Legal Definitions - Mortmain

Mortmain refers to a historical legal concept concerning land or property held by an organization, such as a church, charity, or corporation, that possesses a perpetual existence. The term literally translates from French as "dead hand." It describes a situation where property is transferred to such an entity, effectively removing it from the open market indefinitely because the organization, unlike an individual, does not die and therefore does not typically pass on property through inheritance or regular sale.

Historically, laws against mortmain aimed to prevent too much land from being tied up permanently by these "dead hands," as it was believed to hinder economic activity and the free transferability of property, which is generally favored by public policy.

• Example 1: A Perpetual Nature Preserve

  A wealthy environmentalist donates a vast tract of pristine wilderness to a newly established charitable foundation, with the explicit condition in the deed that the land must forever remain a nature preserve and can never be sold or developed. The foundation, designed to exist in perpetuity, accepts these terms.

  How it illustrates Mortmain: Here, the land is held in mortmain by the charitable foundation. Because the foundation has a perpetual existence and the land is legally restricted from being sold, it is effectively removed from the real estate market indefinitely, held by the "dead hand" of the organization.

• Example 2: University Endowment Property

  An alumnus bequeaths a historic mansion and its extensive grounds to a university, stipulating that the property must always be maintained as a museum and research center dedicated to local history, and can never be sold or repurposed for other university functions like dormitories or athletic facilities.

  How it illustrates Mortmain: The university, as a perpetual institution, holds this property in mortmain. The conditions of the gift ensure that the property remains under the university's "dead hand" indefinitely, preventing its sale or conversion, thereby locking it into a specific use and out of the general commercial market.

• Example 3: A Religious Order's Sacred Land

  A religious order, which has existed for centuries and plans to continue indefinitely, acquires a large parcel of land to establish a new monastery and spiritual retreat. The deed of transfer specifies that the land is to be held by the order in perpetuity for its sacred purposes and can never be sold or used for commercial development.

  How it illustrates Mortmain: The religious order, being a perpetual entity, holds this land in mortmain. The perpetual restriction on its sale and use means the land is permanently dedicated to the order's specific purpose, effectively removing it from the general real estate market and preventing its future alienation.