Escheat is a common law doctrine that transfers the real property of a person who died without heirs to the Crown or state. It serves to ensure, it applied to a number of situations where a legal interest in land was destroyed by operation of law, so that the ownership of the land reverted to the superior feudal lord. The term "escheat" derives from the Latin ex-cadere, to "fall-out", via mediaeval French escheoir; the sense is of a feudal estate in land falling-out of the possession by a family into possession by the overlord. In feudal England, escheat referred to the situation where the tenant of a fee died without an heir or committed a felony. In the case of such demise of a tenant-in-chief, the fee reverted to the King's demesne permanently, when it became once again a mere tenantless plot of land, but could be re-created as a fee by enfeoffment to another of the king's followers. Where the deceased had been subinfeudated by a tenant-in-chief, the fee reverted temporarily to the crown for one year and one day by right of primer seisin after which it escheated to the over-lord who had granted it to the deceased by enfeoffment.
From the time of Henry III, the monarchy took particular interest in escheat as a source of revenue. At the Norman Conquest of England all the land of England was claimed as the personal possession of William the Conqueror under allodial title; the monarch thus became the sole "owner" of all the land in the kingdom, a position which persists to the present day. He granted it out to his favoured followers, who thereby became tenants-in-chief, under various contracts of feudal land tenure; such tenures the highest one of "feudal barony", never conferred ownership of land but ownership of rights over it, to say ownership of an estate in land. Such persons are therefore termed "land-holders" or "tenants", not owners. If held, to say by freehold, such holdings were heritable by the holder's legal heir. On the payment of a premium termed feudal relief to the treasury, such heir was entitled to demand re-enfeoffment by the king with the fee concerned. Where no legal heir existed, the logic of the situation was that the fief had ceased to exist as a legal entity, since being tenantless no one was living, enfeoffed with the land, the land was thus technically owned by either the crown or the immediate overlord as ultimus heres.
Logically therefore it was in the occupation of the crown alone, to say in the royal demesne. This was the basic operation of a failure of heirs. Escheat could take place if a tenant was outlawed or convicted of a felony, when the King could exercise the ancient right of wasting the criminal's land for a year and a day, after that the land would return to the lord. Since disavowal of a feudal bond was considered a felony, lords could escheat land from those who refused to be true to their feudal services. On the other hand, there were tenants who were sluggish in performing their duties, while not being outright rebellious against the lord. Remedies in the courts against this sort of thing in Bracton's day, were available, but were considered laborious and ineffectual in compelling the desired performance; the commonest mechanism would be distraint called distress: the lord would seize some chattel, hold it until performance was achieved. This practice had been dealt with in the 1267 Statute of Marlborough.
So, it remained the most common extrajudicial method applied by the lords at the time of Quia Emptores. Thus, under English common law, there were two main ways an escheat could happen: A person's property escheated if he was convicted of a felony. If the person was executed for the crime, his heirs were attainted, i.e. ineligible to inherit. In most common-law jurisdictions, this type of escheat has been abolished outright, for example in the United States under Article 3 § 3 of the United States Constitution, which states that attainders for treason do not give rise to posthumous forfeiture, or "corruption of blood". If a person had no heir to receive their property under a will or under the laws of intestacy any property he owned at death would escheat; this rule has been replaced in most common-law jurisdictions by a similar concept. From the 12th century onward, the Crown appointed escheators to manage escheats and report to the Exchequer, with one escheator per county established by the middle of the 14th century.
Upon the death of a tenant-in-chief, the escheator would be instructed by a writ of diem clausit extremum issued by the king's chancery, to empanel a jury to hold an "inquisition post mortem" to ascertain who the legal heir was, if any, what was the extent of the land held. Thus it would be revealed, it was important for the king to know who the heir was, to assess his personal qualities, since he would thenceforth form a constituent part of the royal army, if he held under military tenure. If there was any doubt, the escheator would sei
Real estate is "property consisting of land and the buildings on it, along with its natural resources such as crops, minerals or water. Also: the business of real estate, it is a legal term used in jurisdictions whose legal system is derived from English common law, such as India, Wales, Northern Ireland, United States, Pakistan and New Zealand. Residential real estate may contain either a single family or multifamily structure, available for occupation or for non-business purposes. Residences can be classified by. Different types of housing tenure can be used for the same physical type. For example, connected residences might be owned by a single entity and leased out, or owned separately with an agreement covering the relationship between units and common areas and concerns. Major categoriesAttached / multi-unit dwellings Apartment or Flat – An individual unit in a multi-unit building; the boundaries of the apartment are defined by a perimeter of locked or lockable doors. Seen in multi-story apartment buildings.
Multi-family house – Often seen in multi-story detached buildings, where each floor is a separate apartment or unit. Terraced house – A number of single or multi-unit buildings in a continuous row with shared walls and no intervening space. Condominium – A building or complex, similar to apartments, owned by individuals. Common grounds and common areas within the complex are shared jointly. In North America, there are rowhouse style condominiums as well; the British equivalent is a block of flats. Cooperative – A type of multiple ownership in which the residents of a multi-unit housing complex own shares in the cooperative corporation that owns the property, giving each resident the right to occupy a specific apartment or unit. Semi-detached dwellings Duplex – Two units with one shared wall. Detached dwellings Detached house or single-family detached house Portable dwellings Mobile homes or residential caravans – A full-time residence that can be movable on wheels. Houseboats – A floating home Tents – Usually temporary, with roof and walls consisting only of fabric-like material.
The size of an apartment or house can be described in square meters. In the United States, this includes the area of "living space", excluding the garage and other non-living spaces; the "square meters" figure of a house in Europe may report the total area of the walls enclosing the home, thus including any attached garage and non-living spaces, which makes it important to inquire what kind of surface area definition has been used. It can be described more by the number of rooms. A studio apartment has a single bedroom with no living room. A one-bedroom apartment has a dining room separate from the bedroom. Two bedroom, three bedroom, larger units are common. Other categoriesChawls Villas HavelisThe size of these is measured in Gaz, Marla and acre. See List of house types for a complete listing of housing types and layouts, real estate trends for shifts in the market, house or home for more general information, it is common practice for an intermediary to provide real estate owners with dedicated sales and marketing support in exchange for commission.
In North America, this intermediary is referred to as a real estate broker, or a real estate agent in everyday conversation, whilst in the United Kingdom, the intermediary would be referred to as an estate agent. In Australia the intermediary is referred to as a real estate agent or real estate representative or the agent
Lost, mislaid, and abandoned property
Lost and abandoned property are categories of the common law of property which deals with personal property or chattel which has left the possession of its rightful owner without having directly entered the possession of another person. Property can be considered lost, mislaid or abandoned depending on the circumstances under which it is found by the next party who obtains its possession. There is an old saying that possession is nine-tenths of the law dating back centuries; this means that in most cases, the possessor of a piece of property is its rightful owner without evidence to the contrary. More colloquially, this may be called keepers; the contradiction to this principle is theft by finding, which may occur if conversion occurs after finding someone else's property. The rights of a finder of such property are determined in part by the status; because these classifications have developed under the common law of England, they turn on nuanced distinctions. The general rule attaching to the three types of property may be summarized as: A finder of property acquires no rights in mislaid property, is entitled to possession of lost property against everyone except the true owner, is entitled to keep abandoned property.
This rule varies by jurisdiction. Property is deemed to have been lost if it is found in a place where the true owner did not intend to set it down, where it is not to be found by the true owner. At common law, the finder of a lost item could claim the right to possess the item against any person except the true owner or any previous possessors; the underlying policy goals to these distinctions are to see that the property is returned to its true original owner, or "title owner." Most jurisdictions have now enacted statutes requiring that the finder of lost property turn it in to the proper authorities. In Britain, many public businesses have a dedicated Lost Property Office, which in the United States would be called a lost and found, where lost property can be reported and reclaimed free of charge. Many exceptions may be applied at common law to the rule that the first finder of lost property has a superior claim of right over any other person except the previous owner. For example, a trespasser's claim to lost property which he finds while trespassing is inferior to the claim of the respective landowner.
As a corollary to this exception, a landowner has superior claim over a find made within the non-public areas of his property, so if a customer finds lost property in the public area of a store, the customer has superior claim to the lost property over that of the store-owner, but if the customer finds the lost property in the non-public area of that store, such as an area marked "Employees Only," the store-owner will have superior claim, as the customer was trespassing when he found it. The status of finders as employees or tenants of the landowner complicates matters, because employees and tenants have legitimate access to non-public areas of a landowner's property that others would not, without trespassing. Employees and tenants, still lose superior claim over lost property to their employers or landlords if the property is found within the scope of their employment, or outside the actual leased area, respectively. For example, if the lost property is found by a tenant inside the walls of his leasehold, or by an employee embedded within the soil of an estate owned by his employer, the landowner of the property where it was found has a superior claim of right over that of the finder.
However, this is not always the case, as a long-term tenant who finds lost property within the leased area of his leasehold may have a superior claim over that of his landlord. While employers have a superior claim over lost property found by their employees, exceptions to this exist as well, as modern law sometimes grants the employee superior claim if turning over lost property to his employer is not part of his job description. Since animals are mobile and are thus capable of becoming lost on their own, the loss of property, a valuable animal has its own set of rules. A valuable animal that becomes lost does so by leaving its owner's real property and arriving on another property owner's land. Estrays are confined to domesticated animals, like livestock, not wild animals. Since common pets are not considered valuable animals and cats are never considered estrays. In many jurisdictions of the U. S. a person who discovers an estray will be required to file an affidavit of estray, along with its description, impound that animal in some way for a period of time.
If the estray is branded, the owner can be identified immediately. The owner of the estray will have a limited time frame in which to reclaim his property after a Notice of Estray is published, but on the expiration of such time another person or entity will be designated the new title owner of the property. Fees for impounding the estray will accumulate which the property owner will be responsible for paying; the status of a stray domestic animal is dependent on local jurisdictions. See Feral cat, Free-ranging dog. Given the significant number of feral dogs and cats, the finder of a lost dog or cat may have little or no restrictions to claiming the animal as his own property. Like animals, fugitive slave
In law, common law is that body of law derived from judicial decisions of courts and similar tribunals. The defining characteristic of "common law" is. In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts, synthesizes the principles of those past cases as applicable to the current facts. If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the prior decision. If, the court finds that the current dispute is fundamentally distinct from all previous cases, legislative statutes are either silent or ambiguous on the question, judges have the authority and duty to resolve the issue; the court states an opinion that gives reasons for the decision, those reasons agglomerate with past decisions as precedent to bind future judges and litigants. Common law, as the body of law made by judges, stands in contrast to and on equal footing with statutes which are adopted through the legislative process, regulations which are promulgated by the executive branch.
Stare decisis, the principle that cases should be decided according to consistent principled rules so that similar facts will yield similar results, lies at the heart of all common law systems. The common law—so named because it was "common" to all the king's courts across England—originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066; the British Empire spread the English legal system to its historical colonies, many of which retain the common law system today. These "common law systems" are legal systems that give great precedential weight to common law, to the style of reasoning inherited from the English legal system. Today, one-third of the world's population lives in common law jurisdictions or in systems mixed with civil law, including Antigua and Barbuda, Bahamas, Barbados, Botswana, Cameroon, Cyprus, Fiji, Grenada, Hong Kong, Ireland, Jamaica, Liberia, Malta, Marshall Islands, Namibia, New Zealand, Pakistan, Papua New Guinea, Sierra Leone, South Africa, Sri Lanka and Tobago, the United Kingdom, the United States, Zimbabwe.
Some of these countries have variants on common law systems. The term common law has many connotations; the first three set out here are the most-common usages within the legal community. Other connotations from past centuries are sometimes seen and are sometimes heard in everyday speech; the first definition of "common law" given in Black's Law Dictionary, 10th edition, 2014, is "The body of law derived from judicial decisions, rather than from statutes or constitutions. This usage is given as the first definition in modern legal dictionaries, is characterized as the “most common” usage among legal professionals, is the usage seen in decisions of courts. In this connotation, "common law" distinguishes the authority. For example, the law in most Anglo-American jurisdictions includes "statutory law" enacted by a legislature, "regulatory law" or “delegated legislation” promulgated by executive branch agencies pursuant to delegation of rule-making authority from the legislature, common law or "case law", i.e. decisions issued by courts.
This first connotation can be further differentiated into pure common law arising from the traditional and inherent authority of courts to define what the law is in the absence of an underlying statute or regulation. Examples include most criminal law and procedural law before the 20th century, today, most contract law and the law of torts. Interstitial common law court decisions that analyze and determine the fine boundaries and distinctions in law promulgated by other bodies; this body of common law, sometimes called "interstitial common law", includes judicial interpretation of the Constitution, of legislative statutes, of agency regulations, the application of law to specific facts. Publication of decisions, indexing, is essential to the development of common law, thus governments and private publishers publish law reports. While all decisions in common law jurisdictions are precedent, some become "leading cases" or "landmark decisions" that are cited often. Black's Law Dictionary 10th Ed. definition 2, differentiates "common law" jurisdictions and legal systems from "civil law" or "code" jurisdictions.
Common law systems place great weight on court decisions, which are considered "law" with the same force of law as statutes—for nearly a millennium, common law courts have had the authority to make law where no legislative statute exists, statutes mean what courts interpret them to mean. By contrast, in civil law jurisdictions, courts lack authority to act. Civil law judges tend to give less weight to judicial precedent, which means that a
Deeds registration is a land management system whereby all important instruments which relate to the common law title to parcels of land are registered on a government-maintained register. Deeds registration systems were set up to facilitate the transfer of title; the system had been used in some common law jurisdictions and continues to be used in some jurisdictions, including most of the United States. It is being replaced by Torrens systems in many jurisdictions. Australia, Ireland as well as most Canadian provinces have converted from deeds registries to Torrens titles; some Canadian provinces have always used Torrens titles. Other Canadian provinces which have converted from a deeds registry to Torrens titles have operated both systems in conjunction until the Torrens system superseded the deeds registry system, as was the case in Nova Scotia and New Brunswick during the 2000s. In the Canadian province of Ontario, electronic registration led to Ontario's version of Torrens title covering all land, but the past deeds registration still governs some issues.
Hong Kong and the Canadian provinces of Quebec and Labrador and Prince Edward Island are the only provinces left which still operate a deeds registration system. In contrast to the Torrens system in which the one who registered in a land registry as owner of a piece or parcel of land has an indefeasible title of the land, deeds registration system is a registration of all important instruments related to that land. In order to establish one's title to the land, a person will ascertain, for example: all the title documents have been properly executed, "a chain of title" is established, i.e. the proper ownerships from the granting of the land from the government to the current owner, there are no encumbrances on the land that will harm the title of the land. Since, in contrast to the Torrens system, the registry is a record of all instruments related to the land, the "owner" as shown on the land registry record does not mean that he has a "good title", which means a title, not defeasible or defeasible.
In a sale and purchase of land, a vendor is required to show a "good title" to the purchaser. Since the land search record is not conclusive, it leads to problems when a vendor has to prove his title, in particular when the land is old or involves multiple encumbrances; this may lead to litigation. In Hong Kong, the vendor is only required to prove his title up to 15 years prior to the date of the sale and purchase. Further, various legislative measures relieve the vendor's duty. For example, the vendor can rely on assumption that a recital of an instrument referring to matters prior to 15-year-old is true. In Ireland a vendor has to produce "a good root of title". A purchaser cannot insist that the root of title be more than 40 years old and the practice is to only insist on a minimal 20-year period because there is a presumption that the recitals in a conveyance for valuable consideration are true if that conveyance is at least 20 years old. Many jurisdictions have switched or are switching from a deeds registration system to a system of title registration.
For example, Hong Kong, one of the last common law jurisdictions to maintain a deed registration system, passed the Land Titles Ordinance in 2004, which will see Hong Kong shift to the Torrens system. The law will be implemented over a period of twelve years. However, there is no timetable for the commencement of the Ordinance as at 2016. Land registration Recording Recorder of deeds
An easement is a nonpossessory right to use and/or enter onto the real property of another without possessing it. It is "best typified in the right of way which one landowner, A, may enjoy over the land of another, B", it is similar to equitable servitudes. Easements are helpful for providing pathways across two or more pieces of property, allowing individuals to access other properties or a resource, for example to fish in a owned pond or to have access to a public beach. An easement is considered as a property right in itself at common law and is still treated as a type of property in most jurisdictions; the rights of an easement holder vary among jurisdictions. The common law courts would enforce only four types of easement: Right-of-way Easements of support Easements of "light and air" Rights pertaining to artificial waterwaysModern courts recognize more varieties of easements, but these original categories still form the foundation of easement law. An affirmative easement is the right to use another property for a specific purpose, a negative easement is the right to prevent another from performing an otherwise lawful activity on their own property.
For example, an affirmative easement might allow land owner A to drive their cattle over the land of B. A has an affirmative easement from B. Conversely, a negative easement might restrict A from putting up a wall of trees that would block B's mountain view, A has a negative easement from B; as defined by Evershed MR in Re Ellenborough Park Ch 131, an easement requires the existence of at least two parties. The party gaining the benefit of the easement is the dominant estate, while the party granting the benefit or suffering the burden is the servient estate. For example, the owner of parcel A holds an easement to use a driveway on parcel B to gain access to A's house. Here, parcel A is the dominant estate, receiving the benefit, parcel B is the servient estate, granting the benefit or suffering the burden. A private easement is held by private entities. A public easement grants an easement for a public use, for example, to allow the public an access over a parcel owned by an individual. In the US, an easement appurtenant is one that benefits the dominant estate and "runs with the land" and so transfers automatically when the dominant estate is transferred.
An appurtenant easement allows property owners to access land, only accessible through a neighbor's land. Conversely, an easement in gross benefits an individual or a legal entity, rather than a dominant estate; the easement can be for a commercial use. An easement in gross was neither assignable nor inheritable, but commercial easements are now transferable to a third party, they are divisible but must be exclusive and all holders of the easement must agree to divide. If subdivided, each subdivided parcel enjoys the easement. A floating easement exists when there is no fixed location, method, or limit to the right of way. For example, a right of way may cross a field, without any visible path, or allow egress through another building for fire safety purposes. A floating easement may be appurtenant or in gross. One case defined it as " easement defined in general terms, without a definite location or description, is called a floating or roving easement...." Furthermore, "a floating easement becomes fixed after construction and cannot thereafter be changed."
Some legal scholars classify structural encroachments as a type of easement. In British energy law and real property law, a wayleave is a type of easement used by a utility that allows a linesman to enter the premises, "to install and retain their cabling or piping across private land in return for annual payments to the landowner." Like a license or profit-à-prendre, " Wayleave is a temporary arrangement and does not automatically transfer to a new owner or occupier." More a wayleave agreement can be used for any service provider. In the United States, an easement in gross is used for such needs for permanent rights. An access easement provides access from a public right of way to a parcel of land. For example, if Zach and James own neighboring parcels of land, Zach's parcel may have easement rights to cross James's parcel from a public right of way. In such a case, Zach's "dominant" parcel would contain an access easement to cross James's "servient" parcel. Easements are most created by express language in binding documents.
Parties grant an easement to another, or reserve an easement for themselves. Under most circumstances having a conversation with another party is not sufficient. Courts have recognized creation of easements in other ways. An easement may express. An express easement may be "granted" or "reserved" in a other legal instrument. Alternatively, it may be incorporated by reference to a subdivision plan by "dedication", or in a restrictive covenant in the agreement of an owners association; the doctrines of contract law are central to disputes regarding express easements while disputes regarding implied easements apply the principles of property law. Implied easements are more complex and are determined by the courts based on the use of a property and the intention of the original parties, who can be private or public/government entities. I
Torrens title is a land registration and land transfer system, in which a state creates and maintains a register of land holdings, which serves as the conclusive evidence of title of the person recorded on the register as the proprietor, of all other interests recorded on the register. The interests that are not guaranteed are called "paramount interests". Ownership of land is transferred by registration of a transfer of title, instead of by the use of deeds; the Registrar would provide a Certificate of Title to the new proprietor, a copy of the related folio of the register. The main benefit of the system is to enhance certainty of title to land and to simplify dealings involving land; the system has been adopted by many countries those in the Commonwealth of Nations, has been extended to cover other interests, including credit interests and strata titles. The design and introduction in 1858 of the Torrens system in South Australia is attributed to Sir Robert Richard Torrens, Premier of the colony, though some attribute the design to another.
The Torrens title system operates on the principle of "title by registration" rather than "registration of title". The system does away with the need for proving a chain of title; the State guarantees title and is supported by a compensation scheme for those who lose their title due to private fraud or error in the State's operation. In most jurisdictions, there will be parcels of land; the Torrens system works on three principles: Mirror principle – the register reflects and the current facts about title to each registered lot. This means that each dealing affecting a lot must be entered on the register and so be viewable by anyone. Curtain principle – one does not need to go behind the Certificate of Title as it contains all the information about the title; this means that ownership need not be proved by long complicated documents that are kept by the owner, as in the Private Conveyancing system. All of the necessary information regarding ownership is on the Certificate of Title. Indemnity principle – provides for compensation of loss caused by private fraud or by errors made by the Registrar of Titles.
At common law, the vendor of land needs to show his or her ownership of the land by tracing the chain of ownership back to the earliest grant of land by the Crown to its first owner. The documents relating to transactions with the land are collectively known as the "title deeds" or the "chain of title"; this event may have occurred hundreds of years prior and could have had dozens of intervened changes in the land's ownership. A person's ownership over land could be challenged causing great legal expense to land owners and hindering development. An exhaustive title search of the chain of title would not give the purchaser complete security because of the principle, nemo dat quod non habet and the ever-present possibility of undetected outstanding interests. For example, in the UK Court of Chancery case Pilcher v Rawlins, the vendor conveyed the fee-simple estate to P1, but retained the title deeds and fraudulently purported to convey the fee-simple estate to P2; the latter could receive only the title retained by the vendor -- in nothing.
However, the case was decided in favor of P2, over P1. The courts of equity could not bring themselves to decide against a innocent purchaser; the common-law position has been changed in minor respects by legislation designed to minimize the searches that should be undertaken by a prospective purchaser. In some jurisdictions, a limitation has been placed on the period of commencement of title a purchaser may require; the effect of registration under the deeds registration system was to give the instrument registered "priority" over all instruments that are either unregistered or not registered until later. The basic difference between the deeds registration and Torrens systems is that the former involves registration of instruments while the latter involves registration of title. Moreover, though a register of who owned what land was maintained, it was unreliable and could be challenged in the courts at any time; the limits of the deeds-registration system meant that transfers of land were slow and unable to create certain title.
A boom in land speculation and a haphazard grant system resulted in the loss of over 75% of the 40,000 land grants issued in the colony of South Australia in the early 1800s. To resolve the deficiencies of the common law and deeds registration system, Robert Torrens, a member of the colony's House of Assembly, proposed a new title system in 1858, it was adopted; the Torrens title system was based on a central registry of all the land in the jurisdiction of South Australia, embodied in the Real Property Act 1886. All transfers of land are recorded in the register. Most ownership of the land is established by virtue of the owner's name being recorded in the government's register; the Torrens title records easements and the creation and discharge of mortgages. The historical origins of the Torrens title are a matter of considerable controversy. Torrens himself acknowledged adapting his proposals from earlier systems of transfer and registration the system of registration of merchant ships in the United Kingdom.
The Prussian mortgage legislation served as an example. James E. H