#7353 - The Doctrines Of Tenure And Estates Determinable And Conditional And Future Interests The Doctrine Of Waste - Property, Equity and Trusts 1

• Property refers to a bundle of rights over things exercisable against others – these rights can be held by one person or a group and the rights may be divided amongst a number of persons in a variety of ways.

• This ability to fragment property is evidenced in a number of common law doctrines

  • The doctrine of tenure – enables interests in land to be divided spatially, with different tenants having a range of entitlements tied to particular parcels of land

  • The doctrine of estates – allows fragmentation of interests in land on a temporal basis.

    • This developed more in the case of land than objects – because of its permanence and its economic, social and political importance to the social structure of feudal times –

    • Pollock and Maitland note the centrality of property in feudal times – “all that we call public law is merged in private law: jurisdiction is property, office is property, the kingship itself is property”

  • The doctrine of trusts – Separates beneficial ownership from strict legal entitlement and extends techniques of fragmentation to other objects.

    • Comes from the courts of equity – it can be seen as in the nature of a ‘jurisdictional’ fragmentation of proprietary interests

• A persistent problem in Australian property law is whether and how to recognize claims of Indigenous peoples over land – especially in distributing rights in a clear/comprehensive manner and expressing how to ‘share the country’ (Frank Brennan) in legal doctrine

  • The recognition of native title in Mabo is fundamental to this division of land – insofar as native title does not only derive from conventional systems of law but also from customs/traditions – it can be expressed as a fourth type of fragmentation (‘systemic fragmentation’) of interest in land

• The classic doctrine of tenure exerts a profound influence on the structure of proprietary interests in land – its roots lying in the economic and political interstices of the feudal system.

• Tenure refers to a mode of holding land where by one (the tenant) holds lands of another subject to the performance of certain obligations.

• The system originated during the Norman Conquest with William the Conqueror distributing his land to his subjects (‘tenants in chief’); others who held their land differently but didn’t rebel against William’s retained possession and under the legal fiction that all title was held by the King, though they weren’t subject to a grant their land was held as part of a royal grant

• The obligation of tenants created complex feudal ties between the King and his or her subjects:

  • Services – obligations on the part of the tenant owed to the landlord (e.g. providing knights – knight service)

    • Tenants in chief could also grant their land (subinfeudation), becoming ‘mesne lords’ and under them specify agricultural services (‘socage tenure’)

  • Incidents – rights conferred on the lord over the tenant’s land or the tenant’s person that arose in certain circumstances

    • e.g. on death of the tenant, the heir of the tenant had to pay money (‘relief’) to the overlord before succession (if an infant the lord held the land in ‘wardship’ during his minority). Other similar incident was the ‘incident of marriage’ and the escheat (the land of a tenant by knight service escheat to the Crown if there are no heirs or the child is convicted of a felony)

• The feudal pyramid had the King at the tip, all land granted being held of him, and each person in the pyramid to whom land was granted owed services to the mesne lord immediately above, and was owed services by the person below

  • Most tenants had land they possessed (their demesne) and land they held as lords (being tenant and lord)

  • But those at the bottom of the pyramid only had rights of occupation (‘tenants in demesne’)

    • Roughly: Crown Tenants-in-Chief Mesne lords Tenant in demesne

• Hence in this system ‘ownership’ was inadequate to describe the right to property (except in the Crown’s demense).

• The Feudal system became increasingly complex until in 1290 the Statute of Quia Emptores was passed which:

  • Permitted every free man to alienate his interest in land without the lord’s consent

  • It prevented further subinfeudation from taking place (e.g. if a Tenant-in-Chief alienated all of his land to another, the other now becomes the tenant-in-chief)

  • This shrunk the feudal pyramid

• In 1669 the Tenures Abolitiion Act abolished knight service – converting all free tenures to socage tenure.

• Even though the doctrine of tenure is essentially abolished in AU, its influence is seen threefold:

  • It is often said that no-one can own land since it is all held by the Crown. This is still formally a part of Australian Law – since AU was settled after abolition of subinfeudation, there being no overlords, all land is held directly of the Crown (Mabo v QLD)

  • The modern landlord-tenant relationship bears resemblance to early tenurial relationship

  • The traditional doctrine of tenure operated, until Mabo, to obstruct recognition of native title

• Services do not exist in Australian Law. In Council of the Municipality of Randwick v Rutledge [1959] HCA:

  • Express powers were given to Governors to grand lands, with socage tenure being introduced to the colony from its beginnings.

  • If services and incidents ever existed in Australia (in the form of socage tenure) then the idea that no absolute ownership of the land would follow naturally

  • The idea of ‘quit rents’ came to Australia in the form of purchase annuities spread over 20 years and were levied on the grant of parcels of land from the Crown – they were not representative of the value of continuing service to be performed to the land (as it was in England)

    • This makes it seem inaccurate to see them as evidencing tenurial holding of the Crown

• Incidents also do not exist. In Australia land in fee simple would escheat to the feudal overlord (the Crown) when the tenant was convicted of a serious criminal offense (or left the realm to avoid it) or on the death of the tenant in fee simple who had no kin.

  • Escheat with attainder (criminal offence) was abolished in the late 1800s. Furthermore when a tenant in fee simple dies without next of kin, the land passes through the Crown as bona vacantia (much like chattels)

    • The doctrine of bona vacantia is contrast to the idea that all land was held in trust – this is evidence of the dissolution of the tenurial vestiges of Australian land law

    • Further evidence of this is in the fact that the incident of ‘relief’ never existed in Australia – hence any reference of landholders ‘holding of’ the Crown seems to have been overshadowed by legal evolution

• The idea that land could be divided among persons was conducive to ‘the evolution of the doctrine of estates [with] property interests [coming] to be fragmented on the basis of time] (WA v Ward [2000] North J)

• Land has special characteristics distinguishing it from property – namely it’s permanence and capacity to generate income forever.

  • Due to these features the common law began to recognize the desirability of allowing persons to hold successive proprietary interests in land – this was accomplished through the doctrine of estates

• Estates - the fullest set of rights of enjoyment of land, namely the right of possession.

• The ‘estate in fee’ was the ‘maximum interest which a subject could have in the land (Mabo v QLD (No 2) Deane J)

• Estates are differentiated from lesser interests likes easements or profits a prendre. The common law did this by referring to estates as corporeal hereditaments (physical possession of land) and lesser interests as incorporeal hereditaments (rights over land)

• Estates permitted interests in land to be carved out temporally – a future interest could also be alienated.

• The notion of an ‘estate’ was quite different from the ‘land’ – the estate entitled to the owner to possession (seisin) of the land at some time; but not necessarily immediate possession.

  • This allowed the common law to create estates of varying duration – the fee simple was one which could last forever whereas the life estate lasted for the holders life time

    • These estates could be passed inter vivos even where they wouldn’t ‘fall into possession’ until some future time )e.g. where possession was dependant on the death of the holder)

• It should be noted that in other jurisdictions (e.g. Roman civil law) property law developed differently from that of estates (201.7)

• Estates are usually classified into

  • Freehold (the fee simple, fee tail and life estate) – these were the only estates recognized by courts

    • These carried seisin and hence the protection of the real actions

  • Less than freehold (leasehold) – these were regarded as mere personal contracts between landlord and tenant and thus regarded as inferior interests (personalty)

    • Leasehold holders didn’t have any such remedy – initially possession was not recoverable, only damages, until the advent of the action of ejectment.

      • Thus a lease for 500 years was protected less than a life estate

      • Formally the difference between the two is that freehold estates were measured in lives and therefore of uncertain duration, as compared to leasehold estates

The fee simple

• The fee simple is the greatest interest in land recognized by the common law and is the closest to absolute ownership

  • “An...