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History Of Leases Notes

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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 15th 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 13th c. This may have been the reason why covenant was introduced in the first place, although it was used in other contexts in the 13th 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 14th 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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