Business Surgery: Sam Cook, of Ellisons Solicitors, explains the history of property 'freehold' and how it sometimes ends up in the hands of the Crown

When land is sold it is has for some time been a requirement that the transfer is registered at HM Land Registry, and that the new owner is registered as proprietor.

If the transfer is not registered by mistake, then legal ownership of the land will remain with the seller. This is usually easily fixed, but sometimes before it is fixed the seller will cease to exist. They may die, or the seller may have been a development company incorporated specifically to build your estate that has since been dissolved.

So what then? The answer concerns the long ago exploits of a pair of royals called William and Harold, though I should qualify what follows by saying that I am not a historian, and it is possible that my retelling has been somewhat distorted by viewing historic events through the prism of contemporary norms.

So, William the Norman had his eye on becoming King of England and Wales. Harry, the preferred contender to the throne and a cousin of some variety (probably), had been crowned in early 1066. William, disgruntled at being made a spare, marshalled his forces and set off for England to have it out with Harry, who famously got shot in the eye in the ensuing engagement. William spent the next few years travelling the land bragging about how many Anglo-Saxons he had taken out and, in a shocking display of toxic masculinity, became known as “William the Conqueror”.

William also decided that all the land in England and Wales was his. Not everyone agreed. William would visit them to explain that they should respect his truth, and with his army nodding sagely along behind him the Anglo-Saxons eventually fell in line. And thus it was that the Crown came to own all the land in England and Wales.

William then set about giving titles and land to his chums. The land was not theirs of course, they just had use of it in return for services given to the Crown. The different ways in which the land could be held would change over time, and would be given wonderful names such as “frankalmoinage” or “castle-guard”, describing the services to be provided or the use of the land. The tenure could be either “free-hold”, being hereditable and lasting forever, or “non-free”, terminating on the death of the tenant or at some specified time.

Then in 1660, amid a slew of controversy and public concern over whether this country really needed a monarchy, all tenures requiring that service be given to the Crown were abolished. Later, in 1925, all legal estates in land were abolished save for two, being a type of “free-hold” estate now usually referred to as the freehold, and a type of “non-free” estate usually referred to as a lease. When someone now says that they own their land what they really mean is that they own the freehold estate in it, rather than a lease or some other lesser right or interest.

When a lease ends the land reverts to whomever granted it, known as the “landlord” or less commonly the “reversioner”. The same is true of a freehold, but very broadly speaking the Crown is the “landlord” or “reversioner”. Unlike a lease, which usually terminates at the end of the term, a freehold can only come to an end if the freeholder dies without heirs or if a company that owns it is dissolved. When this happens, it is said the land will escheat to the Crown. A few hundred freehold estates escheat to the Crown in this way every year. It is possible that the land does not escheat but instead becomes bona vacantia (“vacant property”), but it is not necessary to complicate things with that here.

So, if the freehold of your property was still (mistakenly) owned by your seller when the seller ceased to exist, then it is quite possible the freehold estate you thought you purchased has ended as well, leaving you with nothing and the Crown holding “your” land. This happens quite often, unfortunately. You will not however arrive home one day to find Prince William on your couch angrily flicking through Netflix, partly because in most parts of England and Wales the Crown is now represented by the Crown Estate, which is a separate entity from the monarchy, and is used to fund the government. If the land is within the Duchies of Lancaster or Cornwall then it is ultimately owned by King Charles or Prince William, but land that escheats to their Duchies is sold and the proceeds given to charity, presumably to avoid any PR fallout.

Fortunately, if what you thought was your land does escheat to the Crown all is not lost. You can make an application to Court to have the freehold estate regranted by the Crown and vested in whomever has a right to it. That is unless a third party has already purchased the land from the Crown, in which case you may only have a claim against your solicitors for negligence, but that is highly unlikely to happen where residential property is concerned, or any property that you are in actual occupation of for that matter.

Sam Cook, is a partner at Ellisons Solicitors, Bury St Edmunds, Property, Dispute Resolution Department