LEASE AND RELEASE - The Law Mind Legal Dictionary

LEASE AND RELEASEAuthored

The Law Mind • 935 words

Definition

A method of conveying freehold land that operated in two steps, joined in practice into a single transaction. First, a bargain and sale (styled as a lease) transferred a leasehold interest — typically for one year — to the intended purchaser, who thereby entered into possession of the land. This entry into possession gave the purchaser the standing in law that a release required. Second, a release was then executed, conveying the freehold estate outright to the now-possessing purchaser. The combined effect transferred full title. Though theoretically two instruments, they were commonly executed together and functioned as one conveyance.

The device was invented, according to the historical dictionaries, by Serjeant Moore shortly after passage of the Statute of Uses (1536) and was designed to circumvent the Statute of Enrollments (27 Hen. VIII, c. 16), which required bargains and sales of freehold estates to be enrolled in public record. Because the initial instrument conveyed only a one-year leasehold — not a freehold estate — enrollment was not required. The statute's reach did not extend to leaseholds, so the first step escaped the enrollment requirement entirely. The release in the second step then did the real conveyancing work, passing the freehold quietly and without public record.

The method fell into disuse in England following the Real Property Act of 1845, which simplified conveyancing and eliminated the practical need for this workaround. By that point, lease and release had been the dominant method of conveying freehold land in England for approximately three centuries.

Common Confusion

Researchers sometimes confuse lease and release with the modern legal release — the instrument by which a party surrenders a claim, right, or interest. These are entirely distinct instruments. The release in lease and release is a conveyancing deed that passes a freehold estate; it is not a waiver or discharge of a claim. See the RELATED TERMS section and encyclopedia cross-references for modern release instruments.

Why It Matters in Research

This is primarily a historical conveyancing term. Researchers working with English land records, property chain-of-title documents, or English legal treatises from the sixteenth through nineteenth centuries will encounter it frequently. It is largely absent from American law as a functioning doctrine, though it appears in early American colonial and post-colonial conveyancing practice where English forms were followed.

The critical trap is anachronism: applying the modern meaning of "lease" (a possessory rental agreement) or "release" (surrender of a claim) to what is, in context, a unified conveyancing mechanism. Neither component of lease and release meant what those words mean in contemporary usage.

A second trap involves completeness. Early record collections may preserve only one instrument — the lease or the release — without the companion deed. A lease for one year dated, say, one day before a release in the same file is not a coincidence; it is the first step of a lease-and-release transaction. Researchers who find one without the other should look immediately for the companion instrument.

The device's statutory genealogy matters for research: it cannot be understood without reference to the Statute of Uses and the Statute of Enrollments. Any treatise or encyclopedia entry dealing with either statute will likely discuss lease and release as a direct consequence.

American jurisdictions that followed English common law forms prior to their own conveyancing reform statutes may have records employing this method. Researchers in early Virginia, Maryland, and other colonies with strong English legal inheritance should be alert to it.

Historical Dictionary Support

The four source dictionaries are in close agreement on mechanism and origin. Black's, Bouvier's, and Burrill's all attribute the invention to Serjeant Moore and connect the device directly to the Statute of Uses. Rapalje & Lawrence adds the specific parliamentary citation (27 Hen. VIII, c. 16) and the date of practical obsolescence (1841, corresponding to the Real Property Act of 1845 which took effect after earlier preliminary legislation). Burrill's characterizes it as "now the most common method in England, of conveying freehold estates" — a description that reflects the state of law at the time of composition but is no longer accurate.

None of the historical dictionaries fully explores the American dimension. Bouvier's, notably, includes in its entry material about receivers and leasehold interests that appears to be a splice from a different topic — a known artifact of Bouvier's organization that researchers should disregard in this context.

All sources agree that while two instruments were theoretically involved, they were practically united, often executed on consecutive days or simultaneously, with the lease dated the day before the release.

Jurisdictional Note

Lease and release is overwhelmingly an English law doctrine. In the United States, it appears in pre-Revolutionary and early Republic conveyancing records in jurisdictions that imported English forms, but American states adopted their own conveyancing statutes that made the device unnecessary. It has no operative function in any current American jurisdiction.

Encyclopedia Cross-Reference

The following encyclopedia entries address modern release instruments that share vocabulary but not function with the release component of this term:
— Discharge -- Release and Covenant Not to Sue (The Law Mind Contracts & Commercial Law Encyclopedia)
— Specialized Contracts -- Settlement Agreements and Releases (The Law Mind Contracts & Commercial Law Encyclopedia)
— Severance Agreements, Releases, and Settlement of Claims (The Law Mind Employment & Labor Law Encyclopedia)

LEASE AND RELEASEmain

Black's Law Dictionary • 1891

A species of conveyance much used in England, said to have been invented by Serjeant Moore, soon after the enactment of the statute of It is thus contrived: A lease, or uses. rather bargain and sale upon some pecuniary consideration for one year, is made by the tenant of the freehold to the lessee or bar- gainee. This, without any enrolment, makes the bargainor stand seised to the use of the bargainee, and vests in the bargainee the uso of the term for one year, and then the statute

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Rapalje & Lawrence • 1883

- A mode of conveying freehold land which was in common use, in England, down to the year 1841. It was invented to evade the Act 27 Hen. VIII. c. 16, passed to prevent land from being conveyed secretly by bargain and sale. The act only required bargains and sales of estates of inheritance or freehold to be enrolled, and therefore it soon became the practice on a sale of land for the vendor to execute a lease to the purchaser to an action in trespass setting up the consent of Swanst. 201. LEAVE AND LICENSE.-A defense the plaintiff to the trespass complained of. LEAVE LAWFUL ISSUE, (in a will). 10 Ves. 562, 569. for a year, by way of bargain and sale, which, under the Statute of Uses, gave him seisin of the land without entry or enrollment, and then the vendor released his reversion to the purchaser by ordinary deed of grant, thus vesting in him the fee-simple in possession without entry or livery of seisin. In 1841, a release was made effectual without the preliminary lease for a obtained from a court to take some action year, and, in 1845, a deed of grant was made which, without such permission, would Sufficient for the convevance of all corporeal not be allowable. heredicaments. (Wms. Real Prop. 180; Wins. Seis. 146.) Conveyance by a release following on an ordinary lease perfected by entry is said to have been formerly employed. 1 Steph. Com. 527. See BARGAIN AND SALE, & 2; CONVEYANCE, 7, 8; GRANT, § 2. LEASE AT WILL, (sufficient to gain a settlement). 1 Str. 502. LEASE, DEMISE, AND LET, (in a lease). 109 LEASE FOR LIFE, (must be by deed). 14 Ves. Mass. 235. 156. LEASE FOR YEARS, (what constitutes). 1 McLean (U. S.) 454; 14 Pet. (U. S.) 526; Bac. Abr. tit. Leases. LEASE IN PRÆSENTI, (defined). 2 W. BỊ. 973. LEASE IN REVERSION, (defined). Com. 39. LEASE, PAROL, (for over three years, effect of. 13 Wend. (N. Y.) 483; 1 Saund. 276 п. (an action of assumpsit will lie upon). 1 Saund. 322 п. LEASED TERM, (in a covenant). 2 Barn. & C. 216. LEASEHOLD ESTATE, (in a will). 9 East 369. VOL. II.

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Bouvier's Law Dictionary • 1928

Rep. 700. It is well settled that a receiver may take and retain possession of leasehold interests for such period as will enable him to elect intelligently whether it is best to adopt the lease or return the property; 74 Fed. Rep. 91; 143 U. S. 3831; 115 id. 82; 150 id. 287; 58 Fed. Rep. 257, 268; and he is not required to pay rental for a depot prop erty as stipulated by the railway company, and is liable only for a reasonable rental if he occupies the property; 74 Fed. Rep. 88; 145 U. S. 82. He takes possession of lease- hold property and holds for the court; id. The appointment of a receiver is not an eviction of a lessee; 8 Biss. 456. As to the relative liability of the lessor and lessee for injuries committed in the operation of the road, the following rules have been laid down in a recent work on the law of railroads: 1. The lessee is liable for all injuries resulting from the negligent operation of the road. 2. Where the lease is void the liability of the lessor continues. 3. Where the lease is valid, some authorities hold that the lessor is relieved from liability for injuries resulting from the negligent operation of the road; 86 Va. 629; 14 Ore. 486; 63 Tex. 549; 14 S. W. Rep. (Ky.) 346. But the last rule ad- mits of serious question, unless the lease contains a specific provision for the lessor's exemption from liability; 70 Ga. 464; 119 IlL 68; 26 Neb. 159; 145 Mass. 64. Some of the cases hold that the lessor cannot be re- lieved from liability unless there is express authority in the statute; 57 Fed. Rep. 165; 21 Am. & Eng. R. Cas. 226; 25 id. 497; 119 Ill. 68; 26 Neb. 159. See also Wood, Rail- roads 2054. In 80 Me. 62, the rule was thus laid down: "An unauthorized lease with- out any exemption clause absolves the lessor from the torts of the lessee resulting from negligence in the general manage- ment of the leased road over which the lessor could have no control. But for an injury resulting from the negligent omis- sion of some duty owing to the public, such as the proper construction of its road, sta- tion-houses, etc., the charter company can- not, in the absence of statutory exemption, discharge itself of legal responsibility," and a covenant in the lease to save the lessor harmless does not affect the case. The lessee is liable whether the lease is valid or invalid; 49 Am. & Eng. R. Cas. 603. But it has been held that though the lease is void, a servant of the lessee company cannot re- cover against the lessor company for in- juries sustained in the operation of the road; 72 Fed. Rep. 745; 80 N. Y. 27; 72 Tex. 375; 88 Tenn. 310. While the lessor may be liable to a party injured by the negligence of its lessee's servants, the lessee is also liable; 35 Am. & Eng. R. Cas. 440. In some states statutes provide for the joint and several liability of both lessor and lessee; 43 Ind. 354; 36 Ia. 327; 46 Me. 95; 145 Mass. 64: 27 Mo. App. 394. See Patterson, Railw. Acc. Law § 1301, which lays down the rule that where the lease is valid, the lessor is not liable for the lessee's torts in the operation of the road. See REVERSIONARY LEASE; SUB-LEASE.

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