Tenures, Estates and Possession
• 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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Rights of life tenant
• Right to income from the property
o Includes income from farm
- Re Burn (1918)
o Includes royalties from mine
- Re Kemeys-Tynte [1892]
• Can sell life estate, but very uncommon
Emblements
• Legal representatives of deceased life tenant have right to enter
land after the life estate has come to an end, an reap the crops that
the life tenant has sown
o Only applies to crops
- Graves v Weld
o Applies only where life estate has come to an end without the life tenant’s fault
- Oland’s Case
o Does not apply if life tenant goes bankrupt when life estate given “to A until bankruptcy
- Official Trustee v Westpac
o Applies only to crops planted by the life tenant, not to those by remainderman or reversioner
- Grantham v Hawley
Obligations of life tenant: The law of Waste
• Life tenant not allowed to use property in a manner detrimental to those who eventually inherit
• Waste
o Any act which affects the value or character of the property
Permissive waste
Life tenant not responsible for normal deterioration of property unless express clause in will
o Re Cartwright (1880)
Voluntary waste
• Life tenant is responsible for deliberate acts of damage to the property
• Unimpeachable of waste
o Those protected by exemption clauses for voluntary waste
Can get equitable relief despite status as unimpeachable of waste
• Vane v Lord Barnard(1716)
o FACTS
- Life tenant unimpeachable of waste in possession of caste
- Had fallout with remainder man, and strips castle bare
Equitable waste
• Unconscionable acts of wanton destruction
• Not punished by common law, but courts of equity would restrain or punish
Life tenant could not cut down trees, as this would be a ‘wanton act of destruction’
• Turner v Wright (1860)
o FACTS
- Life tenant in possession of grand manor house surrounded by trees
- Life tenant unimpeachable of waste
- Wanted to cut down all trees
ESTOVERS:
But, regarding trees: there is the right to cut timber for fuelling or
repairing a house, for making and repairing agricultural implements,
repairing existing walls, fences ditches (although use must be
reasonable)
Entitled to fell and sell trees, but not timber trees. Timber trees traditionally seen as
o Oaks, elms and ash over 20 years of age
• Honywood v Honywood
• Chapman v Strawbridge in Australia
Ameliorating waste
• Act which improve the land
• Courts will rarely step in here
o Doherty v Allman (1878)
• Only likely to be restrained where character of premises is in jeopardy
•
Reasonable alteration which improve premises, and are not expressly or
impliedly prohibited by instrument creating life estate do not
constitute waste
Improving (ameliorating) waste not restrained
o Muex v Cobly(1896)
o FACTS
- Tenant of farm converted it into market garden
o Hyman v Rose (1912)
o FACTS
- Life tenant wished to turn chapel into cinema, and increase market value
o HELD
- Court would not grant injunction as changes would improve value of
premises, and were not expressly or impliedly prohibited
- Also, tenant lodged bond with the court to cover the cost of converting it back to a chapel
Waste which improves value may not always be allowed
o Hunt v Hodges (1849)
o FACTS
- Life estate of large country estate built lead smelter
o HELD
- Amounted to waste, even though lead smelter improved the value
Fee Tail
• Tail meaning restricted
• Interest that continues as long as the original grantee and their lineal descendants lived
• Abolished by section 9 of Conveyancing Act 1919
Leasehold estate distinguished from freehold estate
• Freehold estate of uncertain duration and may last forever
• Leasehold interest expires on a given date