The legal system governing real property ownership in New Jersey can be traced to England since New Jersey was originally an English colony. In 1066, William the Conqueror became King of England. His reign resulted in the introduction of feudalism to England. Under the feudal system, all land was held by King, as sovereign. The king was able to convey land to nobles, generally as a reward for service to him. The nobles conveyed land to lesser noblemen, and these lesser noblemen to those underneath their rank in society, ending with transfers to serfs, who would work the land as tenants.
When land was conveyed under feudalism, the ownership of the land was not transferred, only the right to posses the land. The possession was subject to the superior rights of the transferrer. The feudal structure can be best compared to a system of leaseholds and subleaseholds, that also carried the right of transfer to heirs of the possessors (lessees.) The party in possession of property was a tenant, the estate acquired under feudalism was known as a tenement, and the manner of possession as a tenure. All whose who were transferred land were tenants of the landholder who transferred to land to them.
The “rent” paid by tenants to landlords under feudalism included services such as acting as militia and conducting wars for the landlord, performing religious duties and growing crops and livestock for the benefit of the landlord. The duties of the tenant to the landlord, high noblemen ranking just below, lesser nobleman underneath and serfs at the bottom, were part of the complex pyramid of political, economic, ethical and religious workings of Medieval England.
Statute Quai Emptores
An important law that resulted in the transformation of the feudal system over time was the statute Quia Emptores Terrarum. This statute was enacted in 1290 by Parliament, under the reign of King Edward I. The original purpose of the statute, according to legal scholars, was to establish the feudal obligations of predecessor possessors of land transferred to the current possessors. This statute was intented to stop the practice of subinfeudation, where the tenant could transfer the rights of possession only to others, becoming a landlord of land which, he had been made a tenant. If the land was transferred in this manner, without the transfer of feudal obligation, the landlord that transferred the land to the tenant lost significant feudal rights. Subinfeudation would stop benefiting the new tenants if feudal obligations were transferred to them, so Parliament believed this statute would stop subinfeudation.
An unintended consequence of this statute was that it expressly gave the tenant the right to transfer property, and it required that the person to whom the property was transferred would stand in the place of the transferor. This created ownership in the fee simple, something that had not existed under feudalism before. The transfer was “allodial”—meaning the real property owner has individual free and full ownership rights in the land—not feudal. The king still had ultimate ownership of all land, but the right to transfer property in this way is the basis of the system of real estate transfer in the United States today. Allowing this type of transfer under the Statute of Quia Emptores ultimately proved to be a catalyst of destruction of the feudal system.
Movement Away from Feudaulism
The move away from the feudal system was not immediate. A variety of statutes were enacted after the year 1290 that impacted the conveyance of real property and whittled away at the trapped condition of people within their strata of nobility, or lack thereof, in the feudal society. Over time, the accumulation of the changes made by these enacted statutes, the results of their use in the conveyance of property, and their application by the courts, along with changes in societal views and mores acted to move English law and its people away from the feudal system. By the time America was colonized, feudalism in England had almost entirely withered away.
Statute of Tenures
An important statute that was enacted closer to the founding of the American Colonies occurred in England in 1660, and was called the Tenures Abolition Act, or the Statute of Tenures. This Act transferred most feudal tenancies to the tenancies of socage. A tenant in socage was not required to give religious or military duties to the feudal lord. Instead, the tenant’s feudal duty was to make a specified payment as payment for holding land. Most commonly, the payment was made in cash, but these tenancies could require payment through agricultural service, such as paying with produce. At the death of a tenant in socage, the land was conveyed to the tenant’s heir upon a payment by the heir to the feudal lord. This payment amount was also known as “relief” and normally was equal to one year’s rent to the land.
New Jersey Statutes and the Removal of Feudal Law
In Title 46 of New Jersey’s Statutes are found statutes from colonial and early American times that served to remove all traces of feudalism from New Jersey law:
New Jersey Statute Quia Emptores Terrarum
N.J.S.A Section 46: 3-5 Alienation of freeholds (statute quia emptores terrarium,) states as follows, “From and after March eighteenth, one thousand seven hundred and ninety-five, any freeholder may give, sell or alien the real estate whereof he is, or at any time shall be, seized in fee simple, or any part thereof, at his pleasure; and such donee, purchaser or alienee shall hold the same free of any tenure or service to the donor, seller or alienor.”
Feudal Tenures Established
N.J.S.A Section 46: 3-1 contains the statute of tenures: “The feudal tenure estates, and the incidents thereof, taken away, discharged and abolished from and after March twelfth, one thousand six hundred and sixty-four, by section tow of an act entitled ‘An act concerning tenures,’ passed February eighteenth, one thousand seven hundred and ninety-five, shall so continue to be taken away, discharged and abolished; and no such estate or any incident thereof, shall, at any time, be created in any matter whatever.”
Continuing in Section 46:3-2, certain tenures and holdings were turned into free and common socage: “The tenures of honors, manors lands, tenements, or hereditaments, or of estates of inheritance a the common law, held either of the king of England, or of any other person or body politic or corporate, at any time before July fourth, one thousand seven hundred and seventy-six, and declared, by section three of an act entitled ‘An act concerning tenures,’ passed February eighteenth, one thousand seven hundred and ninety-five, to be turned into holdings by free and common socage from the time of their creation and forever thereafter, shall continue to be held in free and common socage, discharged of all the tenures, charges and incidents enumerated in said section three.”
In Sections 46: 3-3 and 3-4, conveyances are required to operate in free and common socage:
46: 3-3, “All conveyances and devises of any manors, lands, tenements or hereditaments, made at any time prior to July fourth, one thousand seven hundred and seventy-six, shall be construed to be such effect as if such manors, lands, tenements or hereditaments had been then held and continued to be held in free and common socage only.”
46: 3-4, “Nothing contained in this title shall take away or be construed to take away or discharged any rents certain, or other rights incident or belonging to tenure in common socage created prior to July fourth, one thousand seven hundred and seventy-six, and due or to grow due to this state or any person, or the distresses incident thereunto.”
In Section 46: 3-6, it is expressly stated that all gifts, grants and conveyances by the state be allodial: “All gifts, grants, or conveyances, made prior to and after July fourth, one thousand seven hundred and seventy-six, of any estate of inheritance, by letters patent, under the great seal of this state, or in any other manner by this state, by the legislature thereof, or by the commissioners or agents of forfeited estates, or by other lawful and competent authority under this state, shall be remain allodial, and not feudal, and shall forever be and continue in free and pure allodium only, forever discharged of all feudal tenures and the incidents thereof, and all other services whatsoever.”
Conveyance Under the Feudal System
Under the feudal system, conveyance occurred through a ceremony called “feoffment with livery of seinsin” “livery of seinsin.” This ritualistic ceremony involved the transferor, or feoffor, standing on the real property and handling the transferee, or feoffee, a tangible object to demonstrate the conveyance of the land. For example, the feoffor would hand the feoffee a twig, some kind of dirt or turf as a symbol of giving the land, or perhaps a ring, cross, or a knife, to symbolize the transfer of real property including a house. The livery of seisin may have included a written deed or “charter of feoffment,” but the written document was not sufficient in itself to convey the property; the conveyance had to be done through a livery of seisin.”
Other Important Conveyance Statutes
Other important statutes in English law that impacted the conveyance of land included the Statute of Uses, passed in 1535 by Parliament under the reign of King Henry VIII. It was passed to stop what had become a common practice among feudal landholders to avoid feudal service by creating a “use.” A “use” was an estate in land where the tenant-landholder would place the property he held in the name of one person for the benefit of a third party. The third party was the original tenant-landholder himself or someone else the tenant-landholder selected. The third party was the feoffee. The original landholder, or feoffor, would transfer the use to several feoffees. Upon the death of a feoffee, the deceased’s interest in the property did not pass by inheritance, the feudal obligations also did not pass, and the land could benefit to the original tenant-landholder, or feoffor, without having to provide feudal service to feudal lord, including the King. To stop this practice, and thereby, to try to stop the loss of feudal revenues to the King, the Statute of Uses was enacted. The statute required that property title passed to the party for whom the property was being used, and required that land must be passed onto the oldest son upon the death of the landholder.
Subsequent to the passage of the Statute of Uses, to which landholders and the courts had strong objection, the Statute of Wills was passed in 1540. This statute allowed landowners to bequeath and transfer their property upon death via a written will or testament.
The New Jersey Statutes include the Statute of Uses in Section 46: 3-9: “Every person, to whom the use or uses of any real estate within this state have been sold, given, limited granted released or conveyed by deed, grant or any other legal conveyance whatsoever, or that shall hereafter be granted by any deed or conveyance whatsoever, and his heirs and assigns, shall be held to be in as full and ample possession of such real estate, to all intents, constructions and purposes, as if such person, his heirs and assigns, were possessed thereof by solemn livery of seizin and possession, any usage or custom to the contrary notwithstanding.”
The Statute of Frauds was another critical statute underlying the conveyance of property in New Jersey. Under the Statute of Frauds, all transfers of real property must be in writing. The New Jersey Statutes that include the provisions of the Statute of Frauds are Title 25:
Title 25: 1-11: Writing Requirement, Conveyances of an Interest in Real Estate.
a. A transaction intended to transfer an interest in real estate shall not be affective to transfer ownership of the interest unless:
(1) A description of the real estate sufficient to identify it, the nature of the interest, the face of the transfer and the identity of the transferor and the transferee are established in a writing signed by or on behalf of the transferor: or
(2) The transferor has placed the transferee in possession of the real estate as a result of the transaction and the transferee has paid all or part of the consideration for the transfer or has reasonably relied on the effectiveness of the transfer to the transferee’s detriment.
b. A transaction which does not satisfy the requirements of this section shall not be enforceable except as an agreement to transfer an interest in real estate section 4 of this act.
c. This section shall not apply to leases.
d. This section shall not apply to the creation of easements by prescription or implication.
(Note: Although real estate transfers are required to be in writing under the Statute of Frauds, a court may hold that an estate or interest has been created without a written instrument. In certain cases, a court may find that an oral agreement binds a party in a real estate transaction.)