Lease and Release… Colonial Sneakery
Lease and Release was a very common legal method used in Virginia (and other English colonies) to transfer property ownership in the 1700s, especially in the first half of the 18th century. It was a clever workaround to get around strict English common-law rules that made direct land sales difficult and expensive.
Why They Used “Lease and Release” Instead of a Simple Deed. In England (and thus Virginia), the Statute of Enrollments (1535) required that any transfer of freehold land (most real property) had to be made by a formal deed and enrolled (publicly registered) in a court or registry. This was costly, public, and slow.To avoid these requirements, lawyers developed the lease and release method, which did not require enrollment because it technically involved two separate steps — a temporary lease followed by a release of the right of possession — rather than a direct sale.How Lease and Release Worked (Step by Step) – circa 1700s Virginia.
- Step 1: The Lease
- The seller (called the “lessor”) executed a lease (indenture of lease) to the buyer (the “lessee”).
- The lease was usually for one year (sometimes 99 years or another short term).
- Consideration (payment) was typically a nominal sum — e.g., 5 shillings or 1 peppercorn.
- This lease gave the buyer possession of the land for that year, but not full legal title (ownership).
- Because it was a lease (not a sale of freehold), it did not need to be enrolled.
- Step 2: The Release
- The very next day (or sometimes the same day, depending on the county), the seller executed a release (indenture of release).
- In the release, the seller “released” (gave up forever) his right of reversion and any other claim to the land.
- The buyer now had both possession (from the lease) and title (from the release).
- The release also did not require enrollment because it was technically not a conveyance of freehold — it was a release of a right.
- Result
- After the two documents were executed and delivered, the buyer had complete fee simple title (full ownership) without ever having enrolled a deed.
- The two indentures (lease + release) were usually recorded together in the county deed book as a single transaction.
- Typical Language in Virginia Deeds (circa 1730)You’ll often see phrases like:
- “This Indenture made the first day of May… between A.B. of the one part and C.D. of the other part… Witnesseth that the said A.B. for and in consideration of five shillings… doth demise, grant and to farm let unto the said C.D. all that tract… for the term of one whole year…”
- Followed the next day by: “This Indenture made the second day of May… Witnesseth that the said A.B. for and in consideration of the sum of [large amount, e.g., £50]… doth remise, release, and forever quit claim unto the said C.D. all the right, title, interest…”
Why It Was So Popular in Virginia
- Cheap and private (no enrollment fee or public notice required).
- Avoided the Statute of Uses and other English legal traps.
- Widely accepted by Virginia courts — clerks routinely recorded both parts as one transaction.
- Used for almost every land transfer in Virginia from the late 1600s through the mid-1700s (and even into the early 1800s in some counties).
End of Lease and Release
- Virginia finally abolished the practice by statute in 1849 (Code of Virginia 1849, ch. 116, § 1), requiring direct deeds of bargain and sale with enrollment.
- So in summary: Lease and release was the standard, clever, two-step workaround that let Virginians transfer land quietly and cheaply from ~1650 to ~1849. Almost every deed you see in Surry, Isle of Wight, Prince George, or other Tidewater counties from the 1700s that says “lease for one year” followed by “release” the next day is using this method. …in other words, those sneaky, rabble rousing Colonists did not much care for legalese bee ess.
Leave a Reply