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The Equitable Use and Landlord Tenant Law

A Tract Book Essay

By

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

© Copyright 2007 by Anthony J. Fejfar

An Equitable Use is an equitable possessory interest which is

enforceable in Equity and not at law. An equitable use is only enforceable at

law by reason of the Statute of Uses as a legal use.

Law courts have legal rules which begin conceptual with legal

rights, Equity courts have equitable rules which begin with the concept of

need. Equity favors the one in need. Equity favors the poor, the elderly,

incompetents, and minors. Equity begins with the pagan philosophy of

Aristotle and then matures in the church Equity courts of the late medieval

period, especially in England.

An Equitable use gives a person the equitable right of owning

property and contracting in Equity. Since all courts of general jurisdiction

have both law and equity jurisdiction, and equitable use can be enforced in a

trial court such as a District Court or a Common Pleas Court, and on appeal.

1
By reason of Natural Law, every Court of General Jurisdiction has Equity

jurisdiction and can grant equitable relief.

Since an Equitable use in a car, for example is enforceable in Equity,

it is true that a person who steals a car owned by Equitable use can be

criminally prosecuted for stealing equitable property. Similarly, one can

hold an equitable use in personal property such as a copyright, and an

infringement of that right in equity constitutes both a civil and criminal

offense. Minors and incompetents can hold and own property as an

equitable use.

Additionally, it should be noted that a minor or incompetent can

own property in equity even in the absence of an equitable use. Common

Stock, for example is an equitable interest, and thus a minor or incompetent

can own Common Stock in a Corporation in his or her own name.

To form an Equitable use one must have a bare Legal title at law

vested in another person, whether alive or a corporation. In theory, there is

nothing to prevent an incompetent from forming a closely held corporation

and owning the corporation through equity Common Stock shares and then

having the bare Legal title at law of the incompetent conveyed to the closely

held Corporation.

2
Bare Legal title at law subject to an Equitable use is analogous in

some ways to the landlord tenant relationship. Recall that in a landlord

tenant relationship the land lord holds bare legal title at law subject to the

tenant’s possessory interest in Equity. The only reason that tenant was not

given more protection in Equity courts was that in the medieval system

economics favored tenants as the dominant party rather than landlords.

Similar to the landlord tenant relationship, the holder of a bare

Legal title at law is subject to the possessory interest in equity of the holder

of the Equitable use. Just as a tenant can assisgn or sublease a possessory

interest in a tenancy, so too can the holder of an equitable use sell, gift, or

dispose of in any way he or she wants the property held in and as an

equitable use, without the interference of the bare Legal title holder at law.

The only right and duty of a bare legal title holder at law is to defend that

bare legal Title at law against third parties, and to defend the equitable use

against third parties.

For the most helpful discussion of the Equitable use and the Statute

of Uses, see, Moynihan and Kurtz, Introduction to the Law of Real

Property (2002).