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Critical Thomisim

Critical Thomisim

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Published by: enemesio on Oct 18, 2011
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04/16/2014

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The Lease as an Equitable Use

By

Anthony J. Fejfar, B.A., J.D., Esq., Coif

© Copyright 2007 by Anthony J. Fejfar

The origins of the modern lease are obscure. Historians have argued that the lease was

originally a vehicle used by usurious money lenders in medieval England to avoid the ecclesiastical and

equitable prohibition against usury, that is, lending money at interest.

Instead of a loan with interest, the lender would become the tenant of a noble with land, and

lease the land from the landlord noble for less than fair market value as a way of collecting interest.

The rent was in essence the loaned money, and the discount to the tenant lender was the equivalent of

interest.

It is said that because the earliest tenants were really usurious lenders, that the equity courts

would not intervene to protect tenants rights. Instead, the tenant’s estate was considered to be a non-

freehold interest which was governed by common law property law in the law courts.

Soon, however, the lease was transformed from the lender tenant situation to what we normally

expect, that is, a lease from a financially successful landlord to a tenant with little money. One would

expect that equity would intervene to help the poor tenant, but because of the usurious origins of the

lease, equity did not.

It is time that the medieval rule governing leases should change. The tenant should be seen as

receiving an equitable estate or equitable use from the landlord so that equity courts can intervene on

behalf of tenants against the more powerful landlords.

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