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Real property and personal property are the main classifications of property in the common law. Real property refers to land and the improvements made by human efforts—buildings, machinery, the acquisition of various property rights, and the like. Real property is also termed realty, real estate, and immovable property.

In countries with personal ownership of real property, civil law protects the status in realty markets, where realtors work in realty selling real estate. Scottish civil law calls it heritable property, and in France it is said immobilier.


Identification of real property

To be of any value a claim to any property must be accompanied by a verifiable and legal property description. Such a description could make use of natural boundaries such as river and roads, or make use of purpose made markers such as cairns, posts, survey marks, etc.

Estates & ownership interests defined

The law recognizes different sorts of interests, called estates, in real property. The type of estate is generally determined by the language of the deed, lease, or bill of sale through which the estate was acquired. Estates are distinguished by the varying property rights that vest in each, and that determine the duration and transferability of the various estates. A party enjoying an estate is called a "tenant."

Some important types of estates in land include:

  • Fee simple: An estate of indefinite duration, that can be freely transferred. The most common and perhaps most absolute type of estate, under which the tenant enjoys the greatest discretion over the disposition of the property.
  • Conditional Fee simple: An estate lasting forever as long as one or more conditions stipulated by the deed's grantor does not occur. If such a condition does occur, the property reverts to the grantor, or a remainder interest is passed on to a third party.
  • Fee tail: An estate which, upon the death of the tenant, is transferred to his heirs.
  • Life estate: An estate lasting for the natural life of the grantee, called a "life tenant." If a life estate can be sold, a sale does not change its duration, which is limited by the natural life of the original grantee.
    • A life estate pur autre vie is held by one person for the natural life of another person. Such an estate may arise if the original life tenant sells her life estate to another, or if the life estate is originally granted pur autre vie.
  • Leasehold: An estate of limited duration, as set out in a contract, called a lease, between the party granted the leasehold, called the lessee, and another party, called the lessor, having a longer lived estate in the property. For example, an apartment-dweller with a one year lease has a leasehold estate in her apartment. Lessees typically agree to pay a stated rent to the lessor.

A tenant enjoying an undivided estate in some property after the termination of some estate of limited duration, is said to have a "future interest." Two important types of future interests are:

  • Reversion: A reversion arises when a tenant grants an estate of lesser maximum duration than his own. Ownership of the land returns to the original tenant when the grantee's estate expires. The original tenant's future interest is a reversion.
  • Remainder: A remainder arises when a tenant with a fee simple grants someone a life estate or conditional fee simple, and specifies a third party to whom the land goes when the life estate ends or the condition occurs. The third party is said to have a remainder. The third party may have a legal right to limit the life tenant's use of the land.

Estates may be held jointly as joint tenants with rights of survivorship or as tenants in common. The difference in these two types of joint ownership of an estate in land is basically the inheritability of the estate and the shares of interest that each tenant owns.

In joint tenancy with rights of survivorship deed, or JTWROS, the death of one tenant means that the surviving tenant(s) become the sole owner(s) of the estate. Nothing passes to the heirs of the deceased tenant. In some jurisdictions, the specific words "with right of survivorship" must be used, or the tenancy will assumed to be tenants in common without rights of survivorship. Co-owners always take a JTWROS deed as equal shares, so each tenant must own an equal share of the property regardless of contribution to purchase price. If the property is sold or partitioned, the proceeds must be distributed equally with no credits given for any excess than any one co-owner may have contributed to purchase the property.

The passing of a co-owner of a tenants in common (TIC) deed will have a heritable portion of the estate in proportion to his ownership interest which is presumed to be equal amongst tenants unless otherwise stated in the transfer deed. However, if TIC property is partitioned, some states may grant a credit for unequal contribution to purchaes price (unlike a partition of a JTWROS deed).

Real property may be owned jointly with several tenants, through devices such as the condominium, housing cooperative, and building cooperative.

Jurisdictional peculiarities

In the law of almost every country, the state is the ultimate owner of all land under its jurisdiction, because it is the sovereign, or supreme lawmaking authority. Physical and corporate persons do not have allodial title; they do not "own" land but only enjoy estates in the land, also known as "equitable interests."


England and Wales

In the United Kingdom, The Crown is held to be the ultimate owner of all real property in the realm. This fact is material when, for example, property has been disclaimed by its erstwhile owner, in which case the law of escheat applies. In some other jurisdictions (not including the United States), real property is held absolutely.

English law has retained the common law distinction between real property and personal property, whereas the civil law distinguishes between "movable" and "immovable" property. In English law, real property is not confined to the ownership of property and the buildings sited thereon – often referred to as "land." Real property also includes many legal relationships between individuals or owners of land that are purely conceptual. One such relationship is the easement, where the owner of one property may enjoy the right to pass over a neighboring property. Another is the various "incorporeal hereditaments," such as profits a prendre, where an individual may have the right to take crops from land that is part of another's estate.

English law retains a number of forms of property which are largely unknown in other common law jurisdictions such as the advowson, chancel repair liability and lordships of the manor. These are all classified as real property, as they would have been protected by real actions in the early common law.


Each U.S. State except Louisiana has its own laws governing real property and the estates therein, grounded in the common law. In Arizona[citation needed], real property is generally defined as land and the things permanently attached to the land. Things that are permanently attached to the land, which also can be referred to as improvements, include homes, garages, and buildings. Manufactured homes can obtain an affidavit of affixture.

Economic aspects of real property

Land use, land valuation, and the determination of the incomes of landowners, are among the oldest questions in economic theory. Land is an essential input (factor of production) for agriculture, and agriculture is by far the most important economic activity in preindustrial societies. With the advent of industrialization, important new uses for land emerge, as sites for factories, warehouses, offices, and urban agglomerations. Also, the value of real property taking the form of man-made structures and machinery increases relative to the value of land alone. The concept of real property eventually comes to encompass effectively all forms of tangible fixed capital. with the rise of extractive industries, real property comes to encompass natural capital. With the rise of tourism and leisure, real property comes to include scenic and other amenity values.

Starting in the 1960s, as part of the emerging field of law and economics, economists and legal scholars began to study the property rights enjoyed by tenants under the various estates, and the economic benefits and costs of the various estates. This resulted in a much improved understanding of the:

  • Property rights enjoyed by tenants under the various estates. These include the right to:
    • Decide how a piece of real property is used;
    • Exclude others from enjoying the property;
    • Transfer (alienate) some or all of these rights to others on mutually agreeable terms;
  • Nature and consequences of transaction costs when changing and transferring estates.

For an introduction to the economic analysis of property law, see Shavell (2004), and Cooter and Ulen (2003). For a collection of related scholarly articles, see Epstein (2007). Ellickson (1993) broadens the economic analysis of real property with a variety of facts drawn from history and ethnography.

Historical background

The word "real" ultimately derives from Latin res "thing" and was used to Middle English to mean "relating to things, especially real property"[1]

In common law, real property was property that could be protected by some form of real action, in contrast to personal property, where a plaintiff would have to resort to another form of action. As a result of this formalist approach, some things the common law deems to be land would not be classified as such by most modern legal systems, for example an advowson (the right to present to the living of a church) was real property. By contrast the rights of a leaseholder originate in personal actions and so the common law originally treated a leasehold as part of personal property.

The law now broadly distinguishes between real property (land and anything affixed to it) and personal property (everything else, e.g., clothing, furniture, money). The conceptual difference was between immovable property, which would transfer title along with the land, and movable property, which a person would retain title to.

In modern legal systems derived from English common law, classification of property as real or personal may vary somewhat according to jurisdiction or, even within jurisdictions, according to purpose, as in defining whether and how the property may be taxed.

Bethell (1998) contains much historical information on the historical evolution of real property and property rights.

See also

References and further reading

  1. ^ Concise Oxford English Dictionary, Tenth Edition,1999,p 1192.
The law of real property
  • Stoebuck, W. B., and Dale A. Whitman, 2000. The Law of Property, 3rd. ed. St. Paul MN: West Group Publishing.
  • Thomas, David A., ed., 1996. Thompson on Real Property. Charlottesville VA: Michie Co.
Analysis of the law of real property
  • Ackerman, B., R. Ellickson, and C.M. Rose, 2002. Perspectives on Property Law, 3rd ed. Aspen Law and Business.
  • Tom Bethell, 1998. Noblest Triumph: Property and Prosperity through the Ages. St Martin's Press. For lay people.
  • Robert Cooter, and Thomas Ulen, 2003. Law and Economics, 4th. ed. Addison-Wesley. Chpts. 4,5. Easier text.
  • Ellickson, Robert, 1993, "Property in Land," Yale Law Review 102: 1315-1400.
  • Richard Epstein, ed., 2007, Economics of Property Law. Edward Elgar. An anthology of articles, mostly from the law literature.
  • Shavell, Steven, 2004. Foundations of Economic Analysis of Law. Harvard Univ. Press. Chpts. 2-5. Harder text; extensive references.
  • Jeremy Waldron, 1988. The Right to Private Property. Oxford Univ. Press.

External links

1911 encyclopedia

Up to date as of January 14, 2010

From LoveToKnow 1911

REAL PROPERTY. The land law of England and of countries whose law is based upon that of England stands in a peculiar position, which can be understood only by an outline of its history.

Table of contents


Such terms as "fee" or "homage" carry us back into feudal times. Rights of common and distress are based upon still older institutions, forming the very basis of primitive law. The conception of tenure is the fundamental ground of distinction between real and personal estate, the former only being strictly entitled to the name of estate (q.v.). The division into real and personal is coincident to a great extent with that into immovable and movable, generally used by systems of law founded on the Roman (see Personal Property.) That it is not entirely coincident is due to the influence of the Roman law itself. The Greeks and the Romans of the republic were essentially nations of citizens; the Teutons were essentially a nation of land-folk; the Roman empire bridged the gulf between the two. It is probable that the English land law was produced by the action of the policy adopted in the lower empire, finally developed into feudalism, upon the previously existing course of Teutonic custom. The distinguishing features of the Teutonic system were enjoyment in common and the absence of private ownership, except to a limited extent. The principal features of the old English land law before the Conquest, from which the modern law has developed, were (i) liberty of alienation, either by will or inter vivos, of such land as could be alienated, chiefly, if not entirely, bocland, subject always to the limits fixed by the boc; (2) publicity of transfer by enrolment in the shire-book or church-book; (3) equal partition of the estate of a deceased among the sons, and failing sons among the daughters; (4) cultivation to a great extent by persons in various degrees of serfdom, owing money or labour rents; (5) variety of custom, tending to become uniform, through the application of the same principles in the local courts; (6) subjection of land to the trinoda necessitas, a burden imposed for the purpose of defence of the realm. The rudiments of the conceptions of tenure and of the crown as lord paramount were found in the old English system, and leenland was an anticipation of the limited interests which afterwards became of such importance.' The connexion of political privileges with the ownership 1 The name has not remained as in Germany and Denmark. A fief is still Lehen in Germany, Lehn in Denmark.

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of land is not peculiar to the pre-Conquest or any other period. It runs through the whole of English history.

The elements of feudalism so far existed in England under the Anglo-Saxon and Danish kings as to make it easy to introduce it in full at the Norman Conquest. What the Norman Conquest did was not to change all at once allodial into feudal tenure, but to complete the association of territorial with personal dependence in a state of society already prepared for it.' "Nulle terre sans seigneur" was one of the fundamental axioms of feudalism. There might be any number of infeudations and subinfeudations to mesne lords, but the chain of seigniory was complete, depending in the last resort upon the king as lord paramount. Land was not owned by free owners owing only necessary militia duties to the state, but was held of the king by military service of a more onerous nature. The folkland became the king's land; the soldier was a landowner instead of the landowner being a soldier. Free owners tended to become tenants of the lord, the township to be lost in the manor. 2 The common land became in law the waste of the manor, its enjoyment resting upon a presumed grant by the lord. On the other hand, the whole of England did not become manorial; the conflict between the township and the manor resulted in a compromise, the result of which affects English tenure to this day. But it was a compromise much to the advantage of the privileged class, for in England more than in any other country the land law is the law of the nobility and not of the people. One reason of this is that, as England was never so completely feudalized as were some of the European continental states, the burden of feudalism was not so severely felt, and has led to less agitation for reform.

The land forfeited to the Conqueror was regranted by him to be held by military service due to the king, not to the mesne lord as in European continental feudalism. In 1086 at the council of Salisbury all the landholders swore fealty to the crown. In the full vigour of feudalism the inhabitants of England were either free or not free. The free inhabitants held their lands either by free tenure (liberum tenementum, franktenement) or by a tenure which was originally that of a non-free inhabitant, but attached to land in the possession of a free man. Franktenement was either military tenure, called also tenure in knight service or chivalry (including barony, the highest tenure known to the law, grand serjeanty and the special forms of escuage, castle-guard, cornage and others) or socage (including burgage and petit serjeanty), or frankalmoign (libera eleemosyna) or divine service, by which ecclesiastical corporations generally held their land. 3 The non-free inhabitants were in Domesday Book servi, cotarii or bordarii, later nativi or villani, the last name being applied to both free men and serfs. All these were in a more or less dependent condition. The free tenures all exist at the present day, though, as will appear later, the military tenures have shrunk into the unimportant and exceptional tenure of grand serjeanty. The non-free tenures are to a certain extent represented by copyhold. The most important difference between the military and socage tenures was the mode of descent. Whether or not a feudal benefice was originally hereditary, it had certainly become so at the time of the Conquest, and it descended to the eldest son. This applied at once in England to land held by military service as far as regarded the capital fief. The descent of socage lands or lands other than the capital fief for some time followed the old pre-Conquest rule of descent. Thus in the socalled "Laws of Henry I." the lands other than the capital fief, and in Glanvill, who wrote in the time of Henry II., socage lands, if anciently partible (antiquitus divisum), were divided among all the sons equally. But by the time of Bracton (Henry III.) the course of descent of lands held by military service had so far 1 "The relation of vassalage, originally personal, became annexed to the tenure of land" (Palgrave, Rise and Progress of the English Commonwealth, vol. i. p. 505).

2 It is a disputed point whether the manor organization existed before the Conquest; but its full development seems to have been later than that event.

Frankalmoign was not always regarded as a distinct tenure. Thus LittletonI18) says that all that is not tenure in chivalry is tenure in socage.

prevailed that, though it was a question of fact whether the land was partible or not, if there was no evidence either way descent to the eldest son was presumed. Relics of the old custom still remain in the case of gavelkind. The military tenant was seib ject to the feudal incidents, from which the tenant in socage was exempt. These incidents, especially wardship and marriage, were often oppressive. Alienation of lands by will, except in a few favoured districts, became impossible; alienation inter vivos was restrained in one direction in the interests of the heir, in another in the interests of the lord. At the time of Glanvill a tenant had a greater power of alienation over land which he had purchased (terra acquietata) than over land which he had inherited. But by the time of Bracton the heir had ceased to have any interest in either kind of land. The lords were more successful. It was enacted by Magna Carta that a free man should not give or sell so much of his land as to leave an amount insufficient to perform his services to his lord. In spite of this provision, the rights of the lords were continually diminished by subinfeudation until the passing of the Statute of Quia Emptores. Alienation by a tenant in chief of the crown without licence was a ground of forfeiture until i Edw. III. st. 2, c. 12, by which a fine was substituted. The modes of conveyance at this time were only two, feoffment with livery of seisin for corporeal hereditaments, grant for incorporeal hereditaments. Livery of seisin, though public, was not officially recorded like the old English transfer of property. The influence of local custom upon the land law must have become weakened after the circuits of the judges of the King's Court were established by Henry II. Jurisdiction over litigation touching the freehold was taken away from the lord's courts by 15 Ric. II. c. 12.

The common law as far as it dealt with real estate had in the main assumed its present aspect by the reign of Henry III. The changes which have been made since that date have been chiefly due to the action of equity and legislation, the latter sometimes interpreted by the courts in a manner very different from the intention of parliament. The most important influence of equity has been exercised in mortgage and trusts in the doctrine of specific performance of contracts concerning real estate, and in relief from forfeiture for breach of covenant.

History of Real Estate Legislation

The reign of Edward I. is notable for three leading statutes, all passed in the interests of the superior lords. The Statute of Mortmain (7 Edw. I. st. 2, c. 13) is the first of a long series directed against the acquisition of land by religious and charitable corporations. The statute De Donis Conditionalibus (13 Edw. I. c. I) forbade the alienation of estates granted to a man and the heirs of his body, which before the statute became on the birth of an heir at once alienable (except in the case of gifts in frankmarriage), and so the lord lost his escheat. The statute Quia Emptores (18 Edw. I. c. I) preserved those rights of the lords which were up to that time subject to be defeated by subinfeudation, by enacting that in any alienation of lands the alienee should hold them of the same lord of the fee as the alienor. 4 Since 1290 it has been impossible to create an estate in fee-simple to be held of a mesne lord, or to reserve a rent upon a grant of an estate in fee (unless in the form of a rent-charge), or to create a new manor. The statute, however, does not bind the crown. The practical effect of the statute was to make the transfer of land thenceforward more of a commercial and less of a feudal transaction. The writ of elegit was introduced by the Statute of Westminster II. in 1285 as a creditor's remedy over real estate. It has, however, been considerably modified by subsequent legislation. From 1290 to the reign of Henry VIII., there is no statute of the first importance dealing with real estate. The reign of Henry VIII., like the reign of Edward I., is signalized by three acts, the effects of which continue to this day. The one which has had the most lasting influence in law is the Statute of Uses, 27 Hen. Viii. C. Io (see Conveyancing; Trust). The Statute of Uses was intended to provide against secrecy of sales of land, and as a necessary sequel to it an act of the same Tenants in chief of the crown were liable to a fine on alienation until 12 Car. II. c. 24.

year (27 Hen. VIII. c. 16) enacted that all bargains and sales of land should be duly enrolled. Bargain and sale was a form of equitable transfer which had for some purposes superseded the common law feoffment. It applied only to estates of inheritance and not to terms of years. The unforeseen effect of 27 Hen. VIII.

c. 16 was to establish as the ordinary form of conveyance until 1841 the conveyance by lease and release.' Uses having become legal estate by the Statute of Uses, and therefore no longer devisable, 32 Hen. VIII. c. I (explained by 34 & 35 Hen. VIII.

c. 5) was passed to remedy this inconvenience. It is still law as to wills made before 1838 (see Will). In the reign of Elizabeth the acts of 13 Eliz. c. 5 and 27 Eliz. c. 4 avoided fraudulent conveyances as against all parties and voluntary conveyances as against subsequent purchasers for valuable consideration. Early in the reign of Charles II. the act of 1661 (12 Car. II. c. 24) turned all the feudal tenures (with the exception of frankalmoign and grand serjeanty) into tenure by free and common socage and abolished the feudal incidents. The Statute of Frauds (29 Car. II. c. 3) contained provisions that certain leases and assignments, and that all agreements and trusts relating to land, should be in writing (see Fraud). The land registries of Middlesex and Yorkshire date from the reign of Anne (see Land Registration). Devises of land for charitable purposes were forbidden by the Mortmain Act (9 Geo. II. c. 36). In the next reign the first general Inclosure Act was passed, 41 Geo. III. c. loci (see CoMMONs). In the reign of William IV. were passed the Prescription, Limitation and Tithe Commutation Acts; fines and recoveries were abolished and simpler modes of conveyance substituted by 3 & 4 Will. IV. c. 74; and the laws of inheritance and dower were amended by 3 & 4 Will. IV. cc. 105, 106. In the reign of Victoria there was a vast mass of legislation dealing with real estate in almost every conceivable aspect. At the immediate beginning of the reign stands the Wills Act. The transfer of real estate was simplified by 8 & 9 Vict. c. 106 and by the Conveyancing Acts of 1881 and 1882. Additional powers of dealing with settled estates were given by the Settled Estates Act 1856, later by the Settled Estates Act 1877, and the Settled Land Act 1882. Succession duty was levied for the first time on freeholds in 1853. The strictness of the Mortmain Act has been relaxed in favour of gifts and sales to public institutions of various kinds, such as schools, parks and museums. The period of limitation was shortened for most purposes from twenty to twelve years by the Real Property Limitation Act 187 4. Several acts were passed dealing with the enfranchisement and commutation of copyholds and the preservation of commons and open spaces. The Naturalization Act 1870 enabled aliens to hold and transfer land in England. The Felony Act 1870, abolished forfeiture of real estate on conviction for felony. The Agricultural Holdings Acts 1883 and 1900, and other acts, gave the tenant of a tenancy within the acts a general right to compensation for improvements, substituted a year's notice to quit for the six months' notice previously necessary, enlarged the tenant's right to fixtures, and limited the amount of distress. By the Intestate Estates Act 1884 the law of escheat was extended to incorporeal hereditaments and equitable estates. Among other subjects which have been dealt with by legislation in the 19th century may be mentioned land transfer, registration, mortgage, partition, excambion, fixtures, taking of land in execution, declaration of title and apportionment. Hardly a year passes in which the land law is not altered to a greater or less degree.

Real estate at the present day is either legal or equitable, a difference resting mainly upon historical grounds. The following observations apply in general to both kinds of estate. The usual classification of interests in real estate regards either the extent, the time or the mode of enjoyment. The division according to the extent is in the first instance into corporeal and incorporeal hereditaments, a division based upon the Roman law division of res into corporales and incorporales, and open to the same objection, 1 From the reign of Edward IV. at latest up to the Fines and Recoveries Act of 1833 fines and recoveries were also recognized as a means of conveyance. They are so regarded in the Statute of Uses.

that it is unscientific as co-ordinating subjects of rights with the rights themselves.' Corporeal hereditaments, says Blackstone, "consist of such as affect the senses, such as may be seen and handled by the body; incorporeal are not the objects of sensation, can neither be seen nor handled, are creatures of the mind, and exist only in contemplation." Corporeal hereditaments are all necessarily freehold; 3 an interest in land less than freehold, such as a term of years, is personalty only. There was no room for such an interest in the feudal gradation of tenure; it was regarded as a mere personal contract and was incapable of the incidents of tenure. By the Conveyancing Act 1881 the residue of a long term of years could in certain cases be enlarged into the fee-simple. A copyhold is in strict law only a tenancy at the will of the lord. Estates of freehold are either estates for life or in fee (called also estates of inheritance), the latter being in fee-tail or in fee-simple. An estate for life may be either for the life of the tenant or for the life of another person, the latter called an estate pur autre vie. The former kind of estate includes estates of dower and curtesy. An estate in fee is called a fee simply, an obvious sign of its feudal origin. Estates tail are either general or special, the latter being in tail male or (rarely) in tail female. There may also be a quasientail of an estate pur autre vie. An estate in fee-simple is the largest estate known to English law. Its ordinary incidents are an oath of fealty (never exacted), escheat, and (in a manor) suit of the court baron, and occasionally a small quit-rent and relief. All these are obviously relics of the once important feudal incidents. Incorporeal hereditaments consist chiefly, if not wholly, of rights in alieno solo. They are divided by Joshua Williams (Real Property, pt. ii.) into (I) reversions, remainders and executory interests, (2) hereditaments purely incorporeal, the last being either appendant, appurtenant or in gross. Examples are profits a prendre (such as rights of common), easements (such as rights of way),' seigniories, advowsons, rents, tithes, titles of honour, offices, franchises. Before 1845 corporeal hereditaments were said to lie in livery, incorporeal in grant. But by the Real Property Act 1845 all corporeal hereditaments are, as regards the conveyance of the immediate freehold thereof, to be deemed to lie in grant as well as in livery. With regard to the time of enjoyment, estates are either in possession or in expectancy - that is, in reversion or remainder or executory interests (see Remainder). With regard to the mode of enjoyment, estates are either joint, in common, in coparcenary or in severalty.

Exceptional Tenures

It has been already stated that there are still to be found survivals of the old pre-Conquest customary law. They are found both in the tenure and in the conveyance of land. The only customs of which judicial notice is taken are gavelkind (q.v.) and borough-English. Any other local customs, as in manors, must be proved by evidence. The tenures of frankalmoign and grand serjeanty were specially preserved by 12 Car. II. C. 24.


This is the name given to the mode of acquisition of rights over real estate. Title may arise either by alienation, voluntary or involuntary, or by succession. Voluntary alienation is either inter vivos or by will. The former branch is practically synonymous with conveyance, whether by way of sale, settlement, mortgage or otherwise. As a general rule alienation of real estate inter vivos must be by deed since 8 & 9 Vict. c. 106. Since that act a deed of grant has superseded the old forms of feoffment and lease and release. Considerable alterations in the direction of shortness and simplicity have been made in the law of transfer of real estate by the Conveyancing Acts 1881, 1882 and the Land Transfer Acts 1875 and 1897. The word "grant" is no longer necessary for a conveyance, nor are the old words of limitation "heirs" and "heirs of the body." It is sufficient to use the words "in fee-simple," "in tail," "in tail male," "in tail female." Many provisions usually inserted in deeds, such as covenants for title by a beneficial owner and powers of appointment of new trustees, obtain statutory sanction. Forms of mortgage, conveyance and settlement are appended to the act. The Solicitors' Remuneration Act 1881 was passed as a necessary sequel to the Conveyancing Act, and the remuneration of solicitors now stands upon a different and more satisfactory basis. For acquisition by will and succession, see Will; Inheritance. Involuntary alienation is by bankruptcy and by other means of enforcing the rights of creditors over land, such as distress or execution. It may also arise by the exercise by the state of its right of eminent domain for public purposes, as under the Lands Clauses and other acts.' 2 In spite of this objection the division is adopted by the legislature; see, for instance, the Intestate Estates Act 1884.

3 I the category of corporeal hereditaments are also included certain accessories to corporeal hereditaments proper, such as growing crops, fixtures, title-deeds, &c.

4 It should be noticed that an easement in gross cannot exist.

5 The right of the state to contribution from land for revenue purposes and to stamp duties on deeds perhaps falls under this head. These imposts are really involuntary alienations of part of the profit of the land.

Restraints on Alienation

The alienation of real estate may be subject to almost any conditions, provided that such conditions do not contravene the law. As a general rule there can be no restrictions upon the alienation of an estate in fee-simple; the two ideas are incompatible. In the case, however, of a married woman a restraint on anticipation is allowed within certain limits (see Restraint). In another direction the imposition of a course of devolution upon property is forbidden by the law against perpetuities (see Perpetuity), while the accumulation of income is also forbidden with a few exceptions. Certain persons are by the general policy of the law disabled from exercising full proprietary rights, such as convicts, infants and lunatics.


In some cases rights attaching to real estate are protected by peculiar remedies. At an early period it became more convenient to try the right to the possession of, rather than the right to the property in, real estate. Possessory tended to supersede proprietary remedies, from their great simplicity and elasticity. The general mode of trying the right to both property and possession was from the time of Henry II. the real action, the form called "writ of right" (after Magna Carta gradually confined to the court of common pleas) being used to determine the property, that called "assise of novel disseisin" being the general means by which the possession was tried. About the reign of Elizabeth the action of ejectment became the ordinary form of possessory remedy. Real actions existed until the Real Property Limitation Act 1833, by which they were finally abolished, with the exception of writ of right of dower, writ of dower unde nihil Isabel, quare impedit and ejectment. Of these quare impedit (q.v.) appears to be the only one now in use. The assise of novel disseisin, the action of ejectment in both its original and its reformed stage, and finally the action for the recovery of land in use since the Judicature Acts are all historically connected as gradual developments of the possessory action. There are certain matters affecting real estate over which the court of chancery formerly had exclusive jurisdiction, in most cases because the principles on which the court acted had been the creation of equity. The Judicature Act 1873 assigned to the chancery division of the high court of justice all causes and matters for (inter alia) the redemption or foreclosure of mortgages, the raising of portions or other charges on land, the sale and distribution of the proceeds of property subject to any lien or charge, the specific performance of contracts between vendors and purchasers of real estates, including contracts for leases, the partition or sale of real estates, and the wardship of infants and the care of infants' estates. In the case of rent a summary mode of remedy by act of the creditor still exists (see Distress, Rent).


The law of real estate in Ireland is the English law, which finally superseded the native law in James I.'s reign, as modified by subsequent legislation. The main difference is in the law of landlord and tenant, modified by the various land acts (see Ireland) and the operation of the Irish Land Commission.

United States

The law of real estate in the United States is the law of England modified to suit a different state of circumstances. The main point of difference is that in the United States the occupiers of land are generally wholly or in part owners, not tenants, as in England. This is to a great extent the effect of the homestead laws (see Homestead And Exemption Laws). The traces of the feudal origin of the law are, as might be expected, considerably less prominent than in England. Thus estates tail are practically obsolete; in some states they are specially forbidden by the state constitutions. The law of descent is the same in real and personal estate. Manors do not exist, except in the state of New York, where they were created by the crown in colonial days (Bouvier, Law Dict., " Manor"). Registration of deeds is general. In some states forms of deed are prescribed by statute. Conveyancing is for the most part simpler than in England. The holding of real estate by religious or charitable corporations is generally restricted by the act creating them rather than by anything like the English law of mortmain. Perpetuities are forbidden in most states. The right of eminent domain is at once acknowledged and limited by the Constitution of the United States. By art. 5 of the Amendments private property is not to be taken for public use without just compensation. A similar provision is found in many of the state constitutions. By an Act of Congress of 9th April 1866, c. 31, all citizens of the United States have the same right in every state and Territory as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold and convey real and personal property. In most states aliens may hold land; but in some states they cannot do so without becoming naturalized or at least filing in the specified manner a declaration of intention to become naturalized.

International Law. - The law of the place where real estate is situated (lex loci rei sitae) governs its tenure and transfer. The laws of England and of the United States are more strict on this point than the laws of most other countries. They require that the formalities of the locus rei sitae must be observed, even if not necessary to be observed in the place where the contract was made. The lex loci rei sitae determines what is to be considered real estate. A foreign court cannot as a general rule pass title to land situated in another country. The English and United States courts of equity have to a certain extent avoided the inconvenience which this in ability to deal with land out of the jurisdiction sometimes causes. by the use of the theory that equity acts upon the conscience of the party and not upon the title to the foreign land. Thus in the leading case of Penn. v. Lord Baltimore in 1750 (1 Vesey, 444) the court of chancery on this ground decreed specific performance of articles for settling the boundaries of the provinces of Pennsylvania and Maryland. The difficulty always arises that, although the court professes to act upon the conscience, it must indirectly act upon the property, and that it cannot carry its decision into execution without the aid of the local tribunals.

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Simple English

Real property is a type of property that includes land and buildings and infrastructure in land. It is one of two types of property that one can own, and the other is personal property.


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