Property Week 3 - What is the doctrine of tenure? What were some of the most common tenurial duties? PDF

Preview

Summary

What is the doctrine of tenure? What were some of the most common tenurial duties? ...

Description

1. What is the doctrine of tenure? What were some of the most common tenurial duties? The doctrine of tenure is division of land based on space. According to the doctrine, all of the land ultimately belongs to the Crown, who gives it (via 'grants') to people. 

This means that no one has absolute ownership (no 'allodial' land).



The people are said to hold the land 'of' the Crown. They are 'tenants' of the crown, therefore, they are granted 'tenure'.



The doctrine creates the system of lord and tenant - the lord alienating land to a tenant (who can then alienate the land to someone else, creating a new lord and tenant relationship).

There is a mutual exchange or duties and obligations between the lord and tenant, which are the other core elements of the doctrine of tenure: 

Services - the tenant has to provide a variety of services for the lord in return for his tenure. In return, the lord provides the land, a court (manorial courts) and protection.



Incidents - the lord also had rights to incidents -

Is it correct, stricto sensu, to claim that land can be owned? Not really, when you buy land you are only really tenants of the land.

2. Outline the characteristics of the fee simple, fee tail and life estates. 

Fee simple: 

The greatest interest in land recognised by the common law. The estate continues indefinitely, regardless of the presence of heirs.



If the holder of the estate dies without making a will, the assets in the estate are to be sold by the administrator and distributed to the next of kin according to a statutory formula.



Fee tail (abolished in Australia): 

A fee tail was basically a fee simple that continues in succession so long as the land stays with specified descendants (ie, male heirs). It was created to ensure that the land did not fall upon illegitimate heirs, particularly those not from the testator’s bloodline.

 

To a certain branch of the family i.e. to Debra and the heirs of her body

Life estate: 

Is a freehold estate but it is not an estate of inheritance



A life estate was an interest in land granted to a person for life. It expired upon their death and transferred to the remainderman, who became a fee simple holder (see below for example).



A holder of a life estate can alienate his rights, but they will still expire on his death, regardless of who he alienates it to. At that point, that buyer will have to forfeit the land.

3. Explain the concept of a life estate pur sa vie and a life estate pur autre vie? A life estate pur sa vie will arise where someone owns a fee simple estate, and then grants that estate or a portion of it to another person for the duration of their life. Upon the death of the grantee, the estate usually reverts back to the original owner of the fee simple estate. For example: Conan grants a life estate to Thusla for the duration of Thulsa’s life. A life estate pur autre vie will arise where the life estate is set out to exist for the duration of a life other than that of the grantee. For example: Conan grants a life estate to Rexor for the duration of Thulsa’s life. Who is the cestui que vie? The person whose life governs the length of the life estate is referred to as the cestui que vie, meaning “he who lives.” How does the doctrine of waste apply to these estates? Waste can change the value. Three types of waste at common law How does s 9 of the Conveyancing Act 1919 (NSW) impact upon the operation of equitable waste? Under s 9 of the Conveyancing Act 1919 (NSW) a life tenant can be exempted from liability for equitable waste if the instrument conferring the life estate so delineates.

4. Provide an outline of the rule against perpetuities, including relevant legislation. How does this relate to life estates? Rule against perpetuities states that the land must be vested and cannot be a series of life estates Perpetuities Act 1984 (NSW) -s7

5. What is the legal effect of the following situations involving life estates? Consider both the common law rule against perpetuities and the Perpetuities Act 1984 (NSW) when formulating your answers.

a. Calypso has a fee simple estate and grants a life estate to James with the remainder to James’ first child to reach 21 years. Complies with both

b. Calypso has a fee simple estate and grants a life estate to James with the remainder to go to James’ first child to reach 25 years. Yes legislation no for common law approach

c. Calypso has a fee simple estate and grants a life estate to James with the remainder to go to James’ first grandchild to attain 21 years. Note that James is alive at the time of the grants, but James does not yet have any progeny. No under common law due to grandchild yes under legislation

6. What does the Latin expression cuius est solum eius est usque ad coelum et usque ad infernos mean? "whoever's is the soil, it is theirs all the way to Heaven and all the way to Hell") is a principle of property law, stating that property holders have rights not only to the plot of land itself, but also to the air above and (in the broader formulation) the ground below. The principle is often referred to in its abbreviated form as the ad coelum doctrine. Is it a valid description of the limits of a landowner’s rights? No as the introduction of technology such as air travels the law changed.

7. What is the test in Australia for determining when a chattel has become affixed to land? The degree of annexation test, which determines whether, and to what extent, the chattel has been fixed to the land. In what circumstances will this determination need to be made? An article is a fixture if it is attached to land or a building in a substantial manner, such as by nails or screws. The more firmly or irreversibly the object is affixed to the earth or a building, the more likely

it is to be classified as a fixture. There must be a physical connection with the land or with something that is part of the land and object. Lord Blackburn’s dictum in Holland Hodgson [1872] LR 7 CP, has often been cited in establishing the rule with regard to chattels and fixtures. He suggests that, if there is no attachment, one can assume it is a chattel. 8. Darlene and Becky have become the Registered Proprietors of “Lanford Hills” as joint tenants. They decide that they would like to make part of the land into a caravan park. Becky and Darlene purchase 25 caravans, and install them in the park by bolting them onto brick pillars and connecting them to power and water. They also purchase a demountable toilet and shower block, which is cemented into place and connected to the power, water and sewer. In order to get the grass going for the camping area, Becky also purchases and installs an extensive sprinkler system at a cost of $20,000. The sprinkler heads are removable so that they can be taken off when guests are camping on that area of grass. Advise Becky as to whether the caravans, toilet block and sprinkler system should be included in a valuation of property against which the mortgage is secured and give reasons.

-

Sprinkler system is a chattel re: National Australia Bank v Blacker (2000) 104 FCR 288 Caravans – fixture re: Holland v Hodgson (1872) LR 7 CP 328 Toilet block - fixture...