Tenure and Estates - Lecture notes 3 PDF

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Summary

Lecture notes and relevant legislation for Tenures and Estates....

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Tenure and Estates, Relativity of Title, Adverse Possession and Waste

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Lecture Outline •

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The Feudal System and Tenure • Types and Incidents of tenure • Evolution of Tenure Doctrine of tenure in Australia • Mabo (No.2) Relativity of Title Adverse Possession (Squatting) Estates in Land • Fee Simple • Fee Tale • Life Estate Waste

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Originally wide variety, sometimes very personal or bizarre Military: knight service, guarding castles, honorary official roles Religious: frankalmoin, pray for soul or masses Socage-residual services commuted to money payment: • Free and common socage; • Incidents- aids (payment), wardship, homage and fealty.

Key case: Asher v Whitlock (1865) L.R. 1 Q.B. 1 Asher v Whitlock (1865) L.R. 1 Q.B. 1 • •

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Assumption tenure applied in British colonies Aspects of Property Law in Australia Created by Statute • Squatting Act 1839 (NSW) • Squattocracy. See further Paul Babie, "Sovereignty as Governance: An Organising Theme for Australian Property Law" [2013] UNSWLawJl 43. Crown Leases Wik Peoples v Queensland(1996) 187 CLR 1, • Gummow J • Pastoral leases have the feature of common law leases but are creatures of statute

Mabo (No. 2) and Tenure •

Original assumption that Aust. was terra nullius

Perry v Clissold [1907] A.C. 73 Clissold takes possession of land by putting up a fence and using the land. Ten years later, government wants to expropriate the land, Clissold is dead and his estate claims that the government must pay compensation based on possessory interest if decide to expropriate land. • Does the estate of Clissold (possessors) have a claim to compensation? Yes. The court holds that if a person in possession of the land and has ‘assumed the character of owner and exercising peacefully the ordinary rights of ownership’ has good title against all but the rightful or true owner. Case also highlights the importance of an inchoate possessory title. Possession constitutes a right good against all the world except those showing an earlier right to possession, or the true owner. • Requirements: actual possession (factual existence of possession) and the intention to possess (the mental element of possession). •

Became more centralised and standardised. The end of Subinfeudation• Statute Quia Emptores 1290-alienation or substitution, so only tenants in chief eventually holding from the Crown • Still in force today in South Australia Tenures Abolition Act 1660: Remaining vestiges of tenures and incidents removed Escheat and bona vacantia remained for the Crown • In Australia, Crown takes bona vacantia of land and goods where no heirs

Doctrine of Tenure in Australia

Who has the better title to the land? The plaintiff (heir at law). Williamson had the first possessory title which has passed on (through the law of succession) to his wife, daughter and the heir of law of the daughter. Thus, the heir at law is really claiming the possessory title of Williamson and not their own possession. Court also notes that: • Possession is a right that can be devised to one’s heir. It has concrete status even for squatters. • Possession is traced with reference to any early possession that a plaintiff/defendant might be able to demonstrate. This is the relativity of title. In this sense, ownership runs beyond holding of one person. Note also that in this case Williamson is not really the true owner. He is a possessor. Thus, both the plaintiff and defendant would still be subject to the prior title of a third party.

Possession vs Full Ownership

Evolution of Tenure • •

Tenure doctrine perhaps not best application to colony • Tenure is still the basis of the common law, in Australia too- “far too late in the day to contemplate allodial or other system- land granted by the Crown is held on tenure of some sort” and titles granted by the Crown cannot be disturbed. Common law recognised Crown had “radical” title. Radical title didn’t give Crown absolute beneficial ownership of land to exclusion of indigenous inhabitants • Common law could recognise that native title was a burden on the radical title. • Tenure applied where land granted by the Crown, but that did not prevent recognition of title in cases where not dependent on Crown grant.

Relativity of Title

Types and Incidents of tenure •

Challenge by Eddie Mabo and 2 other Meriam people to claim of sovereignty by Qld govt over Murray Islands . H.Ct Held: • Meriam people entitled (through native title) to possess, occupy, use & enjoy the Murray islands. • Qld Govt had power to extinguish Meriam peoples’ native title as long as power exercised validly & in manner consistent with C/W law.

Mabo Judgement

The Feudal System of Tenure William the conquer in 1066 is the starting point for the feudal system in England. • Personal relationship of dependency between lord and tenant • Brennan J in Mabo(No.2) (1992)- ‘tenure is a relation between the tenant and the lord, not the tenant and the land’ • Organised into a system in England by William the Conqueror • Distinguish allodial and tenurial ownership • Land is 'held of’ the Crown rather than Crown owning all the land • Pyramid structure with Crown granting to ‘tenants in chief’ in return for services.

Milirrpum v Nabalco Pty Ltd (1971)17 FLR 141 Mabo v Queensland [No 2](1992) 175 CLR 1 H.Ct. •

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Adverse Possession (Squatting) •

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What does the law today say about adverse possession? • See sections 251 and Part 7A (s80) of the Real Property Act 1886 (SA). Elements of adverse possession

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Continuous time period – 15 years (SA & Vic). 12 years in NSW and QLD. • Section 4 of the Limitation of Actions Act 1936 (SA). • 4—Limitation in actions for

recovery of rent or land No person shall make an entry or distress or bring an action to recover any land or rent but within fifteen years next after the time when the right to make that entry or distress or to bring that action first accrued to him or to some person through whom he claims. The possession must also be “open, not secret; peaceful, not by force; and adverse, not by consent of the true owner”. Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464. Adverse possession is possession which is peaceful (not by force) and open (not secret) and without the consent of the owner or prior possessor. The 2 common law requirements are: • That there be factual possession; and • That the possessor has the intention of possess. You can eventually get an estate in fee simple through adverse possession, ie ‘squatting’. • Common law: 60 years • Now, 15 years: Law of Property Act (SA) s31(c); Limitations of Actions Act 1936 (SA) s4. Authority: • Allen v Roughly – for adverse possession; • Mulcahy v Curramore Pty Ltd – adverse possession must be open, not by force. •

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(e): if the intestate is not survived by a person entitled to the intestate estate under the foregoing provisions of this section—the intestate estate shall vest in the Crown.

Freehold Estate - Fee Tail •

An estate of inheritance.

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Person grants land to tenant and the heirs of his/her bodythus restricting transfer of land to lineal descendants of grantor. May be ‘general’ or ‘special’-male or female lineage, eg ‘in tail male or tail female. Abolished in Australia-except SA! Rarely used, 'dead hand’ of testator. A free hold estate designed to prevent free alienation of land – it was once favoured by landed gentry as a means of keeping property in family or a particular line of it by means of favouring lineal heirs, and when those who could take the estate tail exhausted itself, reversion to the donor and his heirs occurred. • The fee simple titleholder created a fee tail, and in doing so retained an interest in the land – the whole of the estate had not been given away. The holder of the fee simple would retain a reversion (the land would go back to him on the death of the tenant in tail) or else a remained interest would be created in another person (i.e. the full fee simple estate would pass to another upon the death of the tenant in tail.) • E.g. Pride and Prejudice – tail to male heirs.

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Estates in Land •

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The estate is a unique innovation of the common law. • ‘An estate in the land is a time in the land, or land for a time’, Walsinghams Case. • Enables fragmentation of ownership interests in same land, both present and future. ‘In particular, with the evolution of the doctrine of estates, property interests came to be fragmented on the basis of time’, Western Australia v Ward (2000) 170 ALR 159, per North J [359]. The term estate refers to the fullest set of rights a person can have with respect to land.

Classification of Estates •

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Freehold and leasehold • Common feature of ‘freehold’ estates is uncertainty of duration. • Leases must have certainty of duration. Freehold estates • The fee simple • Fee tail • Life estate • Leasehold estates (or tenancies)

Freehold Estate - Fee Simple • • • •

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Gradually transformed over the centuries from one that gave its holder the power to leave it by will to anyone they wished, as well as the right to transfer it inter vivos. ‘Fee’ denotes that the estate is capable of being inherited via a will. ‘simple’ indicates that there is no qualification in respect of the class of the people who can inherit. In modern times, the ability to seel the estate on the open market (aka free alienability) became the right of prime importance and made fee simple the strongest estate in land. Closest thing to absolute ownership, Gumana v Northern

Territory (2007) 153 FCR 349. • • •

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Holding in free and common socage for a fee simple absolute in possession! Fee simple continues as long as heirs, potentially therefore indefinitely. If an owner dies intestate, and with no next of kin, Crown takes land as bona vacantia. See also section 72G(e) of the Administration and Probate

Act 1919 (SA). •

Subject to this Part, an intestate estate shall be distributed according to the following rules:

Freehold Estate – Life Estate For life, no inheritability (hint: that’s why ‘fee’ not included in term).  Leasehold estate (basic definition) – An interest in land given by a landowner (landlord or lessor) to another person (lessee or tenant) for a fixed duration such that the lesee has the right to exclusive possession of the premises. Two kinds: • pur sa vie (for Grantee's life): A grants B an estate for B’s life. When B dies, estate returns to A or A’s heirs (reversion) or goes to future interest (remainder) • pur autre vie (for the life of another): As above but B grants C an interest in land. At most the interest C has only lasts as long as B lives. B dies, C’s rights to land cease. Once the life tenant dies, ownership of the asset goes to the remainder person. 

Liability for waste • • •

If you have a life estate…can be subject to the doctrine of waste. Limited interests of current possessor (vested interest) • Therefore alterations might cause damage to reversion or remainder interests, so tort of waste Types of waste • Voluntary-doing something not permitted eg cutting timber, removing fixtures. • Permissive-omitting to do something you should do, eg vital repairs – rarely imposed and has to be in grant. • Ameliorating- improvements, rarely will this deserve damages. • These types of waste can be argued by the Grantor of the life estate.

Successive Interests  

It is important for the law, and for the orderly transfer of interest, that the identity of the transferee is known, as weel as the type of estate that he or she is taking. Fee simple: The title holder of a fee simple estate has an estate of unlimited duration and may during their life convey their estate to another person, or on death, leave it to another via a will. o If A as a fee simple title holder grants a life interest to B, B grants a reversion interest or remaider interest, depending on whether the interest returns to A on the death of B, or passes on death from B to C. o If A is holder of a fee simple estate and grants to B a life estate, then A’s right is called reversion. This is to say that when B dies, the right to possession of the estate reverts back to A or A’s heirs, (Also A is referred to as ‘vested in interest’ and B is ‘vested in possession’. o If A is a holder of a fee simple estate and grants it for life to B with the remainder to C. in such a case, C is known as the remainder person; C takes his or her interest in fee simple, once B dies. Thus C is vested in interest, and the estate does not return to A, there is no reversion.

Relevant Legislation: Ss 80A – 80I, 251 80A—Application for certificate based on possession A person who would have obtained a title by possession to any land which is subject to this Act, if that land had not been subject to this Act, may apply to the Registrar-General for the issue to him of a certificate of title to that land. 80B—Application requirements (1) An application under section 80A— (a) must be in the appropriate form; and (b) must contain a declaration signed by the applicant declaring that all the statements in it are true. (2) The applicant must, if required to do so by the RegistrarGeneral, provide the Registrar-General with a plan of survey of the land. 80C—Application how dealt with (1) The Registrar-General shall refer each application to a legal practitioner, who shall examine it and report upon it to the Registrar-General. (2) The Registrar-General may thereupon in his discretion reject the application as regards the whole or any part of the land to which it relates, or proceed as hereinafter provided. 80D—Requisitions The Registrar-General may— (a) require an applicant to furnish him with any information or documents relating to his application; (b) notwithstanding any direction previously given by him as to the application, reject it altogether or in part if the applicant fails to comply within a reasonable time with any requisition made under this section. 80E—Notice of application (1) If an application is not wholly rejected by the RegistrarGeneral, the Registrar-General must cause a notice of the application in the appropriate form— (a) to be published once at least in a newspaper circulating in the neighbourhood of the land, and, if the Registrar-General thinks necessary, in any other newspaper; and (b) to be given to any person who in the RegistrarGeneral's opinion has or may have any estate or interest in the land; and (c) to be published in any other way or given to any other persons. (2) The notice shall fix a time, not less than 21 days nor more than 12 months from the first publication of the notice in a newspaper under subsection (1) of this section, at or after the expiration of which the Registrar-General may, unless a caveat is lodged, grant the application altogether or in part. 80F—Caveats (1) A person claiming an estate or interest in the land to which an application under this Part relates, may at any time before the application is granted, lodge a caveat with the RegistrarGeneral forbidding the granting of the application. (2) A caveat under this section— (a) shall state the nature of the estate or interest claimed by the person lodging it and shall give an

address at which notices and proceedings relating to the caveat may be served; (b) need not be in any particular form but shall be accepted by the Registrar-General if it gives reasonable notice of the claim of the caveator. (3) If the Registrar-General is satisfied that the caveator is the registered proprietor of the land to which the application relates, or has an estate or interest in that land derived under or through the registered proprietor, he shall refuse the application: Provided that the Registrar-General shall not refuse an application solely on the ground that a person is entitled to an easement in or over the said land, but if a person is so entitled the Registrar-General may include in any certificate of title issued to the applicant a statement that the land is subject to the easement. (4) If the Registrar-General is not satisfied that the caveator is the registered proprietor of the land or has an estate or interest therein derived under or through the registered proprietor, he shall give notice to the caveator that the caveator is required to take proceedings in the Court to establish his title to the estate or interest claimed by him, within a time specified in the notice being not less than six months after the giving thereof. (5) If a caveator who has received such notice from the Registrar-General does not within the time mentioned in the notice bring an action in the Court to obtain a declaration that he is entitled to the estate or interest claimed by him and give written notice thereof to the Registrar-General, or obtain from the Court an order or injunction restraining the RegistrarGeneral from issuing a certificate to the applicant under this Part, the caveat shall lapse. (6) A lapsed caveat shall not except with the permission of the Court be renewed by or on behalf of the same person in respect of the same estate or interest. (7) In any proceedings to establish the title of the caveator the issue for the Court to decide shall be whether the caveator is the registered proprietor of the land or is entitled to an estate or interest derived under or through the registered proprietor. 80G—Power to issue certificates Upon or after the expiration of the time fixed by the notice under section 80E of this Act, if the Registrar-General is satisfied that the possession on which the applicant relies would, if the land had not been subject to this Act, have conferred on the applicant a title by possession, he may issue to the applicant a certificate for an estate in fee simple or for any other estate acquired by the applicant, free from all encumbrances appearing by the Register Book to affect the existing title: Provided that where a caveat has been lodged against the granting of an application the Registrar-General shall not grant that application unless— (a) the caveat has lapsed; or (b) proceedings taken by the caveator to establish his title have been finally disposed of, and in those proceedings the caveator has failed to establish his title, or to obtain from the Court an injunction restraining the Registrar-General from issuing a certificate to the applicant. 80H—Cancellation of instruments (1) Where a certificate of title for any land is issued under this Part the Registrar-General— (a) shall cancel the existing certificate of title for that land and any instrument, entry or memorial in the Register Book altogether or to such extent as is necessary to give effect to the certificate of title issued; (b) shall endorse on every certificate of title so cancelled a memorandum stating the circumstances and authority under which the cancellation is made. (2) Upon the cancellation of a certificate of title, instrument, entry or memorial pursuant to this section, the estate and interest evidenced thereby shall cease and determine. 80I—Fees The fees payable upon an application under this Part and in respect of the issue of a certificate under this Part shall be the same as if the application were an application to bring land under the provisions of this Act. 251—No title by adverse possession Except as provided in Part 7A of this Act, no person shall acquire any right or title to land under the provisions of this Act by any length of adverse possession, nor shall the right of the registered proprietor to recover possession of any such land be barred by any length of adverse possession....