Use (law)

Use, as a term in real property of common law countries, amounts to a recognition of the duty of a person, to whom property has been conveyed for certain purposes, to carry out those purposes.

Uses were equitable or beneficial interests in land. In early law a man could not dispose of his estate by will nor could religious houses acquire it. As a method of evading the common law, the practice arose of making feoffments to the use of, or upon trust for, persons other than those to whom the seisin or legal possession was delivered, to which the equitable jurisdiction of the chancellor gave effect. To remedy the abuses which it was said were occasioned by this evasion of the law the Statute of Uses of 1536 was passed. However it failed to accomplish its purpose. Out of this failure of the Statute of Uses arose the modern law of trusts (see that article for further details).^[1]

Development of the use

One reason for the creation of uses was a desire to avoid the strictness of the rules of the common law, which considered seisin to be all-important and therefore refused to allow a legal interest to be created to spring up in the future. Although the common law recognised a use in chattels from an early period, it was clear by the end of the fourteenth century that land law had no room for this notion. Uses, nonetheless, satisfied contemporary needs in fifteenth century England. Its first application in relation to land was to protect the ownership of the land by the Franciscan Monks, who were pledged to vows of poverty and unable to own land. This enabled the feoffee to uses for the benefit of a cestui que use. The common law did not recognise the cestui que use but affirmed the right of ownership by feoffee to use. The term "use" translates into "Trust" and this was the legal beginning of Trusts and the use of trusts to defeat feudal, death and tax dues.

They served the following purposes:

• Substitute of wills: Before the Statute of Wills 1540, a tenant in fee simple could not devise the interest in the land by a will at common law. Upon his death the land devolved upon his eldest son or, if he died without leaving an heir, the land would escheat to his overlord. The use could avoid these difficulties by allowing the tenant to convey his land to a friend, on the understanding that the friend would permit the grantor, and, after the grantor's death, the grantor's designated persons (beneficiaries or cestuis que use) to have the full benefit and enjoyment of the land.
• Avoidance of feudal burdens: By the device of a use, the tenant could avoid dues upon his death, since he was not seised of the land at his death.
• Providing for grantor's wife: Since man and wife were considered to be one person at common law, a man could not convey land to his wife. This difficulty was overcome if the land was conveyed to a feoffee to uses to the use of the grantor's wife.
• Avoidance of the Statutes of Mortmain: The statutes prohibited the conveyance of land to religious bodies. They were avoided by conveyance to a feoffee to uses to the use of a religious order.

The rapid development of the use was probably one of the consequences of the Black Death, during which many landowning nobility died, leaving their realty to their widows and minor orphans.

Enforcement of uses

The Court of Chancery eventually assumed the task of enforcing uses. Later, it decided that not only was the conscience of the feoffee to uses bound by the use, but also the conscience of his heir. Thus, on the death of the feoffee to uses the use could be enforced against the feoffee's heir to whom the legal fee simple estate had descended.

The idea of a tie in conscience was gradually extended, and with it the sphere of enforceability of the use. The modern position was reached by the beginning of the sixteenth century: The use could be enforced against anyone in the world acquiring an interest in the land other than a bona fide purchaser of the legal estate for value without notice of the use. In a conveyance "to A and his heirs to the use of B and his heirs", the common law took cognisance only of A and went no further. But if A attempted to act inconsistently with the dictates of his conscience, the Court of Chancery would enforce the use against him.

From this time, two different kinds of interests in the land could exist side by side, a fragmentation between legal and beneficial.

The Statute of Uses

From early on, legislation interfered with uses where they were employed for purposes that were regarded as improper. During the 14th and 15th centuries, legislation was passed which was designed to prevent uses being created so as to defraud creditors.

As the lord at the top of the feudal pyramid, the King suffered most from the employment of uses and evasion of tenurial incidents. The Statute of Uses (1536) was the culmination of various attempts by Henry VIII to solve the problem. The statute operated to execute the use so that the interest of the cestui que use, which was previously an equitable interest, was converted into a legal interest.

See also

• Conveyancing
• Harm

References

1.  One or more of the preceding sentences incorporates text from a publication now in the public domain: Chisholm, Hugh, ed. (1911). "Uses". Encyclopædia Britannica 27 (11th ed.). Cambridge University Press. p. 809.