#1669 - History Of Leases - History of English Law

Leases

Original use: In early cases leases were used as security for mortgages/money lending. If you did not pay money back on the due day, that lease could transform into a fee simple for the lender. Later on a lease was granted at a nominal rent and the lender would recoup money out of the land throughout the period of loan. That use declined.

Fee farm…By the 15^th c. the typical lessee was a farmer who hired land to use it rather than buying it. That use of leases replicates a mechanism known as fee farm, which was a subinfeudation for a rent freehold.

What is the position of the lessee/tenant?

• He does not do homage to the lessor.

• He does not have seisin, just possession.

• He cannot use any of the real actions; illustration - if the lessee is ejected from the land by a stranger that is a disseisin of the lessor so the lessor can bring novel disseisin against the stranger. The Lessee cannot.

Remedies: What remedies did the lessee have if he is turned out by lessor/third party before the end of the lease?

1. Lessee had covenant against lessor if lessor turns him out prematurely. Major use in the 13^th c. This may have been the reason why covenant was introduced in the first place, although it was used in other contexts in the 13^th c. Might be covenant against stranger – depends on the terms of the lease. Royal judges would give sp. performance in recovery for the rent of the term.

2. Quare ejecit - From about 1235 they had the writ quare ejecit infra terminum [not England name – wherefore he ejected within the term] which had a specific use.

Situation: Lessor (who has fee simple) conveys the fee simple to a purchaser, who then turns out the tenant before the end of the lease, against grantees of the reversion. After the 1230s the lessee had this action against the purchaser of the fee simple from the lessor. That gave specific performance for the rest of the term if he wins the action.

NB. Trespass in form but no vi et armis. If lessee if kicked out there was still the possibility of covenant against the first landlord. Choice of alternatives.

3. Ejectio firmae - In 14^th c. there was a further writ. Difficult to date – had emerged by the 1360s; probably can trace early origins, there is case in 1312 where a precursor of the ejectio firmae was used. Available against any intruder (i.e. strangers) but seems to have given only damages, and not specific recovery of the term. Call writ ‘ejectio firmae’ when used by leaseholders, and ‘ejectment’ when used by freeholders.

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Ejectio firmae (used by leaseholders against any intruder, giving only damages)

Required vi et armis, unlike remedy 2. Gave only damages to begin with.

Why did it give only damages?

• Rationalised on the basis that ejectio firmae is very strongly trespassory – trespass actions obtain compensation for past wrongs, but they are not for demanding rights for the future, so not sp. recovery.

• + Plucknett: But there is a case in the 1380s which Plucknett discovered where ejectio firmae did give sp. recovery. Could be an aberration, or sp performance may have been available earlier than we think.

• Puzzle: If ejectio firmae only gives damages then why not use trespass? If it replicates an ordinary trespass writ then what is the point? Answer would be easy if it gave sp. recovery. So still stick to basic line that it does not, although there are doubts.

Changes:

• By 1480s the limitation of ejectio firmae to damages was breaking down, at least in actions against lessor.

• In 1499 it was decided by KB in Gernes v. Smyth that the term could be recovered in ejectio firmae against a stranger, a decision confirmed in the Common Pleas in 1525 in Soole v. Edgare = Lessee has an action to recover land specifically against everyone for the rest of the term. So in effect he has a real action, although strictly speaking it is not.

Why did the shift occur around 1500? In 1499 Chief Justice Fyneux said assumpsit for nonfeasance was available without a disablement; this was a breakdown between trespass remedying the past. Assumpsit being used for nonfeasance is a trespassory action which began to look forward. Maybe the same thing happened with ejectment. Maybe a blurring between praecipe and trespassory writs.

The lessee faced two further difficulties:

(1) Wardship of the lessee’s infant heir by the lessor’s lord would interrupt the lease. L T1 T2: What happens if T1 dies with an infant heir. Medieval answer is that lease is interrupted for the period of the wardship. Danger for lessees that there could be a wardship of the infant heir of their lessor. After some vacillation this rule was reversed in the 1540s. Common Pleas delayed longer because accepting change – by 1540s in both courts, despite a wardship, the lessee remains on the land and pays rent to the L.

(2) The suffering of a common recovery of the reversion without the lessee’s knowledge. Common recovery – mechanism of conveyance operating by court judgment. If there is a court judgment transferring land from L to P, quierepp (latin thing) does not work. The statute 21 Hen. VIII, c. 15 (1529) provided a remedy here – could recover the land against the purchaser for the remainder of the term.

= By mid 16^th c. the position of the lessee is radically different from how it had been in 1250. It was a question of obligation in 1250 (remedy is covenant) but by mid 16^th c. the lessee has an action against everyone specifically to recover land for the remainder of the term. Lessee now in a position recognisable to modern lawyers – he has a property interest and not just the benefit of an obligation. So leases become chattels real – they are not real actions, but are not simply personal. Amphibious.

= In terms of remedies the lessee is in as good a position as the freeholder.

Lease behaves diff from freehold land:

• If I die seised of freehold land it descends to my heir; but lease goes to my executors along with my money and chattels and can be determined by wills, so lease behaves more like a chattel.

• + Bruton: Can have a lease with no estate (nonsense) – if that is right then that is how things were in the 13^th and is simply something that has been recovered by the H of L.

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Ejectment – A remedy for freeholders. Same as ejectio firmae.

• Back to concept of a right of entry – if I physically enter the land I become seised. So I can enter and use novel disseisin to get you out.

• Second half of 16^th c. – Can involve an accomplice and recreate a lease to use ejectment. Mechanism is:

Mechanism: A freeholder (C) might use the newly improved ejectio firmae to test his right of entry, as he had once used novel disseisin. If he had a good right of entry he would become seised upon entering the land. He could then grant a lease to an accomplice, and leave him to be turned out by the D, who is occupying the land. The accomplice would then bring ejectio firmae (ejectment) so the action is between A and D. Success in which action would demonstrate the validity of C’s right of entry, and would be accompanied by an order that the plaintiff recover his term, enforced if necessary by judicial writ.

By 1565 ejectment had become the standard action for freeholders, though still new in 1570s. Dyre CJ objected to it in the earlier 1570s as he said it was not grounded in law. Early example is provided by Gerrarde v. Worseley (1580); mechanism is used.

What was the point? Pantomime - Unclear to some extent. Advantages:

• Obvious advantage over the previous action for damages for trespass, because that only gave damages, but ejectment gives a judgment to recover possession.

• Advantage over novel disseisin (real action) is that it is less procedurally burdensome.

• But people seemed satisfied with ordinary action for trespass in the early 16^th c . so why dissatisfied later? Because in 15^th c. you could not get an action to recover possession, but from 1499 it is established that you could recover possession in ejectio firmae, and this does not become popular until 1680s. Maybe connected to dissolution of the monarchy and the land changes accompanying that –but that is speculation.

Early 17^th c: Pantomime made easier - are signs of judicial willingness not to insist strictly upon the entry and ouster. Judges willing to be flexible:

• Merrell v. Smith (1613); Date upon which the accomplice was ousted was held immaterial to the action.

• Wilson v. Woddel (1609); Ejection of A by servant a servant of D was permitted and sufficient.

By mid-17^th c, at least in the KB (1648-55), ejectment had become fully fictional.

Fiction: In old cases C actually entered land actually with real accomplice and grants lease. In fictional form he simply says he entered land with an accomplice who does not exist (John Doe). John Doe alleged to have been ejected by another fictional person. Marvellous action for the real C as he has an action between two made up people who are his puppets. Makes Roe (D) appear to answer action. Real D loses land if not informed. So real C is required by rules of ct to write to the real D in the name of Roe alerting him, advising the real D that the action is on foot and that he will lose. Advises real D to take over defence. Real D appears in ct – ct allows him to do it so long as he does not challenge fiction – only contested issue is title to the land. Must agree to plead...