Understanding Land Rights: Land Leases for Genealogists -- An Introduction

Land ownership can take a multitude of different forms. As genealogists, we often think of land ownership in the absolute sense and assume that all there is to researching land ownership is entirely contained in deeds. But many recorded land records consist of interests in less than the entire ownership of the property. Many of our ancestors rented land or had only a partial interest in some land. This series of posts focuses on some of those partial land interests; grazing leases, mineral rights and other types of limited ownership that affect real property interests.

In the United States, we primarily inherited the English property system of land ownership. We refer to property interests of less than freehold, fee simple or outright ownership as leasehold interests. An example of the statistical differences between homeownership and rental property can be seen from the current U.S. Census Bureau's reports on "Residential Vacancies and Homeownership in the First Quarter of 2016." Currently, the U.S. has a vacancy rate of both owned and rented property of around 13.1% of the occupied properties, 55.2% are owner occupied and 31.7% are renter occupied. These figures vary due to economic conditions, property values and other complex factors.

Going way back in time, the concept of a leasehold interest began in the Middle Ages. All of the real property in England was theoretically owned by the monarch (King or Queen). The concept of a "leasehold" interest was created as a way to allow "villeins" (essentially serfs) to work a plot of land for a fixed period of time subject to the payment of dues (or rent). The various interests in land created by the feudal system were complex and involved several different layers of land interests. The villein or serf was bound to a certain manor (landhold interest) and was "sold" with any transfer in the interest in the land. There are detailed lists online of feudal terminology that assist in understanding these now ancient types of land interests. See Feudal Terminology, for an example. We commonly refer to those who have less than a full ownership interest in real property as "tenants,"

The essential elements of a leasehold interest evolved into a situation where the landowner owned the fee interest which was unlimited in its time ownership and all other interests for a limited time were subservient to the fee ownership. Originally, the evidence of the tenant's ownership was called a "copyhold" or copy of the court roll entry of admission to a holding.

One important factor of the historic land ownership situation in England and other European countries is that the leaseholder (villein, serf or whatever) could not legally leave the land. When doing genealogical research into early European history, including England, it is important to realize the fact that most of the population prior to the Industrial Revolution was actually, legally attached to the land and could not move. The implication of this fact is that most people were born, married and died within a relatively very small area. There were few exceptions and, for example, lists of children in a family showing births in different English counties are highly suspect as inaccurate beginning in the early 1800s and extending backward in time.

The legal rights of a tenant were extremely limited. It has only been in the last 50 years or so in the United States that "tenants' rights" have become an issue and have begun to be "protected" by laws. Residential tenancies were subject to strict termination proceedings. If a tenant failed to pay rent, the owner or owner's representative (the landlord) could summarily, without court order or permission, eject the tenant or in most cases, lock the tenant out of the premises and take possession of all of the tenant's belongings left on the premises and sell the belongings at an auction to pay the rent.

In my own experience, this was still the state of affairs with commercial leases early in my legal career. In representing landlords, from time to time, we would have situations where we locked out a tenant at 12:01 AM on the day the rent was overdue. Sometimes, these procedures were violently opposed by the tenants and resulted in extreme property damage to the leasehold.

Given the status of land ownership throughout the history of the United States, it is very possible that some or many of your ancestors were not land owners at all, but were tenants. In going through the United States Federal Census records, for example, here is a summary from the U.S. Archives of the land ownership data in the U.S. Federal Census records giving research clues to genealogists and others.

Real property 

The 1850 census (column 8), 1860 census (column 8), and 1870 census (column 8) indicate the value of real property (land) owned by each person.

• The 1900 census (column 25), 1910 census (column 26), 1920 census (column 7), and 1930census (column 7) indicate whether the person owned ("O") or rented ("R") the home or farm.
• The 1900 census (column 26), 1910 census (column 27), and 1920 census (column 8) indicate whether home and farm owners owned their property with a mortgage ("M") or free of mortgage ("F").
• The 1930 census (column 8) indicates the value of home, if owned, or the monthly rental, if rented.

These clues should lead researchers to the county recorder's office or equivalent agency for deeds, mortgages, and property tax records.

One common mistake made by genealogical researchers is to assume that information that your ancestors were renters forecloses any possibility of looking for land and property records. Although there is generally not a legal requirement that a rental agreement be recorded, there are many ways that the existence of a rental agreement or lease can be preserved in the land records.

Stay tuned for additional posts on this subject.