A Brief History of Real Estate: The Fee Simple Ownership

Arthur Wellesley (1769-1852), Duke of Wellington, is reputed to have been the one to exclaim ‘All good things come from England, but cavalry is not one of them’ while facing Napoleon’s French Army at Waterloo on June 18, 1815. Wellesley had learnt his military trade in India applying his study of the art of war and had became a master of the reverse-slope tactic – keeping his forces screened from artillery fire behind the brow of a hill. At Waterloo, however, Wellesley’s Armies were outwitted by Napoleon. The French Emperor had imitated Wellesley’s tactics by positioning 200 heavy artillery guns behind a ridge at La Haye Sainte. When the Hussars and Dragoons cavalrymen led by Lord Uxbridge attacked in the famous Charge of the Scots Greys, Napoleon commanded the guns on the topline of the ridge and one of the epic artillery bombardments in history began. It was at this very moment, at the height of the Charge and while his 3,000 cavalrymen were being slaughtered by the rapid artillery fire of Napoleon’s heavy guns, that the phlegmatic English General is reputed to have exclaimed his now famous remark, directed at Lord Uxbridge who had apparently ordered the Charge without Wellesley knowing it. The day was saved by Gebhard von Blucher (1742-1819), Field Marshal of Prussia, who led the assault of the Kaiser’s Prussian Cavalry against the French right wing, thus causing the entire French line to collapse.

Wellesley’s famous remark has been retouched several times throughout the years, depending on one’s point of view. The British dropped the second part – the reference to the ill-fated cavalry charge – thus creating the popular short version ‘All good things come from England’ – period. When about a century later Britain had the unwise idea of attacking the Ottoman Empire and the British and French Armies were fighting the Turks side-by-side in WWI, General Mustapha Kemal – the English-speaking Commander of the Turkish Garrison and victorious defender of Gallipoli – paraphrased the English dictum after 289 days of siege by turning it, somewhat deprecatingly, into: “No good things ever come from England”. And Mahatma Gandhi throughout his teachings of non-violent conflicts resolutions makes reference to the fact that “All good things come from India”.

Alas, no matter what your point of view is, I shall submit to readers of my Blog that “at least two good things comes from England” : Fee Simple Ownership and Organized Real Estate.

English real estate law (or ‘Estate Law’ as it was known back then) was imported, through colonization, into the earlier forms of law in the U.S.A., Canada, Australia and New Zealand. Many of these states, or their territories, have since modified this historical law, to varying degrees. A study of the old feudal land system of England provides us with an invaluable glimpse of legal history regulating the most valuable asset of them all: land. In medieval times, land was the sole form of wealth and it depended primarily on possession. You had it, you owned it. You wanted it, you fought for it. You found it, you kept it. There were no courts or police force ready to recognize or enforce “legal rights” as we know them today. All this changed with the Norman conquest of England in 1066. William decreed that he owned all of the land in England by right of conquest. Not one acre of England was to be exempted from this massive expropriation. This sudden vacuum of privately-held land was promptly filled by a variety of huge land grants given by the new King to either his Norman officers or to those of the English who were ready to recognize him as king. The device used by the King to control and administer his land was that of tenure. Tenure was the key component of the feudal system. The King struck a bargain with a Lord for a large chunk of land. The Lords that held their tenure directly from the King were called Tenants-in-chief. It was this group of persons who formed the basis of English aristocracy and began, by the process of subletting the King’s land, the implementation of the feudal system.

Tenures were of a variety of duration known as “estates” and the Fee Simple Estate was the most extensive and allowed the Tenant to sell or to convey by will or be transferred to the Tenant’s heir if he died. In modern law, almost all land is held in fee simple and this is as close as one can get to absolute ownership in common law. It was in this context that the British began their dominion over the seas and their explorations which led to the modern nations of Australia, Canada, New Zealand and the United States of America. The concept of developing an informal association of local real estate agents originated in the United States in the 1880s, and by the turn of the century about 15 Real Estate Boards had been established. The National Association of REALTORS® (NAR) was formed in the U.S. in 1908 with 19 boards and one state association. Organized real estate in Canada is almost as old as the country itself. The very first Real Estate Board was set up in 1888 in the growing community of Vancouver. Back then, a commercial lot on Hornby Street near the Hotel Vancouver sold for $600. The Vancouver Board – as it was known then – was active until the start of the First World War, when operations were suspended. It resumed in 1919, and has been operating ever since.

The distinction of the oldest, continuous running Board belongs to Winnipeg, Manitoba. It started in 1903, and the Winnipeg Real Estate Board was the first in Canada to celebrate its 100th anniversary. The Toronto Board was incorporated in 1920, followed by boards in Ottawa, Hamilton, Regina and Victoria in 1921. More than half of the existing Real Estate Boards in Canada were created after 1955, in part because of the evolution of the “Photo Co-Op System” that was introduced in 1951. That was the forerunner of today’s MLS®, introduced in 1962. The Co-op System not only created a need for an organization to establish rules and promote co-operation among agents, but also to provide funds to operate a real estate board. That’s when technology first changed the real estate industry.

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