In one of my Austen-inspired pieces, I use a legal property term referred to as Lease and Release. The legal definition of Lease and Release says, it is a species of conveyance, invented by Serjeant Moore, soon after the enactment of the Statue of Uses. It is thus contrived; a lease, or rather bargain and sale, upon some pecuniary consideration, for one year, is made by the tenant of the freehold to the lessee or bargainee. This without any enrollment, makes the bargainer stand seised to the use of the barginee, and vests in the bargainee the use of the term for one year, and then the statue immediately annexes the possession. Being this in possess, he is capable of receiving a release of the freehold and reversion, which must be made to the tenant in possession; and, accordingly, the next day a release is granted to him.”
If I lost you, with all the legalese, bear with me for a few moments more. First the Serjeant Moore mentioned in this definition is Sir Francis Moore, a prominent Jacobean barrister and Member of Parliament. In parliament he was a frequent speaker, and is supposed to have drawn the well-known statute of Charitable Uses which was passed in 1601. The conveyance known as lease and release was his invention which remains one of two main ways to extend a lease, each with financial and physical demise advantages and disadvantages. [Goodwin, Gordon (1894). “Moore, Francis (1558-1621)”. In Sidney, Lee. Dictionary of National Biography. 38. London, Smith, Elder & Co.]
For Lease and Release to work, two agreements were required. First, a bargain (sale) contract was executed by the seller to convey a lease on the land… (Unlike an outright sale, short leases did not require enrollment in a public registry.) The seller then separately executed a release to grant to the buyer (who was now his tenant) the seller’s remaining interest. [This transfers] title to the buyer, since he now owned both the current and future interests in the land. [“A Bit of Deed History,” Bob’s Genealogy Filing Cabinet]
In writing this story, I took some dramatic license by making a property in Cornwall on the Rame Peninsula available to the Bennets, after Mr. Bennet’s unexpected death. I set up the terms of the property as a combination of lease and release (with no option to purchase the land, for, obviously, the Bennets could not afford it) and a leasehold, which customarily involves the owner of the property “leasing” it to a potential buyer for a period of time, generally 99 years in the western shires of England, during the early 1800s, but only 21 in the eastern shires.
Book Blurb for Where There’s a Fitzwilliam Darcy, There’s a Way
ELIZABETH BENNET’s world has turned upon its head. Not only is her family about to be banished to the hedgerows after her father’s sudden death, but Mr. Darcy has appeared upon Longbourn’s threshold, not to renew his proposal, as she first feared, but, rather, to serve as Mr. Collins’s agent in taking an accounting of Longbourn’s “treasures” before her father’s cousin steals away all her memories of the place.
FITZWILLIAM DARCY certainly has no desire to encounter Elizabeth Bennet again so soon after her mordant refusal of his hand in marriage, but when his aunt, Lady Catherine de Bourgh, strikes a bargain in which her ladyship agrees to provide his Cousin Anne a London Season if Darcy will become Mr. Collins’s agent in Hertfordshire, Darcy accepts in hopes he can convince Miss Elizabeth to think better of him than she, obviously, does. Yet, how can he persuade the woman to recognize his inherent sense of honor, when his inventory of Longbourn’s entailed land and real properties announces the date she and her family will be homeless?
Permit Mr. Darcy, in an excerpt from Chapter 11, to explain it to you as he did to the three eldest Bennet sisters and Mr. Gardiner in Where There’s a FitzWILLiam Darcy, There’s a Way:
Their days became routine. There was no more talk of her experiencing the presence of Mr. Bennet during her quiet hours, nor of what plans she had made for her future. Instead, they spoke of favorite books and music. They shared tales of their childhood days. Often other members of her family joined them, adding their versions of what were now, for him, familiar tales. They had completed her father’s study and library, the essentials in the dining room, and two small cupboards, where brooms and such were stored. Unfortunately, they had yet to discover another clue, which by all appearances, played havoc with Elizabeth’s disposition.
Therefore, he had been elated when he received the letter from Mr. Tapapses, who had been approached by Darcy’s agent in Devon. It turned out Eugenia Gardiner’s property was located near the twin villages of Kingsand and Caswand on the border between Cornwall and Devon, near Rame Head.
“You wished to speak to me, Mr. Darcy?” Gardiner asked when Mrs. Hill had shown Darcy into Mr. Bennet’s former study. Elizabeth’s uncle was to survey her father’s legal papers and ledgers for clues to the man’s will.
“I did, sir.” Darcy glanced about the room. It had been polished properly for Mr. Collins’s eventual arrival. Gardiner gestured to a nearby chair. When Darcy was settled, he launched into the business he had with the gentleman. “When I discovered the piece on your great-grandmother’s bequest, I took the liberty of making some inquiries.”
Mr. Gardiner’s eyebrows lifted in surprise. “Is Elizabeth aware of your doing so?”
“We discussed my offer. Miss Elizabeth did not wish to impose on me, but Miss Mary thought my doing so a fine idea. As no one forbid me to act, I chose to proceed.”
“You realize, of course, Lizzy will chastise you properly,” Gardiner said with a sly grin.
“It will not be the first time,” Darcy admitted.
Gardiner folded his hands together and rested them on the desk. “Your remark to the effect that she was only tolerable and not tempting enough for you was poorly done, sir.”
Darcy forced himself not to squirm under the man’s steady gaze. “I had been dealing with a troubling family situation and was preoccupied with my own misery, but you are correct: My actions were unforgivable. I demonstrated a lack of regard for your niece’s feelings. I did not perform as a gentleman should.”
“I am certain, with Elizabeth’s nature, she has seized upon the opportunity to speak to your insensitivity. I shan’t reprimand you further,” Gardiner assured. “Instead, speak to me of what you have discovered.”
Darcy reached into his pocket to remove Mr. Tapapses’s letter. “I wrote to contacts I hold in Cornwall. That was a little over a week past. This morning an express brought me this response.” He handed Gardiner the letter.
“How did you know to whom to write?” Gardiner questioned.
“There were a series of numbers at the bottom of the page Mr. Bennet hid in the book on hunting. I held the suspicion the numbers designated points on a map or were related to the recording of a deed. Perhaps a date or the jurisdiction’s means of distinguishing one claim from another.” He would not mention the tidy sum he had offered for a quick reply.
Within the half hour, Darcy and Mr. Gardiner discussed Darcy’s findings with the Misses Bennet, Elizabeth, and Mary.
“I am accustomed to examining deeds to property,” he explained when Elizabeth asked him the same question as had her uncle. “According to my contacts, it appears Eugenia Gardiner’s transition to property owner was from parent to child, in the manner of a freehold property passing to the lawful heir; yet, in this case, the property passed upon the maternal side, from mother to daughter. I am assuming it was originally part of Mrs. Sommers’s marriage settlements, and the lady and her husband permitted it to pass to Eugenia, or Mrs. Sommers passed first, and Mr. Sommers claimed it in a tenant of the curtesy situation, and then it passed to Eugenia upon his death. However, it does not matter how the property came into Eugenia’s possession, but, rather, if you have any claims to it.”
“It was very fortunate you thought the numbers at the bottom of the page were significant to the search.” Miss Bennet continued to study the letter.
“In truth, I was not certain whether they indicated the collection of taxes, church tithes, the hearth tax, or land tax assessments,” he admitted. “All have been known to be used to identify property claims. It turns out the numbers indicate markings related to turnpike maps. The property has been properly registered by law with a Clerk of Peace in the appropriate shire. It was originally recorded in Chancery on Close Rolls.”
“Close Rolls?” Miss Mary questioned.
He explained, “Close rolls are grants of land by the Crown to private individuals. In the 1300s, a large number of deeds between private citizens were enrolled on the payment of fees on the back of Close Rolls. The practice continued to the beginning of the last century, which would make sense in the disposition of the land given to the late Mrs. Gardiner. I am not certain how the property came to the late Mrs. Gardiner’s mother, but, after the 1730s, it became a popular practice to transfer properties once on Close Rolls to others to be used for charitable purposes. Many were converted to schools or burial grounds or some such purpose.”
“So this property could be one of these charitable ones?” Miss Elizabeth asked.
Darcy reminded her, “I cannot speak with assurance until I read the latest registration addressing the land’s use.” He spoke directly to the woman he loved. It was important to him for her to understand that Eugenia Gardiner’s property would not resolve all of her family’s problems. “It appears whoever set up the property’s use employed some form of a Lease and Release option.”
Her uncle explained, “With every exchange of property between individuals there is a legal obligation for the deed to be recorded, but this requirement can be evaded by granting a lease for a year on the land meant to be sold, thus avoiding the need to enroll, and then, a few days later, presenting the lessee the right of future possession of the land by a reversion of the lease. However, this property is unique, for although the lease and release is in effect, the person taking possession of the property is not purchasing it, but rather is leasing it for a specific time period. In truth, I would think this a challengeable condition, but as it has been effect, without complaints, for three generations, it could prove a precedence if a court case would be brought against Eugenia’s estate. Surely if the property was not so remote, someone would have brought it to the attention of the authorities before now. Then again, the property is not available to just anyone who wishes to lease, but rather only to Eugenia’s relations, and that may be the clause that protects it.”
Darcy was quick to add, “England has no standard means of recording deeds. Even within a shire the method differs. Various forms of tax records and church tithes are customarily used. I know the property was originally deeded to your great-great-grandmother. I am assuming it is still in her name, and the use of the land is still at her disposal. I imagine when we view her actual will, it will say something to the effect that the land cannot be sold until a certain year far in the future.”
“What Mr. Darcy says makes sense,” Gardiner affirmed. “The property is under the control of Eugenia Gardiner’s trust and controlled by the firm she employed some eighty years removed., one similar to the firm we recently employed to oversee your family’s incomes. The trust would be responsible for any disputes to the validity of our claim, and although I do not expect any, you must be made aware of this possibility.”
“This particular property,” Darcy continued, “employs what could only be termed as a modified lease for three lives, which is a practice popular in the west of England, and it does not surprise me to view it being used here. However, the modification comes in the form of the number of years one family can have use of the lease. Customarily, in England’s western shires, such a lease is good for ninety-nine years, but this one ends after twenty-one years, which is a practice generally found in land documents in the east of England. I suspect the use of ‘twenty-one‘ is employed as a means of permitting a family to know the house’s use and then move on, likely with the females marrying or passing away. That being said, there is a point of legal stability in that at the end of the twenty-one years, the terms may be cancelled, or there can be a change of terms or a simple renewal for an additional twenty-one years.”
“Then the lease would be made out in my name, along with Jane’s and Mary’s, as we are the three oldest and would be the ‘three lives’ you say are required for our acceptance of the lease. Am I understanding this correctly?” Elizabeth asked. She appeared quite pale, and so Darcy reached beneath the table to squeeze the back of her hand, and she rewarded him with a tremulous smile. Reality of what she meant to do to protect her family had, apparently, caught up to her.
“Names of your younger sisters may be added to the lease on the payment of a fee,” Mr. Gardiner told his nieces. “We can decide what is best in that manner if this proves to be how we wish to proceed.”
“The terms appear more reasonable than I first thought,” Miss Bennet observed.
“Except the stipulation that if one of the younger sisters marries before the elders, then the lease will be terminated immediately and without redress,” Miss Mary voiced her obvious concerns. Her plans not to marry would keep Miss Kitty and Miss Lydia from doing so. The girl would need to rethink her future.
“Such terms might force Mrs. Bennet into having second thoughts on permitting Kitty and Lydia so much freedom,” Mr. Gardiner remarked.
Darcy was glad there was, at least, temporary hope of salvation for Elizabeth’s family, but the terms of the agreement presented him an answer his heart openly rejected. Miss Elizabeth would never accept him until Miss Bennet married, and Miss Mary reached her majority.
Miss Bennet, with her customarily quiet acceptance, said, “As long as Lydia and Kitty can be brought in line, we could name our home for the immediate future. Mayhap, by then, one of us three, or all of us, will be in a position to see to our mother’s future.”
Miss Elizabeth added, “I suppose we should explain what Mr. Darcy has uncovered to our mother and sisters. We should set plans to remove to Cornwall as quickly as one of our uncles can approach those who oversee the Gardiner property.”
Another wonderful excerpt and some interesting facts. I am all the more intrigued. Congratulations Regina !
Glad you liked it, Becky.
What an interesting premise. I look forward to discovering how this change of scenery changes the story.
It is a premise I had not expected when I set out to write this story.
I already have your book Regina, and just wanted to say once again how much I enjoyed reading. Your research was awesome and really caught my attention. I loved how you wove the plot and the love story around the securing of the will. Wonderful read.
Thank you, Jen. It is not the book I originally planned to write, but one must follow the characters’ whims.
I’m not sure I completely understand the law but the explanation of the consequences for the Bennet family is quite clear. I look forward to reading the rest
My Beta readers asked for a more specific explanation, which lengthened the conversation, but proved necessary, Lynn.
Thank you Regina. I must admit that the first part of this post had me completely baffled but your explanation definitely helped.
I’m so pleased that Mrs Bennet has finally realised the error of her ways with spoiling Lydia and is determined to rectify it.
What a hero Darcy is, telling them all this even knowing it would delay his marriage to Elizabeth even if she accepts. Hopefully they can find a way round this law?
A way around the law is not always possible, but there are other means to an end, Glynis.
This is my second reading (the first was at More Agreeable Engaged) of your fascinating historical post and delightful excerpt, Regina. I find my understanding on the topic has improved. I wish you the very best in your latest release. And thanks for offering the giveaways.
I wish you luck in the drawing Sylvia. Random.org does the deed.
Thanks for clarifying Regina. got lost about the Lease and release. With the excerpt of the story it made it clearer. Truly historical fiction.
It is great that you call it historical fiction, but historical fiction writers consider me a “romance” writer. I believe I write both. LOL!
Definitely an interesting background for your new novel, Regina. Thanks for the giveaway and for the many hours of research that must have gone on during the writing of this story.
I am attempting to become more literate in property law, Anji.