Part 4 More on Property Rights

The Charter of the Forest of 1217 is a charter originally sealed in England by the young King Henry III, acting under the regency of William Marshall, 1st Earl of Pembroke. A companion document to the Magna Carta, redressing some applications of the Anglo-Norman Forest Law that had been extended and abused by William Rufus, the charter re-established rights of access to the royal forest for free men that had been eroded by the Conqueror and his heirs. Many of its provisions were in force for centuries afterwards.

The Charter of the Forest was first issued on 6 November 1217 as a complementary charter to the Magna Carta from which it had evolved. It was reissued in 1225 with a number of minor changes to wording, and then was joined with Magna Carta in the Confirmation of Charters in 1297.

In contrast to Magna Carta, which dealt with the rights of barons, it provided some real rights, privileges and protections for the common man against the abuses of the encroaching aristocracy.

At a time when the royal forests were the most important potential source of fuel for cooking, heating and industries such as charcoal burning, and such hotly defended rights as pannage (pasture for their pigs), estover (collecting firewood), agistment (grazing), or turbary (cutting of turf for fuel), this charter was almost unique in providing a degree of economic protection for free men, who also used the forest to forage for food and to graze their animals.

The King was required to “disafforest” Royal Forest, which meant (rather than chopping trees down) a requirement to give up possession of forest land. This might or might not have trees: it could also be heathland. In doing so the land became available to commoners.

The Charter provided a right of common access to (royal) private lands. Only with the Acts of Union 1707 between England and Scotland were these rights equalled within the realm.

It also rolled back the area encompassed by the designation “forest” to that of Henry II’s time, essentially freeing up lands that had become more and more restricted as King Richard and King John designated greater and greater areas of land to become royal forest. Since “forest” in this context did not necessarily mean treed areas, but could include fields, moor or even farms and villages, it became an increasing hardship on the common people to try to farm, forage, and otherwise use the land they lived on. The Charter specifically states that “Henceforth every freeman, in his wood or on his land that he has in the forest, may with impunity make a mill, fish-preserve, pond, marl-pit, ditch, or arable in cultivated land outside coverts, provided that no injury is thereby given to any neighbour.”

Clause 10 repealed the death penalty for capturing venison (deer), though transgressors were still subject to fines or imprisonment for the offense; it also abolished mutilation as a lesser punishment. Special Verderers’ Courts were set up within the forests to enforce the laws of the Charter.

By Tudor times, most of the laws served mainly to protect the timber in royal forests. However, some clauses in the Laws of Forests remained in force until the 1970s, and the special courts still exist today in the New Forest and the Forest of Dean. In this respect, the Charter was the statute that remained longest in force in England (from 1217 to 1971), being finally superseded by the Wild Creatures and Forest Laws Act 1971.

In 1215, nearly one third of the land in England consisted of forest. Today, the word ‘forest’ describes a densely wooded area but the term meant something very different in the thirteenth century. Forests in King John’s time were lands where the King enjoyed a monopoly over all management and distribution of resources. Some of these lands were forests in the modern sense of the word including Sherwood Forest, associated with the legends of Robin Hood and his Merry Men, and the New Forest, which remains one of the largest tracts of woodland in England. Other thirteenth century ‘forests’ however, consisted of inhabited countryside with villages and farmland.

As the population of medieval England increased, “the law of the forest” became increasingly onerous to both the nobility and their peasant tenants who were unable to develop or expand their land without the King’s permission. Magna Carta, ‘The Great Charter’, addressed forest privileges in a series of clauses but England’s barons considered this issue to be so significant that they drew up a subsequent document that expanded on these provisions in 1217, during the minority rule of John’s son, Henry III. The Charter of the Forest is much less well known than the Magna Carta but it expanded on the latter’s provisions and provided the foundation for the modern concept of common stewardship of resources.

For King John and his privileged predecessors, the forest was both a hunting ground and a lucrative source of revenue. Hunting had been the sport of English Kings since Anglo-Saxon times but it was William the Conqueror and his descendants who enforced a royal monopoly over hunting large animals in the forest. Members of the nobility might receive a license to hunt ‘free warren’ such as foxes, otters, badgers and rabbits but only the King, members of his hunting parties or his foresters were entitled to hunt deer or wild boar.

Penalties for poaching the King’s game were severe. According to the Anglo-Saxon chronicle, “[King William I] made many deer-parks; and he established laws therewith; so that whosoever slew a hart, or a hind, should be deprived of his eyesight. As he forbade men to kill the harts, so also the boars; … His rich men bemoaned it, and the poor men shuddered at it.” Although two of William I’s sons, Richard of Normandy and King William II died in hunting accidents in the New Forest, successive Kings fiercely protected their exclusive right to hunt large game animals.

The chronicler William of Newburgh complained of William I’s youngest son, King Henry I, “He was, also, immoderately attached to beasts of chase, and, from his ardent love of hunting, used little discrimination in his public punishments between deer killers and murderers.” By the reign of King Richard the Lionhearted, the punishment for killing a deer was blinding and mutilation even though the King only spent a few months in England over the course of his reign and had little time for hunting between his military campaigns.

The Charter of the Forest acknowledged that deer remained the property of the King but abolished physical punishments for poaching. According to the tenth clause of the Charter, “No one shall henceforth lose life or limb because of our venison, but if anyone has been arrested and convicted of taking venison he shall be fined heavily if he has the means; and if he has not the means, he shall lie in our prison for a year and a day…”

Henry III showed little enthusiasm for hunting, but large game remained property of the Crown in law until the 1971 Wild Creatures and Forest Laws Act in the United Kingdom formally abolished, “any prerogative right of Her Majesty to wild creatures…together with any prerogative right to set aside land or water for the breeding, support or taking of wild creatures; and any franchises of forest, free chase, park or free warren.” The Charter of the Forest remains the statute in force for the longest time in England.

While the young Henry III’s barons were willing to accept that the monarch owned the deer and wild boar in the forest – provided that the penalties for poaching were lessened – they insisted that the King curtail his right to use his forest prerogatives to extract revenue from his subjects. The King’s Chief Forester and his deputies, who attended forest courts and made regular inspections of forest lands, were among the King’s most unpopular officials because of their ability to extract payments for land development or levy fines for violations of forest law.

The regulations governing the use of forest land before the promulgation of the Charter of the Forest were extensive and arbitrary. Permission from the Chief Forester was required before forest land could be cleared and cultivated, and the King received rent in perpetuity for these newly developed tracts. The right to pasture animals in the forest was strictly controlled and could be revoked at the King’s discretion. Farmers could only chop down trees for their own use if removal of a tree did not create waste, which was defined in the reign of Henry II as “If a man standing on the stump of an oak or other tree can see five other trees cut down around him.” If an individual offender could not be identified in the forest courts, the Chief Forester had the power to impose a fine on the entire community.

Forest court records from John’s reign provide examples of the offences and penalties for breaking “the law of the forest.” In 1209, Roger de Crammaville of Kent was fined twenty marks for owning dogs that did not meet forest regulations, which dictated that three claws of their forepaws be removed to ensure that they were unable to hunt game. That same year, the King ordered the destruction of unauthorized ditches and hedges on forest land. This decree was deeply unpopular because wild animals, including deer, were able to destroy crops in fields unprotected by hedges or ditches. In addition to collecting fines and other payments, John also used his forest prerogatives to settle personal scores. In 1200, the King expressed his displeasure with the Cistercian Order by forbidding the monks from pasturing their livestock in the forest until twelve abbots begged his forgiveness on their knees.

The boundaries of the forest changed frequently as monarchs designated additional lands as forest to increase their revenue. Both Richard and John also agreed to “disafforest” land upon the payment of a large sum from a community whose members agreed they would be better off without the restrictions imposed on forest dwellers. These agreements between individual communities and the monarch were precursors to the Charter of the Forest, which applied to the entire kingdom.

The Magna Carta began the process of transforming the forests into common land that served the needs of communities. According to the 1215 version of the Great Charter, “All evil customs relating to forests…are at once to be investigated in every county by twelve sworn knights of the county, and within forty days of their enquiry the evil customs are to be abolished completely and irrevocably.” This clause was eliminated from future reissues of Magna Carta as the Charter of the Forest expanded and developed the provisions concerning use of forest land.

The Charter of the Forest precisely defined the “evil customs” mentioned in the Great Charter, and presented an alternative vision for the management of common resources. In contrast to the arbitrary regulations and fines imposed for forest offences by John and his predecessors, the Charter stated that “Every free man may henceforth without being prosecuted make in his wood or in land he has in his forest, a mill, a preserve, a pond, a marl-pit or a ditch, or arable outside the covert in arable land, on condition that it does not harm any neighbour.” This clause both revoked John’s unpopular decrees and transferred authority over forest development from the King to the commons. Instead of answering to the King alone, forest dwellers had to consult with their communities, ensuring that any development did not disadvantage their neighbours.

The Charter of the Forest also ended the unpopular practice of Kings transforming new land into ‘forest’ stating that, “All woods made forest by King Richard our uncle or King John our father, up to the time of our first coronation shall be immediately disafforested.” Although surviving evidence suggests that John only created two new forests during his reign, the arbitrary and mercenary nature of these changes infuriated his subjects and they were eager to ensure that Henry III and his successors did not exercise the same prerogatives.

When Henry III came of age in 1227, the future of both Magna Carta and the Charter of the Forest became uncertain. According to a decree passed in 1218, no charter approved during the King’s minority remained valid during his majority without confirmation by the adult King. There was a real possibility that Henry III might refuse limits on his powers imposed by his barons while he was a child. The King ultimately agreed to uphold Magna Carta in exchange for a tax on the movable property of the clergy, and the Charter of the Forest for a tax on land. Henry III’s fifty-six year reign coincided with a period of prosperity for England as land development in rural areas matched the needs of communities instead of forest regulations imposed on them by the King. The lasting legacy of the Charter of the Forest is the precedent for community stewardship of shared resources that endures into the twenty-first century.

English land law draws on four main sources to determine property rights: the common law and equitable principles developed by the courts, a system of land registration, a continuing system for unregistered land, and the European Convention on Human Rights. First of all, the courts of common law and equity gave people with “property” rights various privileges over people who acquired mere “personal” rights. To acquire property over land (as with any other object of value), as opposed to a contract, for example, to use it, a buyer and seller simply needed to agree that property would be passed. The law then recognised a “property” right with various privileges over people with purely “personal” claims. The best form of property would involve exclusive possession, and it usually bound anyone who attempted to interfere with an owner’s use, particularly in cases of insolvency, if other people with interests in the land sold their stake to a third party, or in getting remedies to enforce one’s right. Before 1925, property rights in land (unlike, for example, a company’s shares) only had to be evidenced in paper title deeds. It was therefore believed that a system of land registration was desirable, so that people’s rights over land would be certain, and conveyancing would be simpler and cheaper. So, the second system of land began with the Land Registration Act 1925, and the rules were recast in the Land Registration Act 2002. Instead of paper title deeds determining people’s property rights in land, the entries in the registry were the source that determine people’s property rights. However, many property rights were never expected to be registered, particularly the social claims that people had on family homes, or short leases. Furthermore, not all land had to be registered. Only when formal transactions with land took place did registration become a compulsory. This meant that by 2013, 88 per cent of land or 126,000 square kilometres was registered with HM Land Registry. But a third system of land regulation remained for the 12 per cent of unregistered land. Though somewhat amended by legislation, this system for determining property rights and disputes remained much like the old common law and equity. Fourth, and particularly important since the Human Rights Act 1998 allowed people to plead claims directly in the UK courts without having to wait for an appeal to Strasbourg, property rights were affected by an autonomous set of human rights under the European Convention. Not simply the common law, or land registration, but also people’s right to a family life, privacy in one’s home, and peaceful enjoyment of possessions, could change the outcomes of property disputes.

Land law is also known as the law of real property. It relates to the acquisition, protection and conflicts of people’s rights, legal and equitable, in land. This means three main things. First, “property rights” (in Latin, a right in rem) are generally said to bind third parties, whereas personal rights (a right in personam) are exercisable only against the person who owes an obligation. English law acknowledges a fixed number, or numerous clauses of property rights, which create various privileges.

The main situations where this distinction matters are if a debtor to two or more creditors has gone insolvent (i.e. bankrupt), or if there is a dispute over possession of a specific thing. If a person or a business has gone insolvent, and has things in their possession which are the property of others’, then those people can usually take back their property free of anyone else’s claims. But if an insolvent person’s creditors are merely owed personal debts, they cannot take back their money freely: any losses have to be divided among all creditors. Often, creditors can contract for a proprietary right (known as a security interest) to secure repayment of debts. This gives the same result as having another proprietary right, so the secured creditor takes priority in the insolvency queue. Secured creditors, most usually, are banks and for most people the most familiar kind of security interest is a mortgage. In this way, property rights area always “stronger” than personal rights, even though they may be acquired by the same means: a contract.

Most of the time, property rights are also stronger than personal because English courts have been historically more willing to order specific performance as a remedy for interference with property rights. People with personal rights, such as to the performance of a contract, are presumptively entitled to money in compensation, unless damages would be an inadequate remedy. In its second main feature, English land law differs from civil law systems in the European Union, because it allows the separation of the “beneficial” ownership of property from legal title to property. If there is a “trust” of land, then trustees hold legal title, while the benefit, use and “equitable” title might belong to many other people. Legal title to real property can only be acquired in a limited number of formal ways, while equitable title can be recognised because of a person’s contribution, or the parties true intentions, or some other reason, if the law deems that it is fair and just (i.e. equitable) to recognise that someone else has a stake in the land.

The third main feature of the English law of real property is that “real” property (or “realty”) means land, and the things that goes with it, alone. This is classified as different from movables or other types of “personal” property (or “personality”). The distinction matters mainly to define the scope of the subject matter, because there are different registration requirements, taxes, and other regulations for land’s use.

The technical definition of “land” encompasses slightly more than in the word’s common use. Under the Law of Property Act 1925, section 205(1)(ix) says land means “land of any tenure, mines and minerals, whether or not held apart from the surface, buildings or parts of buildings (whether the division is horizontal, vertical or made in any other way) and other hereditaments; also a manor, advowson, and a rent and other incorporeal hereditaments, and an easement, right, privilege or benefit in, over, or derived from land…” This cumbersome definition indicates two general ideas. First, land includes physical things attached to it (e.g. buildings and “hereditaments”) and, second, intangible rights (like an easement, a right of way). Perhaps in aspiration of appearing scientific, lawyers have become accustomed to describing property in land as being “four dimensional”.

The two dimensional area of land surface, bounded by a fence, is complemented by rights over all buildings and “fixtures”. This becomes most relevant in disputes after a contract to sell land, when a buyer alleges a thing was included in a sale, but a contract was silent on the specifics. In Holland v Hodgson Blackburn J held that looms installed in a factory formed part of the land. Objects resting on the ground and “attached” only by gravity will not normally be part of the land, although it could be that the parties “intended” something different, or rather what the parties’ reasonable expectations were. Easily removable things, like carpets and curtains, or houseboats, will not be land, but less easily removed things, like taps and plugs are  In the third dimension, as section 205(1)(ix) points out, mines and sub-surface things, belong to the surface owner, and up to a general limit of 500 feet, the landowner will have a right to the atmosphere above his land as well. Public policy sets the limit in both cases, so since the 16th century Case of Mines the Crown has a claim to valuable minerals or natural resources that are discovered, as well as valuable treasure. And in the other direction, aircraft or satellites that are sufficiently high are not considered to trespass, or infringe an owner’s right to peaceful enjoyment.] The fourth dimension of land to an English property lawyer, is time.

Since 1925 English law recognises two “estates” in land, or kinds of ownership interest: the “fee simple”, which is a right to use for an unlimited time, and a “lease”, which is an interest for a fixed period of time. In all situations, however, use of the land is constrained by agreements or binding rights with neighbours, and the requirements of the local council and government.

King Edward III signed the Act for the Limitation of Forests in 1641. There were, during this era, accounts of the Crown Forests being extended arbitrarily.

King Edward II, to protect the private property of the people, enacted that the boundaries of the forests must be determined and marked, so as not to infringe or abrogate the ” land/property” rights of the people.

To establish what was the forests of the King and what was not. This was created to be successive titles of private property owners and the surveys that accompanies same. The boundaries were registered in title lists.

The Nullum Tempus Act of 1769, introduced by Sir George Savile, brought forward and still in force today in Canada, the concept and law that provided for a 60 -year limitation of the  prerogative and 60-year adverse possession from the Crown.

Having scratch the surface of property rights so far, lets go forward and direct our focus on Canada.

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