Tenures, Estates, and Possession
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
continued
ESTATE IN FEE SIMPLE
- The estate lasts as long as the original grantee lives, and as
long as the heir’s survive (Medieval times). They couldn’t sell the fee
simple and it must stay in the family. This makes it the largest estate
known to the law.
- In present times, the grantee can deal with the fee simple however
they wish, including sell it, ie. The fee simple is alienable. There
is no right as an heir to the land.
- When property became alienable, it would stay in the line of heirs, not just lineal descendants
- How can you identify a fee simple and distinguish it from a life estate or a fee tail
- It becomes relevant:
• When the crown grants the fee simple to start with
• When the grantee/holder wants to on-sell the land to someone
- To create an estate in fee simple, a specific verbal formula used
to be required, which reflected the idea behind the concept of the
estate. The land was to be granted “to A and his or her heirs”. These
were used as words of limitation, defining the interest that A received
in the land. However, even though the heirs were included in the
phrase, they have no rights at the time. This is based on the maxim
“nemo est haeres viventis” [a living person has no heir].
- The formula had to be used precisely and no variation was allowed.
It could not be “to A or his heirs” or to “A and his heir ” or only a
life estate would pass, no matter the intention of the person. It was a
very inflexible law.
- s47 of the Conveyancing Act changed this (came into force on 1st
July 1920). This legislation meant that these words of limitation no
longer needed to be included, just an intention to grant a fee simple.
Now you can say “to A in fee simple”
- This has been extended by s47(2) provides that where land is
conveyed without words of limitation, the conveyance is to be construed
as passing “the fee simple or other the whole estate or interest” of
the conveyor unless a contrary intention appears in the conveyance.
- Now you have to expressly say if you only want a life estate i.e. “to A for life”
- There is one limit to s47: you cannot pass a greater interest in
the property than what you own yourself. Known as the nemo dat quod non
habet principle.
- “Inter vivos” (between living people): in the case of wills, the
position was different. In medieval times, you couldn’t leave land in
wills. This was changed in 1540 under the Statute of Wills, which
allowed a person to leave land by will at their “free will and
pleasure.” This implied that limiting words weren’t required in wills.
- In a will, a fee simple would be passed if an intention to pass this type of estate could be established.
- This was the position in Australia until 1840. At this time, the
Wills Act reversed the onus of proof: a fee simple was presumed to pass
in a will unless a contrary intention is shown. This continues to be
the position today under the Wills, Probate and Administration Act 1898.
- There could be no remainder or revision after the limitation of a fee simple.
- Nowadays, nobody uses these strict words of limitation, because it is not necessary.
- 2 unusual kinds of fee simple, rarely met these days
1. Determinable Fee Simple
Is a fee simple which has in the terms of its grant an event which may
cause it to come to an end. A fee simple has to be of an uncertain
duration. E.g. I convey my property to A in fee simple until the land
ceases to be used as a school (or for as long as the land is used as a
school). If the land ceases to be used as a school, the grantor has a
possibility of reverter. The land will automatically come back to the
grantor or his/her estate. The grantor does not have a reversion,
because grantor had a fee simple and granted a fee simple, he has no
remaining interest. This reverter happens automatically. Often used for
charities, school sites.
2. Defeasible Fee Simple
A fee simple starts out unrestricted but then a condition is attached
(a matter of semantics). E.g. To A in fee simple, but if the land
ceases to be used as a school, to B and his heirs. Fine distinction, it
involves a gift over to B. Nothing happens until B takes up their right
to the land, e.g. through a court order. Therefore it is not automatic.
Also the statute of limitations applies and B has to take up their
right within 12 years.
FEES TAIL/ ESTATES TAIL
- Passes to lineal descendants
- It is non-existent in NSW anymore
- Formula the common law courts required strictly was: “to A and the
heirs of his or her body” (to indicate direct descendants only)
- These words were called ‘words of procreation’
- You could have a fee tail going down either male line or female line or general. To A and the male heir of his body.
- These fees tail were abolished and converted into fees simple in
Australia. Conveyancing Act said if there were any remaining estate
tails in Australia, there were converted into fee simple (s19). Later,
s19A was passed to stop any avoidance and completely remove them from
Australia.
- Conveyancers developed devices to effectively enlarge a fee tail
into a fee simple. Lawyers found ways of barring these and converting
them to fee simple. They did this by subverting the intentions of the
original landowner. Common law made a rule which prohibited any land
not to be subject to barring.
LIFE ESTATES
- “To A for life” – A becomes the life tenant
- Relatively common
- Naturally not inheritable (cant be left by will)
Two important rights under these:
i. Right to possession of the land, assuming that it was a legal
life estate and not an equitable one. If it was an equitable life
estate, the holder has the right to go to Court and ask for right to
possession if in the best interests of administering the estate.
ii. Right to the income generated from the property (if applicable). This could include income from farming, rent etc.
- But there is an estate pur autre vie (to a person for the life of another person)
- To A for the life of B B has no interest in the property, B is the measuring life only. A is the life tenant.
- A life estate is assignable (you can sell a life estate)
- If you sell your life estate, you can’t sell a greater interest than what you had.
- If B has a life estate (i.e. estate lasts B’s lifetime), and sells
it to A. A’s interest would only last for B’s lifetime (B cannot
transfer a greater interest than what B has. Therefore it is quite a
precarious interest for A to B.
- Back to the original scenario: Now, If A dies before B dies (B is
the measuring life), estate goes to A’s heirs. It used to be called the
general occupancy rule, anyone could occupy the land for the duration
of B’s life.
- Now the Wills Act says A could leave the life estate by will (i.e. it is devisable) for the duration of B’s life.
- 2 types of life estate now defunct:
1. Dour estate Widow’s right to 1/3 of the deceased husband’s life estate. This was abolished since early 1900’s.
2. Curtesy Gave husband a life estate in his deceased wife’s whole life estate.
- Balancing the right between the life tenant and the reversioner or remainderman
- The law controls the life tenants interest in the property
The Law of Waste
- Waste: Any kind of alteration to the property
- The holder of a life estate cannot commit waste.
- There are 4 categories of waste:
1. Permissive Waste allowing a property to slowly and inexorably
falls into disrepair by normal wear and tear. No deliberate injury to
the property. Holder of life estate is not liable for permissive waste.
You can overcome this by putting in an express obligation forcing the
life tenant to repair
2. Voluntary Waste an intentional act of damage to the property. A
life tenant cannot do this. If it is about to happen, remainderman can
get injunction. If it happens, can get damages. Can exempt life tenant
from liability for voluntary waste. Term would read life tenant is
unimpeachable for waste
3. Equitable Waste waste of a kind that a court of equity would
restrain. Person may have common law rights but a court of equity may
step in and prevent the person exercising their legal right because
they may be acting unconscionably in exercising that right. A life
tenant may have a legal right to voluntary waste, but a court of equity
may injunct them if it is unconscionable.
Turner v Wright
Life estate in large country estate in England with grand gardens
around house. Large trees planted. Question in law about whether life
tenant can chop down trees on the premises. This life tenant was
unimpeachable for waste. This life tenant was chopping down trees. This
was an unconscionable exercise of the right to commit waste, so ct of
equity could award damages.
Bain v Lord Barnard (1716)
Lord B owned castles in Yorkshire. One castle called Raby, Father Lord
B had life estate in Raby and remainder was held in the son. Father and
son fell out, father decided to spite his son and destroy the castle.
The father was unimpeachable of waste. The son got a ct order from the
ct of equity that this was equitable waste, because it was wanton waste.
4. Ameliorating Waste: improving the property. Almost impossible for
remainder holder to get a remedy because technically no damage done.
Doherty v Allman (1878) House of Lords: (Tenant/landlord)
Involved a 999-year lease of a farm. There was a derelict barn on the
property, which the tenant converted into 6 dwellings to be rented. The
landlord sought an injunction but failed as there was nothing
detrimental to the landlord due to the improved value of the property.
The land was more economically valuable and beneficial to the landlord.
Cts only intervene where waste causes damage.
Rose v Spicer (1912): HOL - (tenant/landlord)
Involved the lease of a chapel, which was converted into a picture
theatre at the expense of the lessee. The landlord tried to prevent the
changes but failed because it improved the value of the land and the
lease didn’t restrict the use of the chapel by the lessee.