Use (law)

Last updated October 31, 2023

Use, as a term in the property law of common law countries, amounts to a recognition of the duty of a person to whom property has been conveyed for certain purposes, to carry out those purposes. In this context "use" is equivalent to "benefit".

Uses were equitable or beneficial interests in land. In early law a property owner could not dispose of his estate by will nor could religious houses acquire it.^[1] As a method of avoiding certain common law rules, the practice arose of making feoffments to the use of, or upon trust for, persons other than those to whom the seisin or legal possession was delivered, to which the equitable jurisdiction of the chancellor gave effect. The Statute of Uses was passed in 1536 in an attempt to remedy the abuses which it was said were occasioned by this evasion of the law. However, the Statute failed to accomplish its purpose.

Development of the use

Historian A. L. Brown summarises the use as a "where one or more persons hold land to the 'use' of another".^[2] One reason for the creation of uses was a desire to avoid the strictness of certain rules of the common law, which considered seisin to be all-important. Although the common law recognised a use in chattels from an early period, it was clear by the end of the 14th century that land law had no room for this notion. Uses, nonetheless, satisfied contemporary needs in 15th century England. Their first application in relation to land was to provide land to Franciscan friars, who were pledged to vows of poverty and could not own land. Instead, a proprietor could enfeoff (grant) land to a proxy tenant for the friars' use as cestuis que (intended beneficiaries). The law recognised the proxy as the landholder, while the friars used the land as his guests.

Uses served various purposes, including:

Substitute of wills: Before the Statute of Wills 1540, a tenant in fee simple could not devise the interest in the land by a will at common law. Upon his death the land devolved upon his eldest son or, if he died without leaving an heir, the land would escheat (revert) to his overlord. The use could avoid these results by allowing the tenant to convey his land to a friend, on the understanding that the friend would permit the grantor, and, after the grantor's death, the grantor's designated cestuis que to have the full benefit and enjoyment of the land.^{[ citation needed ]}
Avoidance of feudal burdens: By the device of a use, the tenant could avoid dues upon his death, since he was not seised of the land at his death.
Providing for grantor's wife: Since man and wife were considered to be one person at common law, a man could not convey land to his wife. This difficulty was overcome if the land was conveyed to a feoffee to uses to the use of the grantor's wife.
Avoidance of the Statutes of Mortmain: The statutes prohibited the conveyance of land to religious bodies. They were avoided by conveyance to a feoffee to uses to the use of a religious order.

The rapid development of the use was probably one of the consequences of the Black Death, during which many landowning nobility died, leaving their realty to their widows and minor orphans.

Enforcement of uses

The Court of Chancery eventually assumed the task of enforcing uses. Later, it decided that not only was the conscience of the feoffee to uses bound by the use, but also the conscience of his heir. Thus, on the death of the feoffee to uses the use could be enforced against the feoffee's heir to whom the legal fee simple estate had descended.

The idea of a tie in conscience was gradually extended, and with it the sphere of enforceability of the use. The modern position was reached by the beginning of the sixteenth century: The use could be enforced against anyone in the world acquiring an interest in the land other than a bona fide purchaser of the legal estate for value without notice of the use. In a conveyance "to A and his heirs to the use of B and his heirs", the common law took cognisance only of A and went no further. But if A attempted to act inconsistently with the dictates of his conscience, the Court of Chancery would enforce the use against him.

From this time, two different kinds of interests in the land could exist side by side, a fragmentation between legal and beneficial.

The Statute of Uses

From early on, legislation interfered with uses where they were employed for purposes that were regarded as improper. During the 14th and 15th centuries, legislation was passed which was designed to prevent uses being created so as to defraud creditors.

As the lord at the top of the feudal pyramid, the King suffered most from the employment of uses and evasion of tenurial incidents. The Statute of Uses (1536) was the culmination of various attempts by Henry VIII to solve the problem. The statute operated to execute the use so that the interest of the cestui que use, which was previously an equitable interest, was converted into a legal interest.^[3]

However, the Statute failed to accomplish its purpose,^{[ clarification needed ]} but the modern law of trusts arose out of this failure of the Statute of Uses.^[1] The Statute of Uses is also the basis of modern conveyancing.^[4]

Related Research Articles

The rule against perpetuities is a legal rule in common law that prevents people from using legal instruments to exert control over the ownership of private property for a time long beyond the lives of people living at the time the instrument was written. Specifically, the rule forbids a person from creating future interests in property that would vest beyond 21 years after the lifetimes of those living at the time of creation of the interest, often expressed as a "life in being plus twenty-one years". In essence, the rule prevents a person from putting qualifications and criteria in a deed or a will that would continue to affect the ownership of property long after he or she has died, a concept often referred to as control by the "dead hand" or "mortmain".

In English law, a fee simple or fee simple absolute is an estate in land, a form of freehold ownership. A "fee" is a vested, inheritable, present possessory interest in land. A "fee simple" is real property held without limit of time under common law, whereas the highest possible form of ownership is a "fee simple absolute," which is without limitations on the land's use.

In common law and statutory law, a life estate is the ownership of immovable property for the duration of a person's life. In legal terms, it is an estate in real property that ends at death, when the property rights may revert to the original owner or to another person. The owner of a life estate is called a "life tenant". The person who will take over the rights upon death is said to have a "remainder" interest and is known as a "remainderman".

A mortgage is a legal instrument of the common law which is used to create a security interest in real property held by a lender as a security for a debt, usually a mortgage loan. Hypothec is the corresponding term in civil law jurisdictions, albeit with a wider sense, as it also covers non-possessory lien.

A deed, commonly, is a legal document that is signed and delivered, especially one regarding the ownership of property or legal rights. More specifically, in common law, a deed is any legal instrument in writing which passes, affirms or confirms an interest, right, or property and that is signed, attested, delivered, and in some jurisdictions, sealed. It is commonly associated with transferring (conveyancing) title to property. The deed has a greater presumption of validity and is less rebuttable than an instrument signed by the party to the deed. A deed can be unilateral or bilateral. Deeds include conveyances, commissions, licenses, patents, diplomas, and conditionally powers of attorney if executed as deeds. The deed is the modern descendant of the medieval charter, and delivery is thought to symbolically replace the ancient ceremony of livery of seisin.

The Statutes of Mortmain were two enactments, in 1279 and 1290, passed in the reign of Edward I of England, aimed at preserving the kingdom's revenues by preventing land from passing into the possession of the Church. Possession of property by a corporation, such as the Church, was known as mortmain, which literally meant "dead hand". In medieval England, feudal estates generated taxes for the King, principally on the grant or inheritance of the estate. If an estate became owned by a religious corporation which could never die, could never attain majority, and could never be attainted for treason, these taxes never became payable. It was akin to the estates being owned by the dead, hence the term.

Seisin denotes the legal possession of a feudal fiefdom or fee, that is to say an estate in land. It was used in the form of "the son and heir of X has obtained seisin of his inheritance", and thus is effectively a term concerned with conveyancing in the feudal era. The person holding such estate is said to be "seized of it", a phrase which commonly appears in inquisitions post mortem. The monarch alone "held" all the land of England by his allodial right and all his subjects were merely his tenants under various contracts of feudal tenure.

Quia Emptores is a statute passed by the Parliament of England in 1290 during the reign of Edward I that prevented tenants from alienating their lands to others by subinfeudation, instead requiring all tenants who wished to alienate their land to do so by substitution. The statute, along with its companion statute Quo Warranto also passed in 1290, was intended to remedy land ownership disputes and consequent financial difficulties that had resulted from the decline of the traditional feudal system in England during the High Middle Ages. The name Quia Emptores derives from the first two words of the statute in its original mediaeval Latin, which can be translated as "because the buyers". Its long title is A Statute of our Lord The King, concerning the Selling and Buying of Land. It is also cited as the Statute of Westminster III, one of many English and British statutes with that title.

The Statute of Uses was an Act of the Parliament of England that restricted the application of uses in English property law. The Statute ended the practice of creating uses in real property by changing the purely equitable title of beneficiaries of a use into absolute ownership with the right of seisin (possession).

Under the feudal system in England, a feoffee is a trustee who holds a fief, that is to say an estate in land, for the use of a beneficial owner. The term is more fully stated as a feoffee to uses of the beneficial owner. The use of such trustees developed towards the end of the era of feudalism in the Middle Ages and declined with the formal ending of that social and economic system in 1660. The development of feoffees to uses may have hastened the end of the feudal system, since their operation circumvented vital feudal fiscal mechanisms.

In the Middle Ages, especially under the European feudal system, feoffment or enfeoffment was the deed by which a person was given land in exchange for a pledge of service. This mechanism was later used to avoid restrictions on the passage of title in land by a system in which a landowner would give land to one person for the use of another. The common law of estates in land grew from this concept.

Equitable conversion is a doctrine of the law of real property under which a purchaser of real property becomes the equitable owner of title to the property at the time he/she signs a contract binding him/her to purchase the land at a later date. The seller retains legal title of the property prior to the date of conveyance, but this land interest is considered personal property. The risk of loss is then transferred to the buyer – if a house on the property burns down after the contract has been signed, but before the deed is conveyed, the buyer will nevertheless have to pay the agreed-upon purchase price for the land unless the seller in possession or deemed in possession has failed to protect it. Such issues can and should be avoided by parties by stipulating in the contract who will bear the loss in such occurrences. The above rule varies by jurisdiction, but is the general rule.

<span title="Anglo-Norman-language text"><i lang="xno">Cestui que</i></span> Concept in English law regarding beneficiaries

Cestui que is a shortened version of "cestui a que use le feoffment fuit fait", literally, "the person for whose use/benefit the feoffment was made"; in modern terms, it corresponds to a beneficiary. It is a Law French phrase of medieval English invention, which appears in the legal phrases cestui que trust, cestui que use, or cestui que vie. In contemporary English the phrase is also commonly pronounced "setty-kay" or "sesty-kay". According to Roebuck, Cestui que use is pronounced. Cestui que use and cestui que trust are often interchangeable. In some medieval documents it is seen as cestui a que. In formal legal discourse it is often used to refer to the relative novelty of a trust itself, before that English term became acceptable.

Livery of seisin is an archaic legal conveyancing ceremony, formerly practised in feudal England and in other countries following English common law, used to convey holdings in property. The term livery is closely related to if not synonymous with delivery used in some jurisdictions in contract law or the related law of deeds. The oldest forms of common law provided that a valid conveyance of a feudal tenure in land required physical transfer by the transferor to the transferee in the presence of witnesses of a piece of the ground itself, in the literal sense of a hand-to-hand passing of an amount of soil, a twig, key to a building on that land, or other token.

Lease and release is literally the lease (tenancy) of non-tenanted property by its owner followed by a release (relinquishment) of the landlord's interest in the property. This sequence of transactions was commonly used to transfer full title to real estate under real property law. Lease and release was a mode of conveyance of freehold estates formerly common in England and in New York for tax avoidance and speed. Between its parties it achieves the same outcome as a deed of grant/transfer/conveyance.

A deed of trust refers to a type of legal instrument which is used to create a security interest in real property and real estate. In a deed of trust, a person who wishes to borrow money conveys legal title in real property to a trustee, who holds the property as security for a loan (debt) from the lender to the borrower. The equitable title remains with the borrower. The borrower is referred to as the trustor, while the lender is referred to as the beneficiary.

The history of English land law can be traced back to Roman times. Throughout the Early Middle Ages, where England came under rule of post-Roman chieftains and Saxon monarchs, land was the dominant source of personal wealth. English land law transformed further from the Saxon days, particularly during the post-Norman Invasion feudal encastellation and the Industrial Revolution. As the political power of the landed aristocracy diminished and modern legislation increasingly made land a social form of wealth, subject to extensive social regulation such as for housing, national parks, and agriculture.

Earl of Oxford's case (1615) 21 ER 485 is a foundational case for the common law world, that held equity takes precedence over the common law.

The Rule in Shelley's Case is a rule of law that may apply to certain future interests in real property and trusts created in common law jurisdictions. It was applied as early as 1366 in The Provost of Beverly's Case but in its present form is derived from Shelley's Case (1581), in which counsel stated the rule as follows:

when the ancestor by any gift or conveyance takes an estate of freehold, and in the same gift or conveyance an estate is limited either mediately or immediately to his heirs in fee simple or in fee tail; that always in such cases, "the heirs" are words of limitation of the estate, not words of purchase.

The history of equity and trusts concerns the origin of the body of rules known as Equity, Uses, English trust law and their development into the modern body of trust law that spread with the Common law to the Commonwealth and the United States.

References

1 2 One or more of the preceding sentences incorporates text from a publication now in the public domain : Chisholm, Hugh, ed. (1911). "Uses". Encyclopædia Britannica . Vol. 27 (11th ed.). Cambridge University Press. p. 809.
↑ Brown, A. L. (1989). The Governance of Late Medieval England, 1272-1461 (1st ed.). London: Edward Arnold. p. 133. ISBN 978-0-71316-380-3.
↑ Holdsworth, William (1922). A History of English Law. Vol. 1 (3rd ed.). pp. 454–455.
↑ One or more of the preceding sentences incorporates text from a publication now in the public domain : Chisholm, Hugh, ed. (1911). "Trust and Trustees". Encyclopædia Britannica . Vol. 27 (11th ed.). Cambridge University Press. p. 330.

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[eb11-1] 1 2 One or more of the preceding sentences incorporates text from a publication now in the public domain : Chisholm, Hugh, ed. (1911). "Uses". Encyclopædia Britannica . Vol. 27 (11th ed.). Cambridge University Press. p. 809.

[2] Brown, A. L. (1989). The Governance of Late Medieval England, 1272-1461 (1st ed.). London: Edward Arnold. p. 133. ISBN 978-0-71316-380-3.

[3] Holdsworth, William (1922). A History of English Law. Vol. 1 (3rd ed.). pp. 454–455.

[4] One or more of the preceding sentences incorporates text from a publication now in the public domain : Chisholm, Hugh, ed. (1911). "Trust and Trustees". Encyclopædia Britannica . Vol. 27 (11th ed.). Cambridge University Press. p. 330.

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