Real Estate Law Terms

Real Estate Law Terms in the United States

Estate and Estate Law Definition in the Past

Important Note: this is an extension/continuation on the entry on Estate in the American legal dictionary of this Project. This estate though, strictly speaking, not more than an estate for life, partakes in some circumstances of the nature of an estate tail. For a tenant (see more about this popular legal topic in the U.S. encyclopedia) in tail after possibility of issue extinct, has eight qualities or privileges in common with a tenant (see more about this popular legal topic in the U.S. encyclopedia) in tail. 1. He is dis-punishable for waste. 2. He is not compellable to attorn. 3. He must not have aid of the person in reversion. 4. Upon his alienation no writ of entry in consimili casu lies. 5. After his death, no writ of intrusion lies. 6. He may join the mise in a writ of right in a special way. 7. In a praecipe brought by him he must not name himself tenant (see more about this popular legal topic in the U.S. encyclopedia) for life. 8. In a praecipe brought against him, he must not be named barely tenant (see more about this popular legal topic in the U.S. encyclopedia) for life.

Qualities

There are, however, four qualities annexed to this estate, which prove it to be, in fact, only an estate for life. 1. If this tenant (see more about this popular legal topic in the U.S. encyclopedia) makes a feoffment in fee, it is a forfeiture. 2. If an estate tail or in fee descends upon him, the estate tail after possibility of issue extinct is merged. 3. If he is impleaded and makes default, the person in reversion must be received, as upon default of any other tenant (see more about this popular legal topic in the U.S. encyclopedia) for life. 4. An exchange between this tenant (see more about this popular legal topic in the U.S. encyclopedia) and a bare tenant (see more about this popular legal topic in the U.S. encyclopedia) for life, is good; for, with respect to duration, their. estates are equal. Cruise, Dig. tit. 4; Tho. Co. Litt. B. 2, c. 17; Co. Lit. 28, a.

Impossibility of having issue

Nothing but absolute impossibility of having issue, can give rise to this estate. Therefore, if a person gives lands to a man and his, wife and to the heirs of their two bodies and they live to a hundred years, without having issue, yet they are tenants in tail; for the law’ sees no impossibility of their having issue, until the death of one of them. Co. Litt. 28, a. See tenant (see more about this popular legal topic in the U.S. encyclopedia) in tail after possibility of issue extinct.

Freehold

An estate less than freehold is an estate which is not in fee, nor for life; for although a man has a lease for a thousand years, which is much longer than any life, yet it is not a freehold, but a mere estate for years, which is a chattel interest. Estates less than freehold are estates for years, estates at will and estates at sufferance.

Period

An estate for years, is one which is created by a leas; for years, which is a contract for the possession and profits of land for a determinate period, with the recompense of rent; and it is deemed an estate for years, though the number of years should exceed the ordinary limits of human life; and it is deemed an estate for years though it be limited to less than a single year. It is denominated a term, because its duration is absolutely defined.

For Life

The estate for life is bigger than an estate for years, though the latter should be for a thousand years. Co. Litt. 46, a; 2 Kent, Com. 278; 1 Brown’s Civ. Law, 191; 4 Kent, Com. 85; Cruise’s Dig. tit. 8; 4 Rawle’s R. 126; 8 Sergeant & Rawle’s Pennsylvania Reports (Reports of Cases adjudged in the Supreme Court of Pennsylvania, by Thomas Sergeant and William Rawle), 459; 13 Id. 60; 10 Vin. Ab. 295, 318 to 325.

Estate at will

An estate at will is not bounded by any definite limits with respect to time; but as it originated in mutual agreement, so it depends upon the concurrence of both parties. As it depends upon the will of both, the dissent of either may decide it. Such an estate or interest cannot, consequently, be the subject of conveyance to a stranger or of transmission to representatives. Watk. Prin. Con. 1; Litt. 68.

Tenancies

Estates at will have become infrequent under the operation of judicial decisions. Where no certain term is agreed on, they are now construed to be tenancies from year to year and each party is bound to give reasonable notice of an intention to end the estate. When the tenant (see more about this popular legal topic in the U.S. encyclopedia) holds over by consent given, either expressly or by implication, after the determination of a lease for years, it is held evidence of a new contract, without any definite period and is construed. to. be a tenancy from year to year. 4 Kent, Com. 210; Cruise, Dig. tit. 9, c. 1.

An estate at sufferance

The session of land by lawful title, but holds over by wrong after the determination of his interest. Co. Litt. 57, b. He has a bare naked possession, but no estate which he can transfer or transmit or which is capable of enlargement by. release, for he stands in no privity to his landlord.

Distinctions

There is a material distinction between the case of a person coming to an estate by act of the party and afterwards holding over and by act of the law and then holding over. In the first case, he is regarded as a tenant (see more about this popular legal topic in the U.S. encyclopedia) at sufferauce; and in the other, as an intruder, abator and trespasser. Co. Litt. 57, b; 2 Inst. 134 Cruise, Dig. t. 9, c. 2 4 Kent, Com. 115 13 Sergeant & Rawle’s Pennsylvania Reports (Reports of Cases adjudged in the Supreme Court of Pennsylvania, by Thomas Sergeant and William Rawle), 60 8 Sergeant & Rawle’s Pennsylvania Reports (Reports of Cases adjudged in the Supreme Court of Pennsylvania, by Thomas Sergeant and William Rawle), 459; 4 Rawle, 459; 4 Rawle’s R. 126.

Possession or Expectancy

As to the time of their enjoyment, estates are considered either in possession, (see this concept in the corresponding entry on this reference) or expectancy. (see this concept in the corresponding entry on this reference) The latter are either stayders, (see this concept in the corresponding entry on this reference) which are created, by the act of the parties and these are vested or contingent or reversions, (q, v.) created by act of law.

Main Ways

An estate way be hold in a variety of ways the most common of which are, 1. In severalty. 2. In joint tenancy. 3. In common. 4. In coparcenary. These will be separately considered.

In severalty

An estate in severally, is where only one tenant (see more about this popular legal topic in the U.S. encyclopedia) holds the estate in his own right, without any other person being joined or connected with him, in point-of interest, during the continuance of his estate.

In joint tenancy

An estate in joint tenancy, is where lands or tenements are granted to two or more people, to hold in fee simple, fee tail, for life, for years or at will. 2 Bl. Com. 179. Joint tenants always take by buy and necessarily have equal shares; while tenants in common, also coarseness, claiming under ancestors in different degrees, may have unequal shares and the proper and best mode of creating an estate in joint tenancy, is to limit to A B and C D and their assigns, if it be an estate for life; or to A B and C D and their heirs, if in) fee. Watk. Prin. Con. 86.

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The creation of the estate depends upon the expression in the deed or devise, by which the tenants hold, for it must be created by the acts of the parties and does not result from the operation of law. therefore, an estate given to several people, without any limit or explanation, will be construed a joint tenancy; for every part of the grant can take effect only, by considering the estate equal in all and the union of their names gives them a name in every respect.

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The properties of this estate arise from its unities; these are, 1. Unity of title; the estate must have been created and derived from one and the same conveyance. 2. There must be a unity of time; the estate must be created and vested at the same period. 3. There must be a unity of interest; the estate must be for the same duration and for the same quantity of interest. 4. There must be a unity of possession; all the tenants must possess and enjoy at the same time, for each must have an entire possession of every parcel, as of the whole. One has not possession of one-half and another of the other half, but each has an undivided moiety of the whole and not the whole of an undivided moiety.

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The distinguishing incident of this estate, is the right of survivorship or “jus accrescendi”; at common law, the entire tenancy or estate, upon the death of any of the joint tenants, went to the survivors and so on to the last survivor, who took an estate of inheritance. The right of survivorship, except, perhaps, in estates held in trust, is abolished in Pennsylvania (see more about this State laws here) , New York (see more about this State laws here) , Virginia (see more about this State laws here) , Kentucky (see more about this State laws here) , Indiana (see more about this State laws here) , Missouri (see more about this State laws here) , Tennessee (see more about this State laws here) , North and- South Carolina (see more about this State laws here) , Georgia (see more about this State laws here) and Alabama (see more about this State laws here). Griffith’s Register, h. t. In Connecticut (see more about this State laws here) it never was recognized. 1 Root, Rep. 48; 1 Swift’s Digest, 102. Joint tenancy may be destroyed by destroying any of its constituent unities, except that of time. 4 Kent, Com. 359. Vide Cruise, Dig. tit. 18; 1 Swift’s Dig. 102; 14 Vin. Ab. 470; Bac. Ab. Joint Tenants, &c.; 3 Saund. 319, n. 4; 1 Vern. 353,; Comyn’s Digest (A digest of the laws of England, 1822) Estates by Grant, K 1; 4 Kent, Com. 353; 2 Bl. Com. 181; 1 Litt. see. 304 2 Woodd. Lect. 127; 2 Preston on Abst. 67; 5 Binn. Rep. 18; Joint tenant; Survivor; Entirety.

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An estate in common, is one which is held by two or more people by unity of possession.

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They may acquire their estate by buy and hold by several and distinct titles or by title derived at the same time, by the same deed or will; or by descent. In this respect the American law differs from the English common law.

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This tenancy, according to the common law, is created by deed or will or by change of title from joint tenancy or coparcenary; or it arises, in many cases, by construction of law. Litt. sec. 292, 294, 298, 302; 2 Bl. Com. 192; 2 Prest. on Abstr. 75.

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In the United States it maybe created by descent, as well as by deed or will. 4 Kent, Com. 363. Vide Cruise, Dig. tit. 20 Comyn’s Digest (A digest of the laws of England, 1822) Estates by Grant, K 8.

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Estates in common can be dissolved in two ways only; first, by uniting all the titles and interests in one tenant (see more about this popular legal topic in the U.S. encyclopedia) secondly, by making partition.

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An estate in coparcenary, is an estate of inheritance in lands which descend from the ancestor to two or more people who are called coparceners or parceners.

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This is usually applied, in England (see more about this legal system) , to cases where lands descend to females, when there are no male heirs.

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As in the several states, estates generally descend to all the children equally, there is no substantial difference between coparceners and tenants in common. The title inherited by more people than one, is, in some of the states, expressly declared to be a tenancy in common, as in New York (see more about this State laws here) and New Jersey (see more about this State laws here) and where it is not so declared the effect is the same; the technical distinction between coparcenary and estates in common may be considered as essentially extinguished in the United States. 4 Kent, Com. 363. Vide Estates.

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IV. An estate upon condition is one which has a qualification annexed to it by which it may, upon the happening or not happening of a particular event, be created or enlarged or destroyed. Conditions may be annexed to estates in fee, for life or for years. These estates are divided into estates upon condition express or in deed; and upon conditions implied or in law.

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Estates upon express conditions are particularly mentioned ‘in the contract between the parties., Litt. s. 225; 4 Kent, Com. 117; Cruise, Dig. tit. 13. Estates upon condition in law are such as have a condition impliedly annexed to them, without any condition being specified in the deed or will. Litt. s. 378, 380; Co. Litt. 215, b; 233, b; 234, b.

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Considered as to the title which may be had in them, estates are legal and equitable. 1. A legal estate is one, the right to which can be enforced in a court of law. 2. An equitable, is a right or interest in land, which not having the properties of a legal estate, but being merely a right of which courts of equity will take notice, need the aid of such a court to, make it available. See, generally, Bouv. Inst. Index, h. t. [1]

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Notes and References

  1. Partialy, this information about estate is based on the Bouvier´s Law Dictionary, 1848 edition. There is a list of terms of the Bouvier´s Law Dictionary, including estate.

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