could quickly muster an army and defend the community.
This form of feudalism has become known as ‘classic feudalism’ and was introduced into Europe by the Franks, a Germanic tribe that settled in France, in the 10th century. It was not meant to be punitive system but instead a benign one based on mutually reciprocal obligations. One of the earliest proponents of Feudalism were the Normans. They were raiding Vikings who had a real penchant for invading the north of France, they loved all things French! Eventually, they became such a threat to national security that the French king, Charles the Simple, gifted them the land of Normandy in return for protecting France from other scary raiders who were planning booze cruises to France.
The Normans introduced classic feudalism into their new kingdom as well as successfully exporting it into Naples and Sicily as they fought to conquer new lands for themselves. Eventually, an illegitimate son of a ruler of this new kingdom would be crowned Duke of Normandy and he would change the British Isles more than any other person in History. He would forever be known as William the Conqueror and he was a right greedy bastard.
In 1066 William invaded Britain, killed the Anglo-Saxon king Harold and installed the Normans as the new royal family. The royal line he installed would never be removed, our current queen being William’s 24th great granddaughter.
With his victory secured and while the battle noises echoed around Hastings, William declared that he now owned all the land in Britain by ‘right of conquest’. He then set about introducing the most vicious form of feudalism the world had ever seen with the sole purpose of making himself and his loyal followers rich at the expense of the native Briton’s.
He quickly stripped the Anglo-Saxons of all their land and property and dished it out to his Norman generals. He then introduced his brutal form of feudalism, known as bastard feudalism. The form of feudalism he imposed on Britain was very different to classic feudalism. William hated Britain, its people, its language and its weather. His feudalism was not the mutually beneficial classic feudalism type but one that was designed to punish the inhabitants of his conquered land and make himself and his nobility wealthy beyond their wildest dreams.
His feudalism was firmly based on the fact he was the only legal owner of all the land in Britain, perpetually, or forever. He dished out the rights to occupy and profit from his lands to his nobility so long as they remained faithful to him and supplied armies when he needed them. They in turn allowed peasants to live on their land, and in return for this, they owed their ‘landlords’ onerous and all-consuming labour rents. Serfs, referred to as ‘beasts of the fields’ by the Normans, would be granted meagre plots of land to live on and cultivate for the survival of their own families but only after they had done the bidding of their Norman masters and the church.
The landlords controlled every aspect of the serf’s lives. As well as the labour rents owed the serfs were duty bound to ask permission from their landlords for anything they needed to do like travel, go to market, grind flower to make bread, get married, have children and even die. For each permission granted the serfs were legally bound to pay their landlords a ‘fee’ by way of a labour rent, produce or later, in real money for the granting these permissions.
The serf’s lives were short and brutal and were consumed by the ‘labour rents’ or services they owed to the landowning class. It was said at the time that the serfs owned nothing ‘but their bellies’. Even the slightest dissent would be met with violence, torture or murder at the hands of their landlords. A serf’s life was so arduous that they would be lucky to see their 40th birthday. The basis of this great injustice was based solely on the perpetual land ownership rights William had granted himself when he stole the land of the country in 1066.
For the inhabitants of Britain, feudalism was an unjust slavish catastrophe, not so for the Conqueror though. At the time of William’s death, he had amassed a personal fortune worth around 180 billion pounds in today’s money. To put that in context that is far more than Bill Gates, Warren Buffet and Jeff Bezos’s wealth combined!
Feudalism dies and copyhold is born
It is obvious that a system so unjust, a system that totally favoured one class of people to the detriment of another, based on stolen land rights, would never last forever. Three historical events would eventually drive a stake through feudalism’s heart.
The first was population growth. Soon there were too many serfs knocking about to work the land owned by the aristocracy. The serfs hated the landowners and resented the back-breaking work they were forced to carry out for them. They were surly, difficult to motivate and would do as little work as they possibly could during the hours they were forced to work. The nobility were tired of them and discovered that if they allowed the serfs to pay real money ground rents for permission to live on the land and for the various fines for permissions, they could use that real cash to pay jobbing labourers to work the land by the acre. Cottage industries and capitalism were born in Britain.
Then came the black death which decimated as much as 50% of the population. The serfs that survived the plague realised that their labour was in huge demand and they could charge much more for it than they ever previously dreamed. The landowners were left with huge swathes of land with no one to occupy it and more importantly, pay them to occupy.
The serfs hated feudalism and everything about it and their discontent boiled over in the first ever violent rebellion against the unfair land tenure. The great revolt of 1381 (purposely mislabelled as a ‘poll tax revolt’ or ‘peasant’s revolt’) was the final nail in the coffin of feudalism. Soon, no serf would submit themselves to feudalism and the landowners were very afraid they may lose their opulent lifestyle and, god forbid, have to work for a living.
The landlords had to do something and quickly. Feudalism was dying and it needed a comprehensive rebrand. A new land tenure must be constructed which gave the illusion of freedom of choice. It had to appear, to the serfs, as a radical transmutation away from feudalism and its draconian obligations. It would need to insinuate choice, fairness and define the terms on which the land would be occupied to tempt the serfs to agree to the deal. However, from the landlord’s point of view, it had to preserve and reinforce their legal relationship with the serfs based on their land ownership rights.
Working with the land lawyers of the day, the aristocracy devised a brand-new land tenure which was called copyhold. The idea of copyhold was that the terms of how land could be occupied, for how long and at what cost was thrashed out and agreed upon and these terms would be entered in the landowner’s manorial records. A copy of these terms was handed to the serf, hence the name copyhold. Hey presto, the modern concept of a lease was invented.
This gave the serfs the illusion of choice and fairness, but it was in fact a masterpiece of legal deception. All copyhold came with the caveat that the agreed written terms were ‘at the will of the lord, and by the custom of the manor’. In other words, if the landlord decided not to honour the written terms, you were stuffed.
Copyhold was superb for the landowners though. It legally established their perpetual property ownership rights in law. Copyhold simply changed a serf’s feudal dues from labour rent obligations to real money payments. Once landowners realised the money to be made from cash payments, it triggered a frenetic gold rush. Suddenly, the grant of a permission to occupy land was limited to shorter periods of time, a lifetime, three lifetimes or 20 years. Each time land was newly occupied or vacated the landowners would claim a lovely ‘initial rent’ or a ‘quit rent’ which would generally be five times the current ground rent.
Ground rent as we know it today was born and very quickly landlords devised ways to make these ground rents onerous, which was one of Wat Tyler’s complaints to the young king in the 1381 revolt.
The concept of reversion was also born based on a landowner’s perpetual ownership rights of the land and the fact that they should be legally compensated for any ‘loss of reversion’.
Forfeiture was invented, as the landowners now had a financial incentive to strip a serf of the land. If they did, they could charge them a ‘quit rent’ and the new occupier an initial rent too (ten years of ground rent for nothing). The landlords invented a whole spurious list of ‘do’s and don’ts’ which if contravened would result in forfeiture of the land. These are still present in modern day leasehold leases and generally exist for the same motive as they did in the 14thcentury. In fact, most every invention of feudalism and its transmuted form, copyhold, still exists in modern day leasehold. Fee simple, chattels, tenant, freehold, rent charges, eminent domain, entail, primogeniture, lease, commons, chattels and ‘real law’ are all feudal terms and still very much in use today.
Copyhold was the dominant land tenure for another couple of hundred years. However, it was just as iniquitous as feudalism and for the same reason, was hated by the serfs. More and more serfs refused to occupy land based on the copyhold land tenure and instead desired to occupy land based on the terms of a lease. In the 18th century residential leasehold was born. Houses and later flats were occupied based on the terms of the lease.
Modern day leasehold
The conceptual basis of leasehold today hasn’t changed a jot from the days of feudalism. The landlord had the legal right to own the land perpetually. The leaseholder (read: peasant, serf, copyholder, beast of the field) has feudal obligations to this great and lofty landowner. For permission to occupy the freeholder’s land, the leaseholder has a whole set of legal, set in stone, dues they owe their landlord. These numerous feudal dues are spelt out in the lease and should any of them be contravened, the freeholder will enjoy the unearned gift of forfeiture of the property. The serfs, peasants, beasts of the fields are now longer known as peasants, today we call them leaseholders.
The Crown still legally owns all the land in this country, which is as feudal as you like, based on the undeniable fact that a distant relative of theirs happened to steal all the land of Britain, a thousand years ago. Feudalism, copyhold and modern-day leasehold are made possible today because of this one fact. By the by, there is no statue of limitation on theft, so if anyone wants to crowd fund a legal challenge to reclaim our heritage, that of owning all the land in Britain collectively, from the Crown, then count me in.
Modern day residential leasehold is no longer called feudalism nor is it known as copyhold but to deny that is where it has come from is disingenuous at best. At worst, it is a purposeful attempt to obfuscate the roots of leasehold. It equates to denying a butterfly comes from a caterpillar as they no longer resemble each other and are known by different names.
I know it’s an inconvenient truth and it makes the great landowners and their legal ‘guns for hire’ feel uncomfortable, but modern-day residential leasehold is as feudal, as feudalism.