Doctrine of tenures

-    Nobody owns land in the sense of having absolute ownership of it.
-    The crown owns it and the citizen (tenere) holds it from the crown. Hence, all ownership is like a tenant-landlord relationship. The Crown grants land to individuals, but still effectively holds it.
-    In medieval times, you held it on the condition that you rendered certain obligations to the crown in return for land holding.
-    These individuals could then sub-grant land to others, which is known as subinfeudation. They have the rights to the land but don’t actually own the land.
-    In time the usefulness of these tenurial obligation diminished because the king would demand money payments
-    Quia Emptores: this removed the adding of rungs to the feudal ladder. Feudal system removed, but the Crown retains ownership.
-    In 1660, most of theses obligations were abolished
-    In Australia these services don’t have to be performed, but the doctrine is still there, you still don’t own your land
-    The only practical consequence of the doctrine of tenures is that if you die without a will and with no next of kin, the land reverts back to the state. But this is a very rare occurrence. Otherwise it has no practical significance.
-    America has abolished this doctrine
-    Allodial land is land for which there is no lord who owns the land. The only allodial land in Australia is Native Title land
-    Subinfeudate  verb to pass on/subinfeudating the land to those lower down the feudal order from the crown down (what we call sub-letting).

Doctrine of Estates

-    has more relevance than doctrine of tenures, but it had more relevance in feudal times
-    Doctrine of estates told you how long you could stay on the land. There were three possibilities:

1.    Life estate - for your life  ancestors had no rights, couldn’t pass on to next generation. This is not inheritable therefore is not a fee

2.    Estate Tail or a Fee Tail  Estate would last as long as the original holder, A, lived and A’s direct lineal descendants (children) lived. In these days there was no free alienation of land, i.e. hard to sell land. This could go on forever or for many generations. Could create a tail that went down male or female line (Estate Tail Female/Male) or a General Estate Tail. These were used in large wealthy family in England and was a way of guaranteeing prestige and wealth for your descendants. These have long been abolished in Australia in 1920.

3.    Estate in Fee Simple (fee simple)
-    ‘Fee’ means an estate which is of uncertain duration and which is inheritable
-    Estate in Fee Simple was an estate which would last as long as the original grantee lived and was survived by heirs.
-    “Heirs” are a much wider category in law than lineal descendants i.e. can be your siblings even your parents. This could last forever or could come to an untimely end. These are most common.
-    Note: You own your estate in the land, you don’t own the land
-    What you are selling nowadays is not your land, it is your Estate, which is your right to be on the land, your fee simple estate. The Estate in Fee simple carries with it the right to possession of the land/to use and enjoy the land.
-    The right to be in possession of the land is the right to Seisin (“Seised”)  the right to enjoy quiet possession of your land. “John smith is seised of an estate in fee simple in the land” means John Smith owns the estate in the land.

General Notes on Estates

-    There is no way of knowing how long any of these estates will last. This creates a difference between these and leases, as leases are for a set period of time (can be up to 999 years in Medieval times).
-    Currently, only the life and fee simple estates remain, with fee simple estates more prevalent.
-    Property rights are inalienable: if fee simple, can sell the estate as you wish. The heirs have no right to inherit the land, it is a privilege.
-    For non-Torrens land, this old terminology is still relevant
-   
Leases developed outside the classic land law, therefore this terminology doesn’t apply to leases
-    This led to the doctrine of merger: If a person owns a freehold interest in land (e.g. a fee simple) and then they acquire a lease over the same land, then the lease merges into the freehold and is extinguished. E.g. if purchaser buys the land off the tenant, the lease is extinguished (it merges). The exception is if the purchaser chooses not to have the doctrine apply and wants to preserve the lease.
-    We use the word tenant in fee simple to mean the person who holds the fee simple (tenere). A tenant in fee simple or a tenant in fee tail or a life tenant is the person who holds the fee simple. Tenant in fee simple is known in practice as the owner of the estate.

Reversion and Remainder Interests

-    A fee simple is a bundle of rights. In medieval times they regarded estates as bodily things. When you compare the three estates, each is of a different size/quantum.

NOTE: The fee simple is bigger than a fee tail which is bigger than a life estate.
-    It must be possible if you own a fee simple to carve rights out of it and pass it on. Can take a piece of a fee simple (e.g. a  life estate) and pass it on to someone else which would last the duration of their life, but the rest of the fee simple would still vest in you. This life estate is a presently existing legal interest therefore could be conveyed. The life estate would not affect the fee simple after it was extinguished.
-    A fee simple is the greatest known estate. You can carve out rights out of a fee simple. If you carve out a life estate, give to someone the right to enjoy that for their lifetime. You are giving them possession of the land. You deprive yourself of rights of possession of that life estate and any income from that land. But you must have what is left of the estate (fee simple) residing in you.

Reversions
-    Vested interests in the land.
-    Vested interest means a presently existing interest in the property.
-    This is what is left for fee simple owner once a lesser interest is carved out (e.g. a life estate is carved out).
-    What is left for the original fee simple holder is a reversion in fee simple. It is also known loosely as a reversionary interest
-    It has been called a future interest in the land because the right to possession and enjoyment is temporarily withheld. (Could be a misleading term)
-    You can sell the reversion or mortgage it, you can deal with it since it is a presently existing interest in property

Remainders
-    If X owns a fee simple in the land, X could convey this fee simple in fractured bits. They could “carve out” and convey a life estate to L (Life tenant) and convey the rest of the fee simple to A (i.e. X no longer has any interest in the land).
-    A’s interest would be like the reversion, although it is given to A as part of the conveyance transaction from X. When it is given to A as part of a transaction, it is called a remainder in fee simple.
-    A remainder is the same interest as a reversion, but the name given depends on how the interest arises.
-    The remainder is a presently existing interest in the property, like the reversion, it is not a future interest.
-    A’s enjoyment is postponed until L dies and A cant get income from it until L dies. But A can deal with it subject to L’s interest. L has the right to possession and enjoyment, but this will pass to A upon L’s death.
-    The term for a remainder holder is a remainderman

Contingent remainders: are remainders that would come into existence contingent on some future event. A is young and X isn’t confident that A will be responsible. X wants to put an age limit on when A can receive their interest. Formula: “To L for life and the remainder to A when A attains 25”. Where is the remainder of the fee simple until A is 25? It stays with X and X’s estate. When A turns 25 the interest shifts across to A, if A doesn’t reach 25, it stays with X.

A Vested Remainder: is the remainder that stays with A as a presently existing right. It would not be a vested remainder if it was a contingent interest.
-    How contingent could you make these remainders
Looking at the 3 types of Estate in More Detail

Continued on page 2