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

Property Outline

University of Iowa

Fall 2015

Sheldon Kurtz


Established the feudal property sysem

1285: De Donis Conditionalibus

Abolished the Fee Simple Conditional and created a new kind of inheritance the estate in fee tail.
Recognized remainders as valid estates and gave them legal protection.

1290 Statute Quia Emptores

Eliminated the restrictions on alienation for a tenant during his lifetime.
Eliminated grants of land under Frankalmoin Tenure except for with permission from king.

Courts permitted the rights to issues of tenant in tail to be extinguished by the “common recovery” and for reversioners to be similarly extinguished.

Allowed property owners to dispose of their lands by will to anyone.
Heirs were no longer assured they would receive property after B died.
Created divisibility
Right of Entry incident to a reversion would pass with a transfer of the reversion.

1660 Tenures Abolition Act

Eliminated any requirement to pay a lord for the privilege of exercising right of alienation.
Started the ability to have a use = unexecuted use enforced in equity (basis of the modern trust)

1677 Statute of Frauds:

Required realty conveyances be made in writing.

A present freehold estate could be transferred by a simple deed of grant.

Fines and recoveries were abolished and tenant in tail in possession was permitted by the statute to dock or bar the entail by a deed recorded to the Court of Chancery and convey the land to a third person in fee simple.
Eliminated the Doctrine of Worthier Title.
Eliminated the ability to convey land by Conveyance by Fine or Common Recovery.

Eliminated the Rule in Shelley’s Case
No more conveyances of feoffment with livery of seisin.

1925 Administration of Estates Act

Eliminated primogeniture.


The Norman Settlement (1066)

William the Conqueror became king and those who opposed him lost their land.
Land was distributed to supporters (primarily from the king to members of his military.)
Thousands of English estates were merged into fewer than one hundred major “honors” or baronial estates.

Basis for Feudal Tenure:

Feudalism is a generic term that may be used to describe the social structure of Western Europe during the Middle Ages.
A relationship between Lords and Vassals (or their tenants).

Relationship was usually established by a swearing of homage and a granting of land with specific services attached to the actual land.

Military Service:

Initially military service was the most important (and the most common) form of tenure.
The King granted land and designated an obligation supply knights when required.This then increased the number of knights overall from 800 to 5000.

Creation of Sub-Tenures:

Tenants-in-Chief slowly but then more commonly made allotments of land to their knights and to others.
Initially the sub-infeudation was simply for personal service (serjeanty) or for military.
Smaller landowners began surrendering their land to be “the man” of the lord and hoped to receive a “mightier friend than the law could be.”
The progression of the Sub-tenures was organized in the Doomsday Book.

William ordered a detailed survey of England during last year of reign.It summarized the holdings of each of the tenant’s-in-chief and organized all tenures and became a very exact legal and statistical record.

Legal Relationship Between Lord and Tenant:

Feudal Bond:

The lord owed protection and a warranty to the tenant and the tenant owed services to the lord.
Tenant in Service:Land had service stipulated in the grant and ran with it.You could not transfer the land without a transfer of the feudal obligation.

If the lord did not receive the service he had a remedy of distress (seizing chattel or even the land.)

Tenant Demesne: Occupied property rights and had a general right to possess, use and enjoy the land.Land’s owned by the lord for personal enjoyment.

Feudal Hierarchy:

The same piece of land could be subject to property rights in several different persons and subject to different tenures attaching to each property right.

Any person having an intermediate place in the structure held the land in dual capacity.They were tenants of those above them and lords (mense lords) of those holding under them.

The System was a pyramid structure:

Tenants-in-Chief (primarily military)
Tenants of Lower Social Standing (honour or barony)
Peasants (Villeins)

Classification of Tenures:

By the 13th century the distinction between free and unfree tenures was fixed and had become established.
Test to determine the nature of the land (free or unfree):What is the character of the services required to rendered by the tenant?
Legal Difference:Tenant in free tenure was protected by the King’s courts and had the benefit of real actions; the unfree tenant only had a remedy in his lord’s court.

Free Tenure: (Four Distinct Types)

Tenure by Knight Service: (most honorable)

Most tenants-in-chief were this service- carried an obligation to render military service but evolved into a required monetary payment of scutage which covered the salary of the royal knights.

: (personal service)

Tenure with an obligation to perform personal services of definite time and location of performance.
Eventual split into grant and petit serjeanty.

Grand = King’s personal service.
Petit = Menial or small services (providing supplies)

(free alms)

Arose from a gift or land to a church, religious group or ecclesiastical official in return for religious services such as saying mass or prayers.
No secular obligation.
Eliminated by Quia Empotres 1290 except by King’s permission.

Free and Common Socage: (only surviving tenancy)

Required service of a agricultural or monetary nature.Rendered either agricultural products or a periodic monetary rent.

Unfree Tenure:

Lands (demesne lands) retained by the lord in his own possession and enjoyment were services.Labor force on these lands supplied by villeins.

Villeins were serfs but not slaves.He had no rights except security of life and limb from lord but he was a free man against a third person.
Villein received protection in manorial court (not royal court).

Gradually this turned into a type of customary tenure and was not dependent on the lord’s will of where they lived, when and how they worked.

Incidents of Free Tenures:

There were incidents imposed on the tenants that were derived from the feudal relationship and apart from any express agreement.
The principle incidents were:

Homeage and Fealty:

Homeage- feudal ceremony where tenant kneeled unarmed before the lord and solemnly acknowledged that he was the man of the lord.

Relief and Primer Seisin: (feudal inheritance tax)

A sum payable to the lord by the heir of the deceased tenant for the privilege of succeeding upon the lands.Only after an official inquest, homage, and payment of relief could the heir be admitted to seisin or possession.

Wardship and Marriage:

If a tenant (usually a tenant-in-chief) died leaving a male under 21 or daughter under 14 the lord or king was entitled to wardship.The lord had the rights to rents and profits on the land with no duty to account to their.
This continued until the female married or reach 16.The lord could arrange suitable marriages and pocket the profit.
Scoage did not have the burdensome aspect of wardship and marriage.

(finances for emergency times)

Tenants were required to contribute for specific causes (i.e. ransom of the

n.If they don’t then the grantee’s estate will continue.

A has a fee simple subject to a condition subsequent and O has a right of entry for condition broken.The right of entry (power of termination) is devisable and descendible but only alienable in some jurisdictions.

A cause of action for possession begins to run in favor of the holder of the possibility of the reverter immediately upon the happening of the limitation set forth- if the grantor (or successors) doesn’t use power of termination then they may lose by adverse possession.

Fee Simple Subject to an Executory Interest:

(Fee Simple Subject to an Executory Interest + Executory Interest = Infinity.)
Exists when the fee simple is subject to a condition subsequent, and upon occurrence causes the interest to be divested in favor of a third person.

C has an executory interest- if the condition arises C does not have to exercise any power of termination, and B’s estate terminates automatically.

Fee Simple Conditional and the Fee Tail:

Fee Simple Conditional: (Fee Simple Conditional + Possibility of Reverter = Infinity)

Prior to 1285 a gift to “A and the heirs of his body” created a fee simple conditional.A grantor retained a possibility of revert.The court held that upon the happening of a condition (A had a child) the condition was fulfilled and A could alienate the land in fee simple.But, if A had issue but later died without alienating and had no issue surviving him…the land went back to the grantor.
If A did not alienate the gift and died with issue then his heir takes a fee simple conditional as well.
Such gifts were also given to subsidize marriage so that if the couple didn’t have issue the land grantor (usually father-in-law.)

Estate in Fee Tail:(Fee Tail + Reversion in Fee Simple = Infinity)

After 1285 DeDonis was passed and a gift to “A and the heirs of his body” now created an estate in fee tail.
This estate would last as long as there were any lineal descendants of A living and upon failure of such issue the land would revert to the donor or his heirs.

The tenant in tail could convey to a third party but they only acquired an estate for the tenant in tail’s life.The rights of the issue could not be cut off by alienation.

Estate in Fee Tail was not subject to (beyond tenant’s lifetime) to forfeiture for treason, attainder, felony, or debt liability of former tenants in tail.
Taltrum’s Case (1472): Courts permitted tenant’s in tail to extinguish reversion by common recovery.
Fines and Recoveries Act (1833): Fines and recovery were abolished and the entail (last in line) was allowed to convey to a third person in fee simple via the Court of Chancery.
Creation of a Estate in Fee Tail:

Under a conveyance, “heirs of the body” had to be included or in some cases at least “heirs”
Under a Will: The intention of the testator, if clearly expressed could give effect to a fee tail even in the absence of the words ‘heirs”
The words “of the body” were commonly used in both deeds and wills to show the intention to create a fee tail rather than a fee simple.But words of equal intention were just as effective.