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Property I
University of Iowa School of Law
Kurtz, Sheldon F.

 

Sheldon Kurtz
Property – Fall 2014
Iowa Law
Moynihan’s Real Property (Green Book)



Chapter 1

The Domesday Book:  comprehensive survey of the land in England

Free and Common Socage
A.      Demesne lands:  retained by the lord for his own possession
1.       Worked by the villeins:  serfs, not slaves
a.       No rights against the lord except for those of protection
b.      Rights of free man, against a third person
2.       Rights of villain eventually became copyhold tenure
a.       Right to transfer land upon payment to the lord
b.      Land could only be transferred by surrender and admittance
c.       Abolished in 1922, by the Law of Property Act of 1926

The Incidents of Free Tenure
A.      Homage and Fealty
1.       Homage:  tenant acknowledges himself as the man of the lord
a.       Became obsolete tenure ceased to be military tenure
2.       Fealty:  oath sworn by tenant to be faithful to his lord
a.       Not used after the end of the feudal period
B.      Relief and Primer Seisin
1.       Relief:  sort of like a feudal inheritance tax, a sum payable to the lord by the heir of a deceased tenant for the privilege of succeeding to his ancestor’s lands
–          Inheritance was a privilege that had to be bought and wasn’t an unconditional right
–          Payment of relief by the heir of a subtenant entitled him to immediate possession
2.       Primer Seisin:  first seisin
–          King entitled to primer seisin if his tenant-in-chief died à got all of the deceased tenant’s land
C.      Wardship and Marriage
1.       If a tenant died and his heir was a male under 21 or  a female under 14, the lord was entitled to wardship of both the person and the lands of the heir
–          Lord entitled to rents and profits of the lands
–          Didn’t have to account to the heir
–          Continued until male attained age of majority or until female married OR turned 16
–          Lord has interest in who female married so she wouldn’t marry an enemy of his
D.      Aids: financial contributions made to the lord by the tenant
1.       Abolished in 1660
E.       Fines for Alienation
1.       Quia Emptores (1290):  granted to every “freeman” the right to alienate land without paying a fine to the lord
–          Didn’t affect the rights of the king, so tenants in capite (the tenant-in-chief) still had to pay
–          Completely ended in 1660
F.       Escheat
1.       If a tenant died without an heir, the land returned to the lord of the fee (was escheated)
2.       If tenant was convicted of a felony, was escheated because it had lost its inheritable quality
–          Escheat for felony abolished in 1870

Statutes Affecting Tenure
A.      Quia Emptores (1290):  All tenure reduced to common socage
1.       To protect the lords against alienation by sub-infeudation
–          Sub-infeudation:  If B holds land under O and conveys some or all of the land to C, B becomes a mesne lord and new tenure created under B and C
–          May minimize the value of incidents of tenure due to O
2.       Gave mesne-tenants the right to alienate their lands without payment of a fine to the overlord
3.       Transferee wouldn’t hold land under the transferor, but instead under the transferor’s lord
4.       Free alienation by substitution allowed, but sub-infeudation not allowed
5.       MAIN RESULT:  To prevent the creation of new tenures
6.       Only applicable to conveyance of estates in fee simple
B.      Tenures Abolition Act (1660)
1.       Practically all lay free tenure became socage tenure
–          Obligations of that tenure were usually to pay a rent and a relief amounting to one year’s rent
2.       Converted tenure by knight service into tenure of free and common socage
3.       Abolished incidents of wardship and marriage, aids, primer seisin, fines for alienation, homage, and scutage
4.       Didn’t affect frankalmoin or copyhold tenure
5.       Didn’t abolish services attached to grand serjeanty
6.       Crown implemented a beer and beverage tax to make up for revenue lost from Tenures Abolition Act

Tenure in the United States
A.      Original colonial land held in tenure
1.       Quit rent:  annual payment of small sum of money
B.      After Revolution, lands held in tenure of the state

Effects of the Tenure
A.      Statute of Uses:  directed  at attempts to evade feudal dues by conveyances to uses

The Meaning of Seisin: Possession under claim of a freehold estate

The Significance of Seisin
A.      Seisin could never be suspended
B.      No limitation of the estate allowed if it was going to put the seisin in abeyance

The Decline of Seisin
A.      Dower Act )1833):  a widow should have dower although her husband wasn’t seised during coverture
B.      Inheritance Act (1833): changed the rule that descent of land must be traced from the person last seised
C.      1837: right of entry of a disseisee was made devisable
D.      1845:  right made transferable by deed
E.       In United States
1.       In most jurisdictions, rule that an owner who has been disseised has no title to land has been rejected or abrogated by statute
2.       Now absorbed into law of adverse possession















Chapter 2:  Freehold Estates

Theory of Estates
–          Fee simple:  the estate with maximum allowable interest; potentially infinite duration
–          Life estate:  has finite duration
–          In medieval times, the only states given full protection were the freehold estates:  fee simple, fee tail, and life estate
·         Seisin was attached to these estates
–          Later common law recognized term of years (preceded the leasehold estate)
A.      The Fee Simple
1.       Three hallmarks of fee simple are (1) alienability, (2) devisability, and (2) descendibility
2.       Starting in 13th centu

ted condition – not a limitation
a.       Invokes power in the grantor to terminate the estate if the condition is broken IF THE GRANTOR CHOOSES
–          Grantee’s estate doesn’t automatically end when the condition is broken
v  Ex: O d A for life, but if A doesn’t use the land for residential purposes… A: F.S. subject to condition subsequent and O has possibility or right of entry for condition broken
2.       the power of termination is alienable in some states, and is usually descendible and devisable

C.      Main difference between F.S. Determinable and F.S. on Condition Subsequent is that with the former, the f.s. automatically expires by force of the limitation, and the latter estate exists until it is divested through power of termination **
D.      Statute of limitation
1.       If the holders of the future interests don’t exercise their right after limitation or conditions are broken, the possessor can claim right by adverse possession
E.       Qualified Fees not used as often anymore since there are covenants and zoning laws
F.       Courts usually favor the F.S. on condition subsequent
G.     F.S. Subject to Executory Interest (f.s. subject to executory limitation)
1.       Occurs if the f.s. subject to condition subsequent is divested in one party and is given to another person, other the grantor’s successors or the grantor himself

Fee Simple Conditional and Fee Tail
A.      Statute De Donis Conditionalibus (1285):  abolish the f.s. conditional and create the estate in fee tail
1.       Before 1285, gift to A and heirs of his body conveyed a f.s. conditional in A
–          Construed as conditional on A having an heir of his body
–          Upon birth of A’s issue, the condition will have been fulfilled and A can alienate in fee simple
2.       After De Donis, a gift of land to “B and heirs of his body” created an estate in fee tail in B
–          Would last as long as there were any lineal descendants of B living
–          If B (a tenant in tail) conveyed to C, it could only be for a life estate because De Donis prevented B from making a conveyance that would cut off the rights of B’s issue
–          If B dies without issue, the land reverts back to O
B.      Restrictions to Fee Tail
1.       Fee Tail Male: granted to a male and male heirs of his body
2.       Fee Tail Female:  granted to a male and the female heirs