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.

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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.

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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).

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