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.