THE “DIRT” ON CLOSINGS

What is a real-estate closing? From what you may have experienced, the typical closing required the buyer and seller to meet, usually at an attorney’s office or a realtor’s office, signing “stacks” of documents whereupon the seller would hand the buyer a set of keys to the property. With the subtle transformation into a digitized commercial world, parties now exchange real property without ever meeting or without ever stepping into an attorney’s office. Today’s real estate closings include emailed closing documents, video calling, online notaries, overnight mailings and the electronic recording of deeds and mortgages. The pandemic of 2020 made electronic means ever more relevant and perhaps the only way to make a closing final.

Real-estate closings, did not always involve electronic mortgages or even house keys. So how did it happen? This article lightly touches upon that very topic.

Beginning in fourteenth century England, livery of seisin was the dominant method of conveying property. Livery, from the Latin liberare meaning to give, and seisin, from the Middle-English saysen, meaning to put into possession was a ceremony meant to officially convey property from one party to another.

As deeds were incredibly rare in medieval times, the livery of seisin ceremony would legally convey land between two parties. In fact, a conveyance was not legally binding absent the livery of seisin ceremony. In a typical livery of seisin, the seller (known as the feeoffor) and the buyer (known as the feeoffee) and witnesses would meet on or near the land to be transferred. The transferor would then state words conveying the land and yes those words involved “Ye let it be known that I giveth the land . . .”. In fact, if you peruse the deed to your own home you may notice some of these similar words such as “grant”, “grantor”, “grantee” and “convey” being vestiges from the times where livery of seisin was the method of transferring property.

As there were no keys, or deeds, or gate clickers, or garage door openers or alarm codes; the seller had to deliver an item to signify the transfer of land; hence dirt. While dirt was often delivered as part of the livery of seisin, sellers would also commonly deliver twigs, a branch or even a symbol of their house such as a ring or a cross to represent an object of the transfer. After the transfer, the seller would leave (or be ejected) from the land.
Advances in British law such as the Statute of Enrollments (creating British Land registration), Statute of Wills (permitting the transfer of property by way of will), Transfer of Uses (permitting the transfer of property by way of a contract) and Statute of Frauds (requiring all conveyances of land to be in writing) eradicated the legal effect of livery of seisin, but the psychological effect of transferring a physical object with the conveyance of property was well grounded.

Perhaps in yearning to break away from the British systems of property conveyance, colonial America quickly developed a system of deeds to make property ownership more publicly transparent. What quickly followed from this was the American system of recording deeds thus forming the basis for American property law. Today each state has its own specific set of laws with respect to the conveyance of property and recording of the deed transferring property. Yet the physical transfer of keys still represents the emotional highpoint of the closing and best encapsulates the spirit of the livery of seisin from nearly six hundred years ago, despite numerous advances in both law and technology. So the next time you attend a real estate closing, it’s okay to bring just the keys and not dirt. Now you know the dirt on the closing.