Escheat
Encyclopedia
Escheat is a common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

 doctrine which transfers the property of a person who dies without heirs to the crown or state. It serves to ensure that property is not left in limbo without recognised ownership. It originally applied to a number of situations where a legal interest in land was destroyed by operation of law
Operation of law
The phrase "by operation of law" is a legal term that indicates that a right or liability has been created for a party, irrespective of the intent of that party, because it is dictated by existing legal principles. For example, if a person dies without a will, his heirs are determined by operation...

, so that the ownership of the land reverted to the immediately superior feudal
Feudalism
Feudalism was a set of legal and military customs in medieval Europe that flourished between the 9th and 15th centuries, which, broadly defined, was a system for ordering society around relationships derived from the holding of land in exchange for service or labour.Although derived from the...

 lord.

Modern application

Most common-law jurisdictions have abolished the concept of feudal land tenure
Feudal land tenure
Under the English feudal system several different forms of land tenure existed, each effectively a contract with differing rights and duties attached thereto. Such tenures could be either free-hold, signifying that they were hereditable or perpetual, or non-free where the tenancy terminated on the...

 of property, and so the concept of escheat has lost something of its meaning. In England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...

, where escheat still operates as a doctrine of land law, since the abolition of feudal tenure in 1660 there are no legally recognised feudal overlords to take property on an escheat, so that in practice the recipient of an escheated property is the Crown
The Crown
The Crown is a corporation sole that in the Commonwealth realms and any provincial or state sub-divisions thereof represents the legal embodiment of governance, whether executive, legislative, or judicial...

, under its allodial title
Allodial title
Allodial title constitutes ownership of real property that is independent of any superior landlord, but it should not be confused with anarchy as the owner of allodial land is not independent of his sovereign...

.

The term is often now applied to the transfer of the title to a person's property to the state when the person dies intestate without any other person capable of taking the property as heir. For example, a common-law jurisdiction's intestacy statute might provide that when someone dies without a will
Will (law)
A will or testament is a legal declaration by which a person, the testator, names one or more persons to manage his/her estate and provides for the transfer of his/her property at death...

, and is not survived by a spouse, descendants, parents, grandparents, descendants of parents, children or grandchildren of grandparents, or great-grandchildren of grandparents, then the person's estate will escheat to the state.

In some jurisdictions, escheat can also occur when an entity, typically a bank, credit union or other financial institution, holds money or property which appears to be unclaimed, for instance due to a lack of activity on the account by way of deposits, withdrawals or any other transactions for a lengthy time in a cash account. In many jurisdictions, if the owner cannot be located, such property can be revocably escheated to the state.

In commerce, it is the process of re-assigning legal title in unclaimed or abandoned payroll checks, or stocks and shares whose owners cannot be traced, to a state authority (in the United States). A company is required to file unclaimed property reports with its state annually and, in some jurisdictions, to make a good-faith effort to find the owners of their dormant accounts. The escheating criteria are set by individual state regulations.

Etymology

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
Estate in land
An estate in land is an interest in real property that is or may become possessory.This should be distinguished from an "estate" as used in reference to an area of land, and "estate" as used to refer to property in general....

 falling-out of the possession by a family into the possession by the overlord.

Origins in feudalism

In feudal England, escheat referred to the situation where the tenant of a fee (or "fief") died without an heir or committed a felony
Felony
A felony is a serious crime in the common law countries. The term originates from English common law where felonies were originally crimes which involved the confiscation of a convicted person's land and goods; other crimes were called misdemeanors...

. In the case of such decease of a tenant-in-chief
Tenant-in-chief
In medieval and early modern European society the term tenant-in-chief, sometimes vassal-in-chief, denoted the nobles who held their lands as tenants directly from king or territorial prince to whom they did homage, as opposed to holding them from another nobleman or senior member of the clergy....

, the fee reverted to the King's demesne
Demesne
In the feudal system the demesne was all the land, not necessarily all contiguous to the manor house, which was retained by a lord of the manor for his own use and support, under his own management, as distinguished from land sub-enfeoffed by him to others as sub-tenants...

 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
Subinfeudation
In English law, subinfeudation is the practice by which tenants, holding land under the king or other superior lord, carved out new and distinct tenures in their turn by sub-letting or alienating a part of their lands....

 by a tenant-in-chief, the fee reverted temporarily to the crown for one year and one day
Year and a day rule
The year and a day rule has been a common traditional length of time for establishing differences in legal status. The phrase "year and a day rule" is most commonly associated with the former common law standard that death could not be legally attributed to acts or omissions that occurred more...

 by right of primer seisin
Seisin
Seisin is the term denoting the legal possession of a feudal fiefdom . It was used in the form of "the son and heir of X has obtained seisin of his inheritance", and thus is effectively a term concerned with conveyancing in the feudal era...

after which it escheated to the over-lord who had granted it to the deceased by enfeoffment. From the time of Henry III
Henry III of England
Henry III was the son and successor of John as King of England, reigning for 56 years from 1216 until his death. His contemporaries knew him as Henry of Winchester. He was the first child king in England since the reign of Æthelred the Unready...

, the monarchy took particular interest in escheat as a source of revenue.

Background

At the Norman Conquest of England
Norman conquest of England
The Norman conquest of England began on 28 September 1066 with the invasion of England by William, Duke of Normandy. William became known as William the Conqueror after his victory at the Battle of Hastings on 14 October 1066, defeating King Harold II of England...

 all the land of England was claimed as the personal possession of William the Conqueror under allodial title
Allodial title
Allodial title constitutes ownership of real property that is independent of any superior landlord, but it should not be confused with anarchy as the owner of allodial land is not independent of his sovereign...

. 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
Tenant-in-chief
In medieval and early modern European society the term tenant-in-chief, sometimes vassal-in-chief, denoted the nobles who held their lands as tenants directly from king or territorial prince to whom they did homage, as opposed to holding them from another nobleman or senior member of the clergy....

, under various contracts of feudal land tenure
Feudal land tenure
Under the English feudal system several different forms of land tenure existed, each effectively a contract with differing rights and duties attached thereto. Such tenures could be either free-hold, signifying that they were hereditable or perpetual, or non-free where the tenancy terminated on the...

. Such tenures, even the highest one of "feudal barony
English feudal barony
In England, a feudal barony or barony by tenure was a form of Feudal land tenure, namely per baroniam under which the land-holder owed the service of being one of the king's barons. It must be distinguished from a barony, also feudal, but which existed within a county palatine, such as the Barony...

", never conferred ownership of land but merely ownership of rights over it, that is to say ownership of an estate in land
Estate in land
An estate in land is an interest in real property that is or may become possessory.This should be distinguished from an "estate" as used in reference to an area of land, and "estate" as used to refer to property in general....

. 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
Feudal relief
Feudal Relief was a one-off "fine" or form of taxation payable to an overlord by the heir of a feudal tenant to licence him to take possession of his fief, i.e. an estate-in-land, by inheritance...

 to the treasury
Treasury
A treasury is either*A government department related to finance and taxation.*A place where currency or precious items is/are kept....

, such heir was entitled to demand re-enfeoffment
Enfeoffment
Under the European feudal system, enfeoffment was the deed by which a person was given land in exchange for a pledge of service. This mechanism was later used to avoid restrictions on the passage of title in land by a system in which a landowner would give land to one person for the use of another...

 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 thus technically was owned by the crown without a tenant. Logically therefore it was in the occupation of the crown alone, that is to say in the royal demesne
Demesne
In the feudal system the demesne was all the land, not necessarily all contiguous to the manor house, which was retained by a lord of the manor for his own use and support, under his own management, as distinguished from land sub-enfeoffed by him to others as sub-tenants...

. This was the basic operation of an escheat, a failure of heirs. Where the fee had been subinfeudated by the tenant-in-chief
Tenant-in-chief
In medieval and early modern European society the term tenant-in-chief, sometimes vassal-in-chief, denoted the nobles who held their lands as tenants directly from king or territorial prince to whom they did homage, as opposed to holding them from another nobleman or senior member of the clergy....

 to a mesne lord
Mesne lord
A mesne lord was a lord in the feudal system who had vassals who held land from him, but who was himself the vassal of a higher lord. A mesne lord did not hold land directly of the king, that is to say he was not a tenant-in-chief. His subinfeudated estate was called a "mesne estate"...

, and perhaps the process of subinfeudation had been continued by a lower series of mesne-lords, the operation of an escheat altered so that on failure of the heir of the holder of the fee the escheat would be to the demesne of the holder's immediate overlord.

Procedure

From the 12th century onward, the Crown appointed escheators to manage escheats and report to the Exchequer
Exchequer
The Exchequer is a government department of the United Kingdom responsible for the management and collection of taxation and other government revenues. The historical Exchequer developed judicial roles...

, with one escheator per county
County
A county is a jurisdiction of local government in certain modern nations. Historically in mainland Europe, the original French term, comté, and its equivalents in other languages denoted a jurisdiction under the sovereignty of a count A county is a jurisdiction of local government in certain...

 established by the middle of the 14th century. Upon the death of a tenant-in-chief, the escheator would be instructed by a writ of diem clausit extremum ("he has closed his last day", i.e. he is dead) issued by the king's chancery
Chancery
Chancery may refer to:* Chancery , the building that houses a diplomatic mission, such as an embassy* Chancery , a medieval writing office* Chancery , in Ceredigion, Wales...

, to empanel a jury to hold an "inquisition post mortem" to ascertain who the legal heir was, if any, and what was the extent of the land held. Thus it would be revealed whether the king had any rights to the land. It was also important for the king to know who the heir was, and to assess his personal qualities, since he would thenceforth form a constituent part of the royal army, if he held under military tenure
Feudal land tenure
Under the English feudal system several different forms of land tenure existed, each effectively a contract with differing rights and duties attached thereto. Such tenures could be either free-hold, signifying that they were hereditable or perpetual, or non-free where the tenancy terminated on the...

. If there was any doubt, the escheator would seize the land and refer the case to the king's court where it would be settled, ensuring that not one day's revenue would be lost. This would be a source of concern with land-holders when there were delays from the court.

Historical position

Thus, under English common law, there were two main ways an escheat could happen:
  1. A person's property escheated if he was convicted of a felony
    Felony
    A felony is a serious crime in the common law countries. The term originates from English common law where felonies were originally crimes which involved the confiscation of a convicted person's land and goods; other crimes were called misdemeanors...

     (but not treason
    Treason
    In law, treason is the crime that covers some of the more extreme acts against one's sovereign or nation. Historically, treason also covered the murder of specific social superiors, such as the murder of a husband by his wife. Treason against the king was known as high treason and treason against a...

    , when the property was forfeit
    Asset forfeiture
    Asset forfeiture is confiscation, by the State, of assets which are either the alleged proceeds of crime or the alleged instrumentalities of crime, and more recently, alleged terrorism. Instrumentalities of crime are property that was allegedly used to facilitate crime, for example cars...

    ed to the Crown). If the person was executed
    Capital punishment
    Capital punishment, the death penalty, or execution is the sentence of death upon a person by the state as a punishment for an offence. Crimes that can result in a death penalty are known as capital crimes or capital offences. The term capital originates from the Latin capitalis, literally...

     for the crime, his heirs were attainted
    Attainder
    In English criminal law, attainder or attinctura is the metaphorical 'stain' or 'corruption of blood' which arises from being condemned for a serious capital crime . It entails losing not only one's property and hereditary titles, but typically also the right to pass them on to one's heirs...

    , i.e. ineligible to inherit. In most common-law jurisdictions, this type of escheat has been abolished outright, for example in the United States
    United States
    The United States of America is a federal constitutional republic comprising fifty states and a federal district...

     under Article 3 § 3 of the United States Constitution
    United States Constitution
    The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...

    , which states that attainders
    Bill of attainder
    A bill of attainder is an act of a legislature declaring a person or group of persons guilty of some crime and punishing them without benefit of a judicial trial.-English law:...

     for treason
    Treason
    In law, treason is the crime that covers some of the more extreme acts against one's sovereign or nation. Historically, treason also covered the murder of specific social superiors, such as the murder of a husband by his wife. Treason against the king was known as high treason and treason against a...

     do not give rise to posthumous forfeiture, or "corruption of blood".
  2. If a person had no heir to receive their property under a will
    Will (law)
    A will or testament is a legal declaration by which a person, the testator, names one or more persons to manage his/her estate and provides for the transfer of his/her property at death...

     or under the laws of intestacy
    Intestacy
    Intestacy is the condition of the estate of a person who dies owning property greater than the sum of their enforceable debts and funeral expenses without having made a valid will or other binding declaration; alternatively where such a will or declaration has been made, but only applies to part of...

    , then any property he owned at death would escheat. This rule has been replaced in most common-law jurisdictions by bona vacantia
    Bona vacantia
    Bona vacantia is a legal concept associated with property that has no owner. It exists in various jurisdictions, with consequently varying application, but with origins mostly in English law.-Canada:...

    or a similar concept.

Current operation

Escheat can still occur in England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...

, if a person is made bankrupt or a corporation
Corporation
A corporation is created under the laws of a state as a separate legal entity that has privileges and liabilities that are distinct from those of its members. There are many different forms of corporations, most of which are used to conduct business. Early corporations were established by charter...

 is liquidated
Liquidation
In law, liquidation is the process by which a company is brought to an end, and the assets and property of the company redistributed. Liquidation is also sometimes referred to as winding-up or dissolution, although dissolution technically refers to the last stage of liquidation...

. Usually this means that all the property held by that person is 'vested in' (transferred to) the Official Receiver
Official Receiver
An officer of the Insolvency Service of the United Kingdom, the Official Receiver is an officer of the court to which he is attached. The OR is therefore answerable to the courts for carrying out the courts' orders and for fulfilling his duties under law...

 or Trustee in Bankruptcy
Trustee in bankruptcy
A trustee in bankruptcy is an entity, often an individual, in charge of administering a bankruptcy estate.- United States :In the United States, a Trustee in Bankruptcy is a person who is appointed by the United States Department of Justice or by the creditors involved in a bankruptcy case.In a...

. However, it is open to the Receiver or Trustee to refuse to accept that property by disclaiming
Disclaimer
A disclaimer is generally any statement intended to specify or delimit the scope of rights and obligations that may be exercised and enforced by parties in a legally recognized relationship...

 it. It is relatively common for a trustee in bankruptcy to disclaim freehold property which may give rise to a liability, for example the common parts of a block of flats owned by the bankrupt would ordinarily pass to the trustee to be realised in order to pay his debts, but the property may give the landlord an obligation to spend money for the benefit of lesees of the flats
Apartment
An apartment or flat is a self-contained housing unit that occupies only part of a building...

. The bankruptcy of the original owner means that the freehold is no longer the bankrupt's legal property, and the disclaimer destroys the freehold estate
Estate (law)
An estate is the net worth of a person at any point in time. It is the sum of a person's assets - legal rights, interests and entitlements to property of any kind - less all liabilities at that time. The issue is of special legal significance on a question of bankruptcy and death of the person...

, so that the land ceases to be owned by anyone and effectively escheats to become land held by the Crown in demesne
Demesne
In the feudal system the demesne was all the land, not necessarily all contiguous to the manor house, which was retained by a lord of the manor for his own use and support, under his own management, as distinguished from land sub-enfeoffed by him to others as sub-tenants...

. This situation affects a few hundred properties each year.

Although such escheated property is owned by the Crown, it is not part of the Crown Estate
Crown Estate
In the United Kingdom, the Crown Estate is a property portfolio owned by the Crown. Although still belonging to the monarch and inherent with the accession of the throne, it is no longer the private property of the reigning monarch and cannot be sold by him/her, nor do the revenues from it belong...

, unless the Crown (through the Crown Estate Commissioners) 'completes' the escheat, by taking steps to exert rights as owner.

However, usually, in the example given above, the tenants of the flats, or their mortgagees would exercise their rights given by the Insolvency Act 1986
Insolvency Act 1986
The Insolvency Act 1986 is an Act of the Parliament of the United Kingdom that provides the legal platform for all matters relating to personal and corporate insolvency in the UK.-History:...

 to have the freehold property transferred to them. This is the main difference between escheat and bona vacantia, as in the latter, a grant takes place automatically, with no need to 'complete' the transaction.

One consequence of the Land Registration Act 1925
Land Registration Act 1925
The Land Registration Act 1925 was a act of Parliament in the United Kingdom that codified and extended the system of land registration in England and Wales...

 was that only estates in land (freehold or leasehold) could be registered. Land held directly by the Crown, known as property in the "royal demesne
Demesne
In the feudal system the demesne was all the land, not necessarily all contiguous to the manor house, which was retained by a lord of the manor for his own use and support, under his own management, as distinguished from land sub-enfeoffed by him to others as sub-tenants...

", is not held under any vestigial feudal tenure (the crown has no historical overlord other than, for brief periods, the papacy) and there is therefore no estate to register. This had the consequence that freeholds which escheated to the Crown ceased to be registrable. This created a slow drain of property out of registration, amounting to some hundreds of freehold titles in each year.

The problem was noted by the Law Commission
Law Commission
A Law Commission or Law Reform Commission is an independent body set up by a government to conduct law reform; that is, to consider the state of laws in a jurisdiction and make recommendations or proposals for legal changes or restructuring...

 in their report "Land Registration for the Twenty-First Century". The Land Registration Act 2002
Land Registration Act 2002
The Land Registration Act 2002 is an Act of the Parliament of the United Kingdom which repealed and replaced previous legislation governing land registration, in particular the Land Registration Act 1925, which governed an earlier, though similar, system...

 was passed in response to that report. It provides that land held in demesne by the Crown may be registered.

See also

  • Quia Emptores
    Quia Emptores
    Quia Emptores of 1290 was a statute passed by Edward I of England that prevented tenants from alienating their lands to others by subinfeudation, instead requiring all tenants wishing to alienate their land to do so by substitution...

  • History of the English fiscal system
    History of the English fiscal system
    The history of the English fiscal system affords the best known example of continuous financial development in terms of both institutions and methods. Although periods of great upheaval occurred from the time of the Norman Conquest to the beginning of the 20th century, the line of connection is...

  • Container deposit legislation
    Container deposit legislation
    Container-deposit legislation is any law that requires collection of a monetary deposit on soft-drink, juice, milk, water, alcoholic-beverage, and/or other containers at the point of sale...

  • Breakage

Sources

  • S.T. Gibson, "The Escheatries, 1327-1341", English Historical Review, 36(1921).
  • John Bean, The Decline of English Feudalism, 1215-1540, 1968.
The source of this article is wikipedia, the free encyclopedia.  The text of this article is licensed under the GFDL.
 
x
OK