There is a lot of magic and ritual in the history of law, and in real estate some of this magic is particularly charming. Below, we outline one of the most important rituals of real estate practiced in medieval Europe, and how it evolved (and is continuing to evolve) in modern real estate law.
Today, real estate largely functions on the idea of the written word: for something to be legally effected, you need an “instrument”—a written, performative document. Often the document and the thing it creates are treated as one and the same (for example, in the case of trusts.)
Despite the various important transfers of land to knights, lords, bishops, and so on during the medieval period in England, we have very few documents about the transfer of land in the medieval period. The practice of keeping written records of land transfer (“charters”) seems to have started with religious bodies and slowly caught on among lay lords starting in the 12th century.
This is because the early conception of land ownership in Anglo-Saxon England was a manual transfer—it was an embodied practice or act (a “deed”). This transfer was called the livery of seisin (or literally, the “transfer of seizure/possession”). There were two ways to perform the transfer: livery of deed or livery of law.
Quite literally, the transfer of land often required one party to “hand” the land over to the other—the livery of deed was performed through a “turf and twig” ceremony whereby a clump of dirt or twigs was cut from the parcel and handed over to the recipient in a symbolic gesture. In the livery of law, the two parties must stand within sight of the land and the transferring party must verbally declare his intention to transfer the property to the recipient, and then the recipient physically steps onto the land. In practice, both rituals seem to have often been performed together, and with these “deeds” performed, the land was magically—legally—transferred to the new owner.
Similar feudal rituals seem to have existed throughout northern Europe following the fall of the Roman Empire, and this practice remained a legal means of conveyance in England until 1677 (Kaye 2009). However, by the early 1500s, under Henry VIII, the English common law practices of conveyance began to shift toward written instruments that would enact (and prove) a transfer of land ownership (Gose 2008).
This is why in modern real estate practice we transfer land with a written “deed”: the written document contains the words of grant that act just like the verb declaration of the livery of law, and the deed is not legally enacted until the signed deed is handed to (or at least, in the hands of) the new owner, with the material paper replacing the clump of earth. The magic of real estate has been passed from physical acts and utterances to the power of writing.
Even after the acts of reform required a written instrument, however, these rituals persisted into the 18th century in both England and colonial America. As John A. Gose argued in 2008, we are seeing a similar transition today: the digital age is radically changing communication and security, and this has significant implications for the practices of law and real estate. A digital signature is actually more secure from fraud than an ink signature, and yet the law has been very slow to adopt digital files or signatures as legally binding. Just like the English and early Americans of the 17th and 18th century kept one foot in the magic of embodied conveyance, today we are still half-beholden to the magic of ink on paper. That is why while much of the documents in a real estate transaction are now electronic, we still close on paper, sign in person in front of a notary, and hand over a physical deed. These paper relics are unlikely to last much longer, and the coronavirus pandemic may just be the final push tipping real estate law into this new reality. (For more on deeds and real estate transfer, see our previous posts “Real Estate Transactions: Basic Terms” and “Real Estate Transactions: 3 Stages of a Transaction.”)