Escheat

Escheat /ɪsˈtʃiːt/ (from Latin excidere 'fall away') is a common law doctrine that transfers the real property of a person who has died without heirs to the crown or state. It serves to ensure that property is not left in "limbo" without recognized ownership. It originally applied to a number of situations where a legal interest in land was destroyed by operation of law, so that the ownership of the land reverted to the immediately superior feudal lord.

The term "escheat" derives ultimately from the Latin ex-cadere, to "fall-out", via mediaeval French escheoir. The sense is of a feudal estate in land falling-out of the possession by a tenant into the possession of the lord.

"Escheat" may also, rarely, be referred to by the shortened form "cheat". The common term "cheat" for unethical or rule-breaking behavior evolved from this term, although the legal term does not carry any of that meaning.

In feudal England, escheat referred to the situation where the tenant of a fee (or "fief") died without an heir or committed a felony. In the case of such demise of a tenant-in-chief, the fee reverted to the King's demesne permanently, when it became once again a mere tenantless plot of land, but could be re-created as a fee by enfeoffment to another of the king's followers. Where the deceased had been subinfeudated by a tenant-in-chief, the fee reverted temporarily to the crown for one year and one day by right of primer seisin after which it escheated to the over-lord who had granted it to the deceased by enfeoffment. From the time of Henry III, the monarchy took particular interest in escheat as a source of revenue.

At the Norman Conquest of England in 1066, all the land of England was claimed as the personal possession of William the Conqueror under allodial title. The monarch thus became the sole "owner" of all the land in the kingdom, a position which persists to the present day. He then granted it out to his favoured followers, who thereby became tenants-in-chief, under various contracts of feudal land tenure. Such tenures, even the highest one of "feudal barony", never conferred ownership of land but merely ownership of rights over it, that is to say ownership of an estate in land. Such persons are therefore correctly termed "land-holders" or "tenants" (from Latin teneo to hold), not owners. If held freely, that is to say by freehold, such holdings were heritable by the holder's legal heir. On the payment of a premium termed feudal relief to the treasury, such heir was entitled to demand re-enfeoffment by the king with the fee concerned.

Where no legal heir existed, the logic of the situation was that the fief had ceased to exist as a legal entity, since being tenantless no one was living who had been enfeoffed with the land, and the land was thus technically owned by either the crown or the immediate overlord (where the fee had been subinfeudated by the tenant-in-chief to a mesne lord, and perhaps the process of subinfeudation had been continued by a lower series of mesne-lords) as ultimus haeres. Logically therefore it was in the occupation of the crown alone, that is to say in the royal demesne. This was the basic operation of an escheat ('excadere'), a failure of heirs.

Escheat could also take place if a tenant was outlawed or convicted of a felony, when the King could exercise the ancient right of wasting the criminal's land for a year and a day, after which the land would revert to the overlord. (However, one guilty of treason (rather than mere felony) forfeited all lands to the King. John and his heirs frequently insisted on seizing as terrae Normannorum (i.e. "lands of the Normans") the English lands of those lords with holdings in Normandy who preferred to be Normans rather than Englishmen, when the victories of Philip II of France forced them to make a proclamation of allegiance to France.) Since disavowal of a feudal bond was a felony, lords could escheat land from those who refused to perform their feudal services. On the other hand, there were also tenants who were merely sluggish in performing their duties, while not being outright rebellious against the lord. Remedies in the courts against this sort of thing, even in Henry de Bracton's day, were available, but were considered laborious and were frequently ineffectual in compelling the desired performance. The most common mechanism was distraint, also known as distress (districtio), whereby the lord would seize chattels or goods belonging to the tenant, to hold until performance was achieved. This practice had been addressed in the 1267 Statute of Marlborough. Even so, it remained the most common extrajudicial method applied by overlords at the time of Quia Emptores.

Thus, under English common law, there were two main ways an escheat could happen: