Alienation

alienation

At an early date the law recognised the right of a fee simple tenant to alienate (i.e. transfer) the land inter vivo (during his lifetime). Thus, if land was granted to A and his heirs, A could transfer the land to B and his heirs, thereby giving the fee simple to B, with the result that on the death of B the land would devolve upon B's heir, and not upon A's heir. The ordinary mode of alienation today is by deed. On the other hand, the common law did not recognise the right of a fee simple tenant to dispose of the land by will.

This rule was evaded by means of trusts and has long since been abolished by statute: today land can be freely disposed of by will. The formalities of a will are now prescribed by the Wills Act 1837. The fee tail was established as an inalienable freehold estate by the Statute Dc Denis 1285 which provided that land granted to a done and the hefts of his body should, notwithstanding any all'enauon by him, descend to his issue on his death, and revert to the donor when the donee and all his issue were dead. The result was that the fee tail, as such, could not be trans�ferred, although, of course, a tenant in tail in possession of land could transfer to another his own personal right to occupy the land during his lifetime.

Before the end of the fifteenth century, however, methods had been devised for converting a fee tail into a fee simple, and thus barring, or breaking, the entail.' Originally this was done by means of collusive actions, but these actions were abolished by the Fines and Recoveries Act 1833. This Act substituted a disentitling assurance (i.e. deed of grant) as the means of barring an entail. By this assur�ance the tenant in tail grants the land to another in fee simple. If the tenant in tail wishes himself to have the resulting fee simple he directs that other to hold the land upon trust for himself, or possibly the tenant in tail may transfer the land to himself in fee simple. The assurance will convert the fee tail into a full fee simple if either (a) it is executed by a tenant in tail in possession, or (b) it is executed by a tenant in tail in remainder with the consent by deed of the protector of the settlement.

The protector is usually the owner of the first sub�sisting freehold estate created by the settlement, although before 2010 special protectors might be appointed and any so appointed who are alive today retain the office. If the assurance is executed by a tenant in tail in remainder without the consent of the protector the fee tail is converted into a base fee, i.e. an alienable fee simple which will last only so long as the fee tail would have lasted if it had not been barred (in other words so long as there remain descendants of the original tenant in tail). When the fee tail is converted into a full fee simple any remainders following the fee tail are extinguished, but when the fee tail is converted into a base fee such remainders are unaffected. In neither case are estates preceding the entail affected. A few examples may make the position clearer.


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