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REAL PROPERTY
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REAL See also:PROPERTY . The See also:land See also:law of See also:England and of countries whose law is based upon that of England stands in a See also:peculiar position, which can be understood only by an outline of its See also:history.
History.—Such terms as " See also:fee " or " See also:homage " carry us back into feudal times. Rights of See also:common and See also:distress are based upon still older institutions, forming the very basis of See also:primitive law. The conception of See also:tenure is the fundamental ground of distinction between real and See also:personal See also:estate, the former only being strictly entitled to the name of estate (q.v.). The See also:division into real and personal is coincident to a See also:great extent with that into immovable and movable, generally used by systems of law founded on the See also:Roman (see PERSONAL PROPERTY.) That it is not entirely coincident is due to the See also:influence of the Roman law itself. The Greeks and the See also:Romans of the See also:republic were essentially nations of citizens; the Teutons were essentially a nation of land-folk; the Roman See also:empire bridged the See also:gull between the two. It is probable that the See also:English land law was produced by the See also:action of the policy adopted in the -See also:lower empire, finally See also:developed into See also:feudalism, upon the previously existing course of See also:Teutonic See also:custom. The distinguishing features of the Teutonic See also:system were enjoyment in common and the See also:absence of private ownership, except to a limited extent. The See also:principal features of the old English land law before the See also:Con-quest, from which the See also:modern law has developed, were (I) See also:liberty of See also:alienation, either by will or inter vivos, of such land as could be alienated, chiefly, if not entirely, See also:bocland, subject always to the limits fixed by the boc; (2) publicity of See also:transfer by enrolment in the See also:shire-See also:book or See also:
of land is not peculiar to the pre-See also:Conquest or any other See also:period. It runs through the whole of English history.
The elements of feudalism so far existed in England under the Anglo-Saxon and Danish See also:kings as to make it easy to introduce it in full at the See also:Norman Conquest. What the Norman Conquest did was not to See also:change all at once allodial into feudal tenure, but to See also:complete the association of territorial with personal dependence in a See also:state of society already prepared for it.' " Nulle terre sans seigneur " was one of the fundamental axioms of feudalism. There might be any number of infeudations and subinfeudations to See also:mesne lords, but the See also:chain of seigniory was complete, depending in the last resort upon the See also: The land forfeited to the Conqueror was regranted by him to be held by military service due to the king, not to the mesne lord as in European continental feudalism. In Io86 at the See also:council of See also:Salisbury all the landholders swore fealty to the crown. In the full vigour of feudalism the inhabitants of England were either free or not free. The free inhabitants held their lands either by free tenure (liberum tenementum, franktenement) or by a tenure which was originally that of a non-free inhabitant, but attached to land in the See also:possession of a free See also:man. Franktenement was either military tenure, called also tenure in See also:knight service or See also:chivalry (including See also:barony, the highest tenure known to the law, See also:grand See also:serjeanty and the See also:special forms of escuage, See also:castle-guard, coinage and others) or See also:socage (including See also:burgage and See also:petit serjeanty), or frankalmoign (libera eleemosyna) or divine service, by which ecclesiastical corporations generally held their land .3 The non-free inhabitants were in Domesday Book servi, cotarii or bordarii, later nativi or See also:villani, the last name being applied to both free men and See also:serfs. All these were in a more or less dependent See also:condition. The free tenures all exist at the See also:present day, though, as will appear later, the military tenures have shrunk into the unimportant and exceptional tenure of grand serjeanty. The non-free tenures are to a certain extent represented by See also:copyhold. The most important difference between the military and socage tenures was the mode of descent. Whether or not a feudal See also:benefice was originally hereditary, it had certainly become so at the See also:time of the Conquest, and it descended to the eldest son. This applied at once in England to land held by military service as far as regarded the See also:capital fief. The descent of socage lands or lands other than the capital fief for some time followed the old pre-Conquest See also:rule of descent. Thus in the so-called " See also:Laws of See also: The lords were more successful. It was enacted by Magna Carta that a free man should not give or sell so much of his land as to leave an amount insufficient to perform his services to his lord. In spite of this See also:provision, the rights of the lords were continually diminished by See also:subinfeudation until the passing of the See also:Statute of Quia Emptores. Alienation by a tenant in See also:chief of the crown without See also:licence was a ground of See also:forfeiture until I Edw. III. st. 2, c. 12, by which a See also:fine was substituted. The modes of See also:conveyance at this time were only two, See also:feoffment with See also:livery of See also:seisin for corporeal hereditaments, grant for incorporeal hereditaments. Livery of seisin, though public, was not officially recorded like the old English transfer of property. The influence of local custom upon the land law must have become weakened after the circuits of the See also:judges of the King's See also:Court were established by Henry II. See also:Jurisdiction over litigation touching the See also:freehold was taken away from the lord's courts by 15 Ric. II. c. 12. The common law as far as it dealt with real estate had in the See also:main assumed its present aspect by the reign of Henry III. The changes which have been made since that date have been chiefly due to the action of See also:equity and legislation, the latter sometimes interpreted by the courts in a manner very different from the intention of See also:parliament. The most important influence of equity has been exercised in See also:mortgage and See also:trusts in the See also:doctrine of specific performance of contracts concerning real estate, and in See also:relief from forfeiture for See also:breach of See also:covenant. History of Real Estate Legislation.—The reign of See also:Edward I. is notable for three leading statutes, all passed in the interests of the See also:superior lords. The Statute of See also:Mortmain (7 Edw. I. St. 2, c. 13) is the first of a See also:long See also:series directed against the acquisition of land by religious and charitable corporations. The statute De Donis Conditionalibus (13 Edw. I. c. I) forbade the alienation of estates granted to a man See also:anti the heirs of his See also:body, which before the statute became on the See also:birth of an heir at once alienable (except in the case of gifts in frankmarriage), and so the lord lost his See also:escheat. The statute Quia Emptores (18 Edw. I. c. I) preserved those rights of the lords which were up to that time subject to be defeated by subinfeudation, by enacting that in any alienation of lands the alienee should hold them of the same lord of the fee as the alienor.4 Since 1290 it has been impossible to create an estate in fee-See also:simple to be held of a mesne lord, or to reserve a See also:rent upon a grant of an estate in fee (unless in the See also:form of a rent-See also:charge), or to create a new manor. The statute, however, does not bind the crown. The See also:practical effect of the statute was to make the transfer of land thenceforward more of a commercial and less of a feudal trans-action. The See also:writ of See also:elegit was introduced by the Statute of See also:Westminster II. in 1285 as a creditor's remedy over real estate. It has, however, been considerably modified by subsequent legislation. From 1290 to the reign of Henry VIII., there is no statute of the first importance dealing with real estate. The reign of Henry VIII., like the reign of Edward I., is signalized by three acts, the effects of which continue to this day. The one which has had the most lasting influence in law is the Statute of Uses, 27 See also:Hen. VIII. c. Io (see See also:CONVEYANCING; See also:TRUST). The Statute of Uses was intended to provide against secrecy of sales of land, and as a necessary sequel to it an See also:act of the same Tenants in chief of the crown were liable to a fine on alienation until 12 See also:Car. Il. c. See also:year (27 Hen. VIII. c. r6) enacted that all bargains and sales of land should be duly enrolled. Bargain and See also:sale was a form of equitable transfer which had for some purposes superseded the common law feoffment. It applied only to estates of See also:inheritance and not to terms of years. The unforeseen effect of 27 Hen. VIII. c. 16 was to establish as the See also:ordinary form of conveyance until 1841 the conveyance by See also:lease and See also:release.' Uses having become legal estate by the Statute of Uses, and therefore no longer devisable, 32 Hen. VIII, c. I (explained by 34 & 35 Hen. VIII. C. 5) was passed to remedy this inconvenience. It is still law as to See also:wills made before 1838 (see WILL). In the reign of See also: 3) contained provisions that certain leases and assignments, and that all agreements and trusts See also:relating to land, should be in See also:writing (see See also:FRAUD). The land registries of See also:Middlesex and See also:Yorkshire date from the reign of See also:Anne (see LAND See also:REGISTRATION). Devises of land for charitable purposes were forbidden by the Mortmain Act (9 Geo. II. c. 36). In the next reign the first See also:general See also:Inclosure Act was passed, 4i Geo. III. c. 1o9 (see See also:COMMONS). In the reign of See also: Io5, Io6. In the reign of See also:Victoria there was a vast See also:mass of legislation dealing with real estate in almost every conceivable aspect. At the immediate beginning of the reign stands the Wills Act. The transfer of real estate was simplified by 8 & 9 Vict. c. Io6 and by the Conveyancing Acts of 1881 and 1882. Additional See also:powers of dealing with settled estates were given by the Settled Estates Act 1856, later by the Settled Estates Act 1877, and the Settled Land Act 1882. See also:Succession See also:duty was levied for the first time on freeholds in 18J3. The strictness of the Mortmain Act has been relaxed in favour of gifts and sales to public institutions of various kinds, such as See also:schools, parks and museums. The period of limitation was shortened for most purposes from twenty to twelve years by the Real Property Limitation Act 1874. Several acts were passed dealing with the enfranchisement and commutation of copyholds and the preservation of commons and open spaces. The See also:Naturalization Act 187o enabled aliens to hold and transfer land in England. The See also:Felony Act 1870, abolished forfeiture of real estate on conviction for felony. The Agricultural Holdings Acts 1883 and 'goo, and other acts, gave the tenant of a tenancy within the acts a general right to See also:compensation for improvements, substituted a year's See also:notice to quit for the six months' notice previously necessary, enlarged the tenant's right to See also:fixtures, and limited the amount of distress. By the Intestate Estates Act 1884 the law of escheat was extended to incorporeal hereditaments and equitable estates. Among other subjects which have been dealt with by legislation in the 19th See also:century may be mentioned land transfer, registration, mortgage, partition, See also:excambion, fixtures, taking of land in See also:execution, See also:declaration of See also:title and See also:apportionment. Hardly a year passes in which the land law is not altered to a greater or less degree. Real estate at the present day is either legal or equitable, a difference resting mainly upon See also:historical grounds. The following observations apply in general to both kinds of estate. The usual See also:classification of interests in real estate regards either the extent, the time or the 'See also:node of enjoyment. The division according to the extent is in the first instance into corporeal and incorporeal hereditaments, a division based upon the Roman law division of res into corporales and incorporales, and open to the same objection, ' From the reign of Edward IV. at latest up to the Fines and Recoveries Act of 1833 fines and recoveries were also recognized as a means of conveyance. They are so regarded in the Statute of Uses.that it is unscientific as co-ordinating subjects of rights with the rights themselves' Corporeal hereditaments, says See also:Blackstone, " consist of such as affect the senses, such as may be seen and-handled by the body; incorporeal are not the See also:objects of sensation, can neither be seen nor handled, are creatures of the mind, and exist only in contemplation." Corporeal hereditaments are all necessarily freehold;' an interest in land less than freehold, such as a See also:term of years, is personalty only. There was no See also:room for such an interest in the feudal gradation of tenure; it was regarded as a See also:mere personal See also:contract and was incapable of the incidents of tenure. By the Conveyancing Act 1881 the See also:residue of a long term of years could in certain cases be enlarged into the fee-simple. A copyhold is in strict law only a tenancy at the will of the lord. Estates of freehold are either estates for See also:life or in fee (called also estates of inheritance), the latter being in fee-tail or in fee-simple. An estate for life may be, either for the life of the tenant or for the life of another See also:person, the latter called an estate pur autre See also:vie. The former kind of estate includes estates of dower and See also:curtesy. An estate in fee is called a fee simply, an obvious sign of its feudal origin. Estates tail are either general or special, the latter being in tail male or (rarely) in tail See also:female. There may also be a quasi-See also:entail of an estate pur autre vie. An estate in fee-simple is the largest estate known to English law. Its ordinary incidents are an See also:oath of fealty (never exacted), escheat, and (in a manor) suit of the court See also:baron, and occasionally a small quit-rent and relief. All these are obviously relics of the once important feudal incidents. Incorporeal hereditaments consist chiefly, if not wholly, of rights in alieno See also:solo. They are divided by See also:Joshua See also:Williams (Real Property, pt. ii.) into (I) reversions, remainders and executory interests, (2) hereditaments purely incorporeal, the last being either appendant, appurtenant or in See also:gross._ Examples are profits a prendre (such as rights of common), easements (such as rights of way),' seigniories, advowsons, rents, See also:tithes, titles of See also:honour, offices, franchises. Before 1845 corporeal hereditaments were said to See also:lie in livery, incorporeal in grant. But by the Real Property Act 1845 all corporeal hereditaments are, as regards the conveyance of the immediate freehold thereof, to be deemed to lie in grant as well as in livery. With regard to the time of enjoyment, estates are either in possession or in expectancy—that Is, in reversion or See also:remainder or executory interests (see REMAINDER). With regard to the mode of enjoyment, estates are either See also:joint, in common, in See also:coparcenary or in severalty. Exceptional •Tenures.—It has been already stated that there are still to be found survivals of the old pre-Conquest customary law. They are found both in the tenure and in the conveyance of land. The only customs of which judicial notice is taken are gavelkind (q.v.) and See also:borough-English (q.v.). Any other local customs, as in manors, must be proved by evidence. The tenures of frankalmoign and grand serjeanty were specially preserved by 12 Car. II. c. 24. Title.—This is the name given to the mode of acquisition of rights over real estate. Title may arise either by alienation, voluntary or involuntary, or by succession. Voluntary alienation is either inter vivos or by will. The former See also:branch is practically synonymous with conveyance, whether by way of sale, See also:settlement, mortgage or otherwise. As a general rule alienation of real estate inter vivos must be by See also:deed since 8 & 9 Vict. c. 106. Since that act a deed of grant has superseded the old forms of feoffment and lease and release. Considerable alterations in the direction of shortness and simplicity have been made in the law of transfer of real estate by the Conveyancing Acts 1881, 1882 and the Land Transfer Acts 1875 and 1897. The word " grant " is no longer necessary for a conveyance, nor are the old words of limitation " heirs " and " heirs of the body." It is sufficient to use the words " in fee-simple," " in tail," " in tail male," " in tail female." Many provisions usually inserted in deeds, such as covenants for title by a beneficial owner and powers of See also:appointment of new trustees, obtain statutory See also:sanction. Forms of mortgage, conveyance' and settlement are appended to the act. The Solicitors' Remuneration Act 1881 was passed as a necessary sequel to the Conveyancing Act, and the remuneration of solicitors now stands upon a different and more satisfactory basis. For acquisition by will and succession, see WILL; INHERITANCE. Involuntary alienation is by See also:bankruptcy (q.v.) and by other means of enforcing the rights of creditors over land, such as distress or execution. It may also arise by the exercise by the state of its right of eminent domain for public purposes, as under the Lands Clauses and other acts.' 2 In spite of this objection the division is adopted by the legislature; see, for instance, the Intestate Estates Act 1884. In the See also:category of corporeal hereditaments are also included certain accessories to corporeal hereditaments proper, such as growing crops, fixtures, title-deeds, &c. ' It should be noticed that an See also:easement in gross cannot exist. ' The right of the state to contribution from land for See also:revenue purposes and to See also:stamp duties on deeds perhaps falls under this See also:head. These imposts are really involuntary alienations of See also:part of the profit of the land. Restraints on Alienation.—The alienation of real estate may be subject to almost any conditions, provided that such conditions do not contravene the law. As a general rule there can be no restrictions upon the alienation of an estate in fee-simple; the two ideas are incompatible. In the case, however, of a married woman a See also:restraint on anticipation is allowed within certain limits (see RESTRAINT). In another direction the See also:imposition of a course of See also:devolution upon property is forbidden by the law against perpetuities (see See also:PERPETUITY), while the See also:accumulation of income is also forbidden with a few exceptions. Certain persons are by the general policy of the law disabled from exercising full proprietary rights, such as convicts, infants and lunatics. See also:Procedure.—In some cases rights attaching to real estate are protected by peculiar remedies. At an early period it became more convenient to try the right to the possession of, rather than the right to the property in, real estate. Possessory tended to supersede proprietary remedies, from their great simplicity and See also:elasticity. The general mode of trying the right to both property and possession was from the time of Henry II. the real action, the form called " writ of right " (after Magna Carta gradually confined to the court of common pleas) being used to determine the property, that called "See also:assise of novel disseisin " being the general means by which the possession was tried. About the reign of Elizabeth the action of See also:ejectment became the ordinary form of possessory remedy. Real actions existed until the Real Property Limitation Act 1833, by which they were finally abolished, with the exception of writ of right of dower, writ of dower unde nihilhabel, quare impedit and ejectment. Of these quare impedit (q.v.) appears to be the only one now in use. The assise of novel disseisin, the action of ejectment in both its See also:original and its reformed See also:stage, and finally the action for the recovery of land in use since the Judicature Acts are all historically connected as See also:gradual developments of the possessory action. There are certain matters affecting real estate over which the court of See also:chancery formerly had exclusive jurisdiction, in most cases because the principles on which the court acted had been the creation of equity. The Judicature Act 1873 assigned to the chancery division of the high court of See also:justice all causes and matters for (inter alia) the redemption or See also:foreclosure of mortgages, the raising of portions or other charges on land, the sale and See also:distribution of the proceeds of property subject to any See also:lien or charge, the specific performance of contracts between vendors and purchasers of real estates, including contracts for leases, the partition or sale of real estates, and the wardship of infants and the care of infants' estates. In the case of rent a See also:summary mode of remedy by act of the creditor still exists (see DISTRESS, RENT).
See also:Ireland.—The law of real estate in Ireland is the English law, which finally superseded the native law in See also: This is to a great extent the effect of the See also:home-See also:stead laws (see See also:HOMESTEAD AND EXEMPTION LAWS). The traces of the feudal origin of the law are, as might be expected, consider-ably less prominent than in England. Thus estates tail are practically obsolete; in some states they are specially forbidden by the state constitutions. The law of descent is the same in real and personal estate. Manors do not exist, except in the state of New See also:York, where they were created by the crown in colonial days (See also:Bouvier, Law Dict., " Manor "). Registration of deeds is general. In some states forms of deed are prescribed by statute. Conveyancing is for the most part simpler than in England. The holding of real estate by religious or charitable corporations is generally restricted by the act creating them rather than by anything like the English law of mortmain. Perpetuities are forbidden in most states. The right of eminent domain is at once acknowledged and limited by the Constitution of the United States. By See also:art. 5 of the Amendments private property is not to be taken for public use without just compensation. A similar- provision is found in many of the state constitutions. By an Act of See also:Congress of 9th See also:April 1866, c. 31, all citizens of the United States have the same right in every state and Territory as is enjoyed by See also: Lord See also:Baltimore in 1750 (I Vesey, 444) the court of chancery on this ground decreed specific performance of articles for settling the boundaries of the provinces of See also:Pennsylvania and See also:Maryland. The difficulty always arises that, although the court professes to act upon the conscience, it must indirectly act upon the property, and that it cannot carry its decision inta execution without the aid of the local tribunals. Additional information and CommentsThere are no comments yet for this article.
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