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Thursday, June 9, 2016

Understanding Land Rights: Land Leases for Genealogists -- Leaseholds Revealed

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In order for a lease or rental agreement to be legally possible, it was necessary to separate the outright ownership of land from its possession. In feudal times, land ownership was evidenced by "seisin" or possession of the land by a freehold estate. Non-freehold estates included estates for years, periodic estates and estates at will. The modern equivalents of these estates are the long-term lease, lesser term rental agreements and oral rental agreements or tenancy at sufferance.

The main issues concerning the possession of real property involve claims to ownership. There was an old saying that "possession was nine tenths of the law" but this once commonly heard statement is both misleading and mostly false. Possession, particularly of real property, can lead to ownership in some cases, such as adverse possession, but mere possession of real property confers few rights, if any, depending on the circumstances.

In the English system of land law, there is no "unowned" property. The monarch owned all of the land and any right of possession or ownership ultimately depended on the absolute ownership rights he or she claimed. But over the long history of the development of property law, certain types of ownership developed. Any claim to any form of property ownership or possession today in the United States (or almost any other country) ultimately depends on the degree to which the government acknowledges such claims. As I pointed out in my previous post introducing this subject, for example, the United States Federal Government can exercise it right to claim any property in the United States through lack of payment of taxes, by eminent domain or several other legal processes. 

Some genealogical researchers automatically assume that if their ancestors were renting property that there will be no reason to research the land and property records where they lived. However, that simplistic view of rental agreements ignores the fact that rental agreements (actually another more common term for leases usually applied to residential property) have a multitude of functions in our history. Land leases (rental agreements) are legally enforceable by all of the parties concerned, both the lessors and the lessees, and give rise to a chose in action or right to sue in court. 

Anciently, almost all land leases dealt with agricultural property and the right to retain some or all of what the land produced. As societies became urbanized, rental agreements for dwelling units became more common.

Let me go through the levels of ownership as they now exist in the United States in very general way to illustrate where leases and rental agreements fall in the ownership continuum.

First we have bare possession without any claim of right. For example, if I walk across my neighbor's property, I am either an invitee (there by the invitation of the owner), a mere trespasser (there without any legal right to remain on the property) or a licensee with some valid reason to be on the property by agreement or understanding. If was not invited to enter the property or given some sort of license to enter, I am by default a trespasser at sufferance. In other words, I am only allowed on the property because the owner has taken no action to remove me from the property. The laws regarding trespass are very complex and notwithstanding millions of "No Trespassing" signs in the United States, the laws across the country concerning what the landowner can and cannot do to prevent trespassing are rather limited.

The next level of possession involves invitations and licenses. The owner of the property can either invite me to come onto the property directly or by implication. For example, with a walkway and an open entrance to the property, I can assume that I can go onto the property without a formal invitation assuming I do no damage or cause no disturbance to the property. In the next level of possession, I might be given a license to come onto the property. For example, I may have been hired to do repairs to the property or to maintain it. The effect of a "No Trespassing" sign is to give notice to potential visitors to the property that they will not be allowed to casually enter the property without a formal invitation or license.

The next level of possession involves some sort of formal agreement concerning possession, even brief possession such as crossing the property. For example, the landowner may give someone an "easement" that is the right to cross the owned property for some particular purpose. In the United States we have easements for access and necessity. When you purchase property in the United States, you may find that your property is subject to easements from a utility company or the government.

At this point, genealogists need to understand that all of these different levels of possession of real property can give rise to documentation and much of this documentation can find its way into the record repositories. If you want to see what kinds of permissive uses there might be on your own owned property, then all you need to do is look at a title report document that may have been created when you purchased your own property. Even it you are renting property, you might want to go back to your rental agreement and see what rights you have granted to your landlord or others to enter into your property, usually for repairs or maintenance.

Moving up the ownership level, we finally get to the point where the possessor of real property obtains some of the rights of ownership, that is, the possessor can begin to maintain his or her possession subject to some conditions. When does a trespasser become a squatter? This is a valid legal question and depends on the efforts taken by the ultimate owner of the property to prevent occupation of the property. In the United States (and elsewhere) there are laws of adverse possession. These laws define the rights of possessory claimants to obtain further rights to real property, usually by continuously possessing and using the real property for some purpose for a period of years. The burden is on the owner to enforce his or her ownership of the property and failure to take action to remove the possessor can mature into a claim of actual ownership. Ownership does not pass automatically. The claim of adverse possession must be formally ratified by an action in a court.

In all other cases, there has to be some sort of agreement to possess the property made between the landowner and the possessor. These agreements are collectively called leases and rental agreements. The basic issue is whether the possessor claims ownership of the property or acknowledges that no such claim exists. If the owner allows the possessor to stay on the property, but both the owner and the possessor agree that such possession is not a claim of ownership, then the possessor has various levels of possession:
  • Possession through sufferance - the possessor is allowed to stay on the property with or without rent payment or any formal agreement as to the terms of possession. 
  • Possession at will -- the possessor can stay on the property with some sort of written or even oral agreement, but the owner or landlord can terminate possession at any time either with or without notice. 
  • Possession by agreement -- this includes all other types of possession and use of real property and commonly involves payment of rent for a specific term which may or may not be automatically extended.
If the possessor is required to make any sort of payment, in money or in kind, for possession, the possession will never mature into a claim of ownership. 

Again, from a genealogical research standpoint, any or all of these types of agreements can give rise to court involvement and legal action that may have been preserved in court records. Land ownership and possession is a complex legal issue and genealogists who understand the importance of land can benefit from finding out about their ancestors through research into courts documents and recorded documents. 

Here is the first part of this series. 

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