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Property I
Rutgers University, Newark School of Law
Sclar, Diana

PROPERTY: Feudalism & Freehold Estates

I.                    Tenure – a person’s position in terms of their of their relationship to the land
1.      King – Tenant in Chief – Mesne Lord – Tenant in Demesne (had seisin only)
— Seisin: possessory use of the land
2.      Tenants in Chief had to provide services (knight services, religious services, or non-knight services) to the King. The rendering of knight services was usually accomplished by subinfeudation
3.      Freehold = fee simple, fee tail, or life estate (responsible for feudal incidents and services)
–Freeholders had possessory use of the land and it could be only be transferred by “livery of seisin”
— Livery of seisin: A ceremony in which title was transferred (replaced by delivery of 
4.      Nonfreehold = leasehold, landlord-tenant relationship (JUST possession)

II.                 Feudal tenures and services
n       TENURES:
1) Free tenure: Military, economic or socage and support of the church or frankalmoign
— These 3 above were the 3 social orders for feudal services. Even though the services   
were sometimes nominal they were important because they were evidence of tenure                        relationship.
2) Unfree tenure: The servants/peasants who worked at king and lord’s manor.
— Their copyholds eventually became freeholds
n       SERVICES: Obligations that attached to the land. They were eventually commuted to
money payments so that the government could hire mercenaries for the army
— Subinfeudation doesn’t decrease services, but DOES decrease incidents

III.               Feudal Incidents – Obligations that kept pace with inflation and maintained value; They do not run with the land Analogous to taxes
1)      Homage and Fealty – got protection from allegiance
2)      Aid – In these 3 financial emergency situations, a lord could demand aid from tenants: ransoming lord captors, knighting of eldest son, marriage of eldest daughter
3)      Forfeiture – if breached oath or refused services, land was taken away
4)      Wardship and marriage – when tenant died, the lord became heir’s guardian, thereby having the right to keep profits of the land until heir is of age (21) and the ability to sell heir in marriage
5)      Relief – when a tenant dies, heirs had to pay lord to claim their rightful inheritance once they come of age (maybe a year’s rent)
6)       Escheat – when tenant died without heirs, land goes back to the lord (In modern times, the land goes to the state)

IV.            Avoidance of Taxes (feudal incidents) continuing effort to avoid taxes
§         Substitution (analogous to assignment) – a tenant who did not want to remain in the feudal ladder could substitute another tenant in his place with his lord’s consent.
— Differs from subinfeudation because the tenant substitutes another tenant in his place in the             feudal ladder, whereas with subinfeudation the tenant creates a new tenant beneath him.
— EX: O to A. A substitutes B. If B doesn’t fulfill services, then A owes a personal             obligation to O and not a land obligation
§         Subinfeudation (analogous to sublease) – when a tenant subinfeudates, he becomes mesne or middle lord. The new tenant under tenant will provide him with services and allows him to avoid feudal incidents. 
— A tenant in chief and a lesser tenant could not shift a service from the land, which was forfeited if the services were not performed.
— Subinfeudation decreased the value of incidents because as land keeps on being divided, the value of it decreases PLUS the land doesn’t escheat if it’s been subinfeudated
— EX: If O subinfeudates to A, A must perform services, and A will have the right to

1. Disabling Restraint: A restraint withholding from the grantee the power to transfer his interest. (One cannot transfer more than one holds)
2. Forfeiture Restraint: If grantee attempts to transfer his interest, it is forfeited.
3. Promissory Restraint: The grantee promises not to transfer interest—enforceable by damages or injunction.
4. All restraints on alienation of a fee simple are void.
1. Restraints make property inalienable, and thus unmarketable.

2. Restraints perpetuate concentration of wealth.

3. Restraints discourage improvements on land; why improve when you have no future interest

4. Restraints prevent owner’s creditors from reaching property.

C.     Inheritance of Fee Simple: If person dies intestate (without a will), the land will go the heirs in the order below:
n       Heirs: persons who survive the decedent and are designated as heirs by state’s statute of descent. 
1.      Issue: descendants including children, grandchildren. 
— At common law, the kid must be born in wedlock and not adopted. Today, that is not the case. Also, in early common law, everything went to the eldest son due to primogeniture – which no longer exists
— Also, at common law, spouses did not count as issue. Today, they do and they have the same equal share in the estate as the children.
— If a child predeceases the decedent, that child’s issue will take the parent’s share in 1 of 2 ways:
a. Right of representation (per stirpes-by the stocks)