Feudalism

• The French Revolution converted the feudal order into a liberal system of ownership in which a single owner could own and alienate (sell, give away, transfer by will) his or her entire interest in a piece of land.

• The liberal idea is that a piece of land should be owned in exactly the same way that a chattel (a piece of movable property) can be owned.

• The whole idea of the feudal system was that land was different; land provided the basis of the interlocking set of obligations that constituted the basic structure of society.

• The King used to grant parcels of land to certain powerful figures in return for their undertaking obligations of loyalty, support, and service to the king. These obligations to the king were known as homage and fealty.

  • The person who owed these to a lord was called a vassal or tenant.

• The tenants-in-chief held their grants directly from the king; these earls and barons were vassals to the king, their lord.

• The king could not risk losing control over the land entirely, and therefore he held the ultimate interest in the land.

• The idea of ownership was divided, with the right to possess the land in the vassal but subject to certain rights in the lord, including the right to take back the land if the tenant failed to maintain the tenant’s duties to the lord.

The System of Estates

• The law of real property in the common law today retains the arcane terminology of the feudal past.

• Grantor: The person who holds an interest in property and then transfers it to someone else. The grantor can transfer only as much of an interest as the grantor holds. So, if the grantor holds a lease as the tenant and has the right to assign the lease, the grantor can transfer only the lease, and not the whole ownership of the property.

• Grantee: The person who receives the transfer of an interest in property from someone else. Once a person has received an interest in property, the person may then grant it on to others; thus, every grantee can become a grantor.

• Estate: The “status” in the property.

• Fee: The person who had a right to possess the land had a fee.

• Fee Simple: The most comprehensive estate the law allows. It is alienable, in that it can be given or sold to another during the life of the grantor, and it is heritable, in that it will descend at the owner’s death either to the “heirs” designated by law, or later, to “devisees” named in a testament written before death.

• Future Interest: Estates that were not possessory were in the nature of future interests, which means that the person holding the estate acquires in the present the right to possess sometime in the future.

• Reversion: The most common form of future estate kept by the grantor, keeping some interest that limits the scope of the fee given to the grantee. Whenever a grant of less than all of the interests in a fee is made, the common law implies a reversion to the grantor.

• Remainder: The remainder is like a reversion, except that it is given to a grantee, a third party who was not (or need not have been) the prior holder of the fee.

• The earl or baron who was the tenant-in-chief could, usually with the king’s permission, grant the land to another person and transfer the obligations, in whole or in part, to the third person. This was called the process of subinfeudation.

• The vassal would become a mesne lord, or intermediate lord over another vassal or vassals who owed duties to him.