Tenement (law)

A tenement (from the Latin "to hold"), in law, is anything that is held, rather than owned. This usage is a holdover from feudalism, which still forms the basis of all real-estate law in the English-speaking world.

Under feudalism, land itself is never privately owned; instead, "estates" in land (feuds or fees) are held of some superior, upon some manner of service. The thing held is called a tenement, the holder is called a tenant, the manner of his holding it is called a tenure, and the superior is called the landlord, or lord of the fee.

These forms are still preserved in the law, even though feudalism itself is extinct, because all of real estate law as it has developed over centuries is founded upon them, and it is generally held that no value could be had in eliminating these last vestiges of feudalism, which would not be grossly outweighed by the costs, in new litigation, of stirring up, by new enactments of basic law, what has been so long settled.

Under feudal law, tenements were of two sorts: frank-tenement and villenage. The sole surviving form, in the United States, is that species of frank-tenement known to the feudalists as "free socage" (wherein the service to be performed is known and fixed, and not of a base or servile nature); the "lord of the fee" is the State itself, and the service due this "lord" is payment of the taxes upon the real estate. The major consequences, in the modern world, of this feudal approach, as distinguished from ownership, are, first, the forfeiture of the tenement upon failure to perform the service (that is, non-payment of taxes), and second, the doctrine of eminent domain, whereby the "lord of the fee" might take back the estate, provided he make just compensation.

An interesting side effect of this is that government entities do not pay real estate taxes to other government entities since government entities own the land rather than hold the land. Localities that depend on real estate taxes to provide services are often put at a disadvantage when the state or federal government acquires a piece of land. Sometimes, to mollify local public opinion, the state or federal government may volunteer to make payments in lieu of taxes (PILOT or PILT programs) to local governments.