This chapter of the Casebook concerns the acquisition and loss of ownership. In the acquisition of ownership, just as with possession, one must distinguish between original and derivative ownership. The first part of the chapter concerns the transfer of derivative ownership of land. (Since acquisition of original ownership in land is accomplished in the same way as acquisition of original possession of the same, the rule of discovery as discussed in connection with Chapter I of the Casebook need not be repeated here.)
Both the common and civil law systems of property distinguish between movable or “personal” property (chattel) and immovable or “real” property (land, including fixtures attached to land). With regard to movable property, the rules and concepts of both systems are quite similar to each other, not least because of the influence of continental jurisprudence on the common law tradition. Yet with regard to property interests in land, the conceptual differences between the two systems are substantial. In the civil law tradition, despite the somewhat different rules that apply to immovables and movables, respectively, the concept of ownership itself is essentially the same regardless of which type of property is involved. At common law, however, the legacy of feudalism has left a distinctive stamp on the law of landed property.
Properly speaking, at common law only the sovereign holds ultimate title to land. What the private landowner holds is not the land qua land but a possessory “estate” in land. The fullest form of possessory estate in land recognized by the common law is the “fee simple” or “freehold,” which is essentially a set of “indefeasible” rights with regard to a parcel of land. Subject to statutory and common law land-use controls, the fee simple includes the right to possess and use the property in whatever manner the fee owner wishes, to exclude others from it, to pass it through succession, to alienate it, and even to waste it. The other possessory estates that are still in regular use at common law—are the life estate and leasehold estates. Each consists of its own set of rights that, in all cases, include the right of exclusive use and enjoyment but otherwise are less extensive than the rights associated with the fee simple. For example, a life estate is limited in duration to the life of the person in whom it was created and is linked to a concurrent “future interest” that will pass the estate to a “remainderman” or merge it into another estate by “reversion” upon the death of that person. The life tenant will also be liable for “waste” of the property. Leasehold estates are generally subject to still further constraints on permissible use, and they exist only for a term of years, or are renewable, or at will, extinguished upon the death of the lessee, and are subject to forfeiture. In recognition of their less permanent nature, leasehold estates are sometimes called “chattels real.” Under both statute and the common law of landlord and tenant, the lessee of a leasehold estate generally is the beneficiary of certain warranties imposed on the lessor. Those warranties subsist in the leasehold estate itself, rather than arising from the lease contract alone. An example is the “covenant of quiet enjoyment,” which guarantees legal, quiet, and peaceful possession to the lessee, whether included as an express term of the rental agreement or not.
None of the concepts and terms of the common law estate system has any place in the civil law system of property, yet essentially all the rights and duties associated with the estate system exist in different forms within the civil law tradition.1 To take just one analogy, tenants in Roman law are not “possessors” of the property they occupy. Likewise at common law, even though lessees have a “possessory estate,” they cannot be “adverse possessors” against their lessors (the person or party from whom they hold). Table 1 summarizes some important common law terms relating to the estate system and the functional equivalents of those terms in the language of the civil law tradition.
|Freeholder, fee holder (loosely called “owner” of land)||Owner of land|
|Holder of a life estate||Usufructuary for life|
|Lessee (holder of a leasehold)||Tenant with rights based on a rental contract|
|Future interest of remainderman||“Naked ownership”|
|Reversion, reversionary interest||No equivalent as present ownership interest, but contingent reversions can be established by contract|
|Mining lease, mineral deed||Servitude of use|
|Fruits, profits a prendre, produce||usufruct, Fruits|
Further reading on the origin and development of common law estates in real property:
Baker, J. H. An Introduction to English Legal History, 4th ed. Oxford: Oxford University Press, 2007, 23–247, 298–315.
A third type of property, generically called “intellectual property,” is also the subject of special rules in both the common and civil law systems, but the concept of legal rights in intellectual property essentially did not exist in pre-modern times. Roman law does, however, recognize incorporeal property, such as debts, security interests, and what the common law calls a “chose in action”—i.e., a property interest based on a right to sue.
1 “Freehold and seisin, fee and the right, entry and warranty all lost their seignorial connotations; and today we use ‘tenure’ itself in a non-tenurial sense. Profound changes can lie hidden behind the changing content of legal words; and in the case of seisin and the right, concealment was perfected by the Roman analogies of possession and property.” Milsom, S.F.C. Historical Foundations of the Common Law, 2nd ed. London: Butterworths, 1981, 150.