•    2 basic doctrines of property law

o    Doctrine of tenures
o    Doctrine of estates

Doctrine of Tenures

•    All land is owned by the crown – no-one owns their land, it is held of the crown
•    The crown grants their subjects the right to hold (but not own the land)
o    Doctrine of tenures explains the terms upon which the land is held
•    Possible exception of native title claims
•    Relevant aspect: Law of escheats
o    In Australia, that land will only revert to the crown if you die and do not leave your property to anyone in your will

Doctrine of estates

•    Sets up three sorts of interest in land
o    Fee simple (FS)
    -    Most extensive, most absolute
o    Life estate (LE)
o    Fee tail (FT)
    -    Now obsolete

Fee simple

•    Freehold interest in land
•    An interest in land which lasts as long as the owner, and is survived by their heirs
o    Heirs wider concept than just lineal descendants
o    ‘Simple’ meaning unrestricted
•    Most common form of estate since the Tenures Abolition Act 1660
•    Sometimes reference to someone being ‘seised’ of the land in fee simple
o    Means they have the right to remain in peaceful possession of the land

Essential features:

•    Owner (tenant in fee simple) has the power to dispose of the land during their life or by their will
•    Owner can transfer the property to collateral heirs

To create an estate in fee simple - conveyances

•    Section 47 Conveyancing Act
o    Only relevant to conveyance inter vivos (between living people)
•    Presumption that fee simple passes as long as conveyor had an interest in fee simple to pass
o    Ie it is enough to conveyance to A or A in fee simple
o    Wills Act NSW
    -    Presumed that fee simple passes in will
•    Onus of proving otherwise lies on person who wishes to prove so
•    To leave life estate only, must be explicit
•    Person with estate in fee simple may convey some of the estate away

Possession is respected

•    The law recognises the person who has possession of the land
•    Protects them from anyone but the true owner
•    If wrongful possessor hold onto possession for 12 years they will acquire the owner’s rights

Reversion

•    If A, is seised of land in fee simple, and grants a life estate to B
•    A’s interest is called a reversion
o    May be sold or passed onto heirs

Remainder

•    If A sells reversion to X
o    X’s estate cannot be classed as a reversion, as X has never been sesed (in possession) of land, and so subinfeudation is not possible
o    This is because reversion implies tenure
•    X’s interest is called a remainder interest
o    Upon B’s death, the land remains away from A instead of reverting to A

Contingent Remainder

•    Where an interest in land will vest itself only upon the occurrence of some contingency
o    Eg person turning 21
•    If person dies at 20
o    If life tenant alive, back to life tenant
o    If live tenant not alive, back to grantor
o    If grantor not alive, to estate of grantor (or government if no estate)

Determinable fee simple

•   
Fee simple that will automatically come to an end on the occurrence of a specified event that may or may not occur
o    Eg “For as long as the land continues to be used for school purposes”
o    If the event occurs, the land reverts to the grantor
o    If the event becomes impossible, the possibility of reverter to the grantor is destroyed, and the fee simple becomes absolute

Defeasible Fee Simple

•    Fee simple granted in absolute terms, but qualified by super added condition of defeasance
•    Similar to above, but grantor has the choice to decide whether or not to reclaim the right of entry – not automatic
 
Life Estate

•    An interest for as long as you live, but which cannot be passed on
o    Eg husband might leave wife estate that will pass when she dies
•    Cannot sell the property
•    Can have life estate for duration of someone else’s life
•    2 types
o    ordinary life estate
o    estate ‘pur autre vie’

Ordinary life estate

o    Estate for the life of the grantee (most common)
o    Formerly used as a lease before leases received full protection of the law
o    Now used mainly in Australia in retirement villages and in wills
o    To leave a life estate
o    The presumption is now that it is a fee simple unless otherwise indicated
o    Between living people (inter vivos)
    -    Must be established with words –eg ‘to A for life)
o    In a will
    -    Must be expressly indicated
•    Formerly, burden of proof to prove fee simple, now, burden of proof to prove life estate

Estate ‘pur autre vie’

•    Eg To B for the life of A
o    B is the tenant of life estate ‘pur autre vie’
o    A is the cestui que vie
•    Ie cestui que vie:
•    Person whose life governs the length of the estate
•    No beneficial interest in the land, only a unit of measure

•    May arise in 2 ways
o    Created by express grant
o    Created where the holder of an existing life estate conveys to another person

•    If B dies before A
o    B’s Heirs could occupy until A’s death
    - S5 Wills and Probate Administration Act 1898 (NSW) allows testator to dispose of all his personal estate

Legal and equitable life estates:

•    Legal life estate
o    Life tenant has automatic right to possession (usual case)
•    Equitable life estate
o    No automatic right to possession, although equity courts will usually afford that right
o    Legal ownership of property in someone else
    -    eg where land conveyed to trustees upon trust for A for life, with remainder going to B in fee simple
o    Where trustees have no active duties to manage the property
    -    Equitable life tenant entitled to possession
•    Turner v Noyes
•    Brown v How
o    Where trusties have duties to perform
    -    Equitable life tenant not entitled to possession as of right, unless the instrument creating the life interest confers that right expressly or by implication
•    Powrys v Blagrave
    -    Equitable Life tenant may apply to court for order granting possession and right to manage the property
•    Court decides whether allowing tenant into possession is the best way of dealing with the property in the interests of all
o    Re Earl of Stamford and Warrington
Remainder men
•    People to whom the property passes when the life tenant dies

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