Select Page

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

Professor Sclar Fall ’08
(Possessory Interests in land)
I. Up from Feudalism -scholars argue over reality of the time
            A.        Tenure -a person’s position in terms of their relationship to the land
                        1. King -Tenant in Chief- Mesne Lord – Tenant in Demesne
                        2. Tenants in Chief had to provide Services to the King usually by subinfeudation.
(Process whereby feudal tenants granted smaller estates out of their holdings to others)
                        3. Seisin – freeholders (Which included fee simple, fee tail, and life estate; a freeholder is an estate of land without a fixed period of duration. An estate in fee is owned by the holder and his heirs forever; a life estate is owned by the holder for his life or the life of another, a determinable freehold is owned in fee until the occurrence of some condition (which may not occur) had possessory use of the land and it could only be transferred by “livery of seisin” (whereby real property is transferred from grantor to grantee).
            B.         Feudal Tenures and Services (Free Tenures: military, economic or socage, and                                 support of the church or frankalmoign)
                        1. Even though they were sometimes nominal they were important because they
were evidence of a tenurial relationship.
                        2. Villenage (involves tenants of the lowest order who were obliged to perform any services demanded by their landlord) was un-free tenure -the servants of King and Lord’s manors
            C.        Feudal Incidents -fixed obligations that kept pace with inflation and maintained                                    value
                        1. Homage and Fealty -got protection from allegiance (binding man to man)
                        2. Aid-ransoming lord captors, knighting of eldest son, marriage of eldest daughter
                        3. Forfeiture -if breached oath or refused services (land taken away)
Liabilities at Death of Tenant:
                        4. Wardship and marriage -when tenant died became heir’s guardian, keeping
profits of the land until heir is of age and has the ability to sell heir in marriage
                        5. Relief- sum heir paid to come into inheritance
                        6. Escheat -when tenant died without heirs, goes to lord from whom it was held
            D.        Avoidance of Taxes (feudal incidents) continuing effort to avoid taxes
                        1. Substitution -a new tenant altogether (required lord’s consent)
                        2. Subinfeudation -new tenant under you that provides you the services and
allows you to avoid feudal incidents
                                    a. Could not just grant land to Al if you are A (couldn’t grant to eldest son).                               By doing this and demanding only a rose at midsummer, the lord loses his                                        rights to wardship, escheat, etc. Because Ai comes into the picture when A                          dies and Al just gives up the rose at midsummer.
            E.         Statute Quia Emptores (1290) prohibited subinfeudation in fee simple (an estate in                 land without limitations on it which gives the owner absolute power… also called fee                         or fee simple absolute)
                        1. Allowed substitution without consent so it increased alienability but allowed
more land to be directly owned by King
                                    a. Alienability is desirable because otherwise B will not agree to buy land if
                                    it’ll only last as long as A lives.

the real property transfers to heirs who are person surviving decedent (not spouse)); issue (lineal decedents – decedent’s children and their children) if no issue, then parents (who are considered ancestors, if none then collaterals (uncles, aunts, brothers and sisters).
III. The Fee Tail
 The desire to make land inalienable – “to A and the heirs of his body” -when A’s bloodline runs out it reverts to grantor or goes to another family by remainder. Tenant in fee tail could alienate his possessory interest but not cut off the rights of his issue (the future interest).
Note: every fee tail has a reversion or remainder.
            A.        Judges allowed a method to “bar the entail” called common recovery (which was an                   expensive suit), in the 19th c. finally gave power to disentail by conveying fee simple                      to another. THIS INCREASED ALIENABILITY
            B.         Fee tail has been abolished in all states but Del., ME, MA, RI -here fee tail tenant can
                        only convert a fee tail into fee simple by a deed executed during life, not by will
            C.        In states that abolish two categories exist to determine what “to A and the heir of his
                        body, and if A dies without issue to my daughter B and her heirs” creates.
                        1. Creates a fee simple in A, and that any gift over on A’s death W/O issue is void ­
neither A’s issues not B takes anything – statute automatically disentails a fee tail.