DEEDS & PROPERTY RIGHTS: PART 1

A Brief History of Conveying Property

This blog attempts to summarize the history of deeds and property conveyance. Nothing in this blog should be used in place of actual legal advice. Please contact an attorney if you have any real property issues.   

This Blog is a 2-part series on the following:

1. A historical review on the different rights that play a part in owning property and in turn how those rights can be conveyed from one party to another party; and
2. A breakdown of the modern Deed. 

To be clear, we are talking about Real Property and not Personal Property in this blog. Real Property can be thought of as typically immovable things like land, plants, and buildings, while Personal Property can be thought of as all the stuff not attached to those things. 

To begin part one, we will start with a recent history and give an overview of how modern legal scholars view property rights.

A Bundle of Rights

Have you ever really thought about what it means when people, businesses, or governments say they own property? When I say I own my house and the land it is on, how does that really break down in legal terms?

Can other people tell me to leave my property? Can other people tell me what I can build or create on my property? Can I exclude people I don’t like? Can people take things from my property or remove parts of it they think are valuable? Can I sell or give away my property in the future? What if I only want to give you part of it; what parts can I keep?

As you can see there are many complex issues that come with the idea of owning property and legal scholars have argued over what the term “Real Property” actually means. Over the last century, legal scholars have come to agree that Property is best defined as a “Bundle of Rights,” also commonly referred to as a “Bundle of Sticks.” 

The basic idea behind the Bundle Theory is that owning property as a concept is hard to define as a singular thing. In actuality, property is made up of many invisible rights and privileges between people. As such, those many rights and privileges can be conveyed (or transferred) as a whole bundle or be broken apart and conveyed separately. 

Single stick and bunch of sticks illustration

In general there are many rights, or “sticks,” that have been recognized by the legal community. The majority of these rights, however, can be summed up as the following: 

  • Right of Possession
  • Right of Control
  • Right of Exclusion
  • Right of Enjoyment 
  • Right of Disposition 

To add a little more fun to the bundle theory, you can note that these rights don’t have to apply equally to the whole property. For example, the right of control can be applied one way for the mineral rights, another way for the air rights, and yet another way for the timber rights. So at times there can seem to be an overwhelming amount of sticks for any one piece of property. 

No need to worry, though. Most of the time people convey the entire bundle, or at least very large chunks of the bundle, in the normal course of business. 

 

Conveying (or Transferring) Ownership

Now we need to pause and take a look further back in history so we can understand how people have the right to own property indefinitely and pass it down through their estate. Going all the way back to the times of Feudalism between the 9th and 15th centuries, Lords were the only people who “owned” land indefinitely. Regular people, or vassals, were then granted the rights to live, farm, and make revenue from the Lord’s land. These rights to the land, however, came at a price known as fealty. Simply put, fealty was when the vassal took an oath or pledge of allegiance and promised to serve the Lord in return for the rights to the land. When vassals held land in this way they were said to hold it in fealty, or in fee. This meant when the vassal died (or his agreed to term with the Lord ended), the next in line had to then pledge fealty to the Lord in order to attain the rights to said land. Vassals had to do this because the Lord maintained the ultimate ownership of the land. No matter what Vassal was approved to use it, the land ultimately passed through the estate of the Lord. 

Over time, this concept of holding property rights in fee came to refer to the heritability of ownership. In Feudal times, when a vassal held property rights in fee it meant those rights would revert back to the Lord at some point in the future, so the Lord could give it to his heirs who then let future vassals work the land. In modern times, this meaning has reversed; now when a person owns a property right in fee it means they own that particular right absolutely and indefinitely, and therefore may pass it to their own heirs.

In modern deeds you will still see this term used. It is now written as “in fee simple” or “in fee simple absolute.” When you see this written on a deed it means the person being granted the property rights is being given the greatest type of ownership in those rights. It is an infinite transfer of ownership that can be passed down to the person’s heirs through the generations for as long as the person (and their family) want to continue owning it. 

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