Tenures and Estates
Legal and Equitable Interests in Land
Native Title
Assoc Prof Cameron Stewart
The Anglo-Saxon Invasions c500AD
The Battle of Hastings 1066
Norman Reorganisation
• Sovereignty
• Absolute
beneficial title
• Reception of laws
– Conquering
– Settling;
– Cessession
• Feudalism
Feudalism
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The hierarchy of property
Homage fealty
Subinfeudation
Lords and villeins – unfree servitude (labour)
Growth of manorial customary law –
enforceable in the manor courts – unfree
tenure - copyhold
Types of tenures
• Knight service - military
• Serjeanty – personal services to the King – onerous to the
comical
• Frankalmoin – religious
• Socage - residual – money or quit rents
• Incidents – Homage and fealty,
• primer seisin - king's right to take land until homage paid
• relief - right to claim amount when heir took tenancy
• aids - levies for particular occasions eg ransom
• wardships - when heir took inheritance before majority
lord would take wardship and be able to claim fees for
administering estate- control marriage - traffic
• escheat - right of feudal overlord to take back estate if
tenant was convicted of serious offence, fled jurisdiction or
died without heirs
• BLOUNT S FRAGMENTA ANTIQUITATIS
Types of tenures
ASTON-CAMLOU, COUNTY OF WARWICK.
The manor of Aston-Cantlou (so called from the
family of Cantilupe) was by inquisition after the
death of Laurence Hastings, Earl of Pembroke,
returned to be held in this form, viz. That that manor
is held by itself of our lord the King in capite, by the
service of finding a foot soldier, with a bow without a
string, with a helmet, or cap, for forty days, at the
proper charges of the lord of that manor, as often as
there should be war in Wales
Types of tenures
MIDELINTON, COUNTY OF OXFORD.
Henry FitzWilliam holds of our lord the King one
piece of land in Midelinton, by the serjeanty of
finding one towel to wipe the hands of our lord the
King, when he shall hunt in the forest of Witchwood,
in the parts of Lankeleg, and that land was worth
forty shillings.
Types of tenures
Rowland le Sarcere held one hundred and ten acres of
land in Hemingston, in the county of Suffolk, by
serjeanty; for which, on Christmas-day, every year,,
before our sovereign lord the King of England, he should
perform, altogether, and at once a leap, a puff, and a fart;
and, because it was an indecent service, therefore it was
rented, says the record, at 26 s, 8 d a year, at the King's
exchequer. One Baldwin, also, formerly held those lands
by the same service; and was called by the nickname of
Baldwin le Pettour, or Baldwin the Farter
Types of tenures
BOCKHAMPTON, COUNTY OF BERKS.
William Hoppeshort holds half a yard-land, in
that town, of our lord the King, by the service
of keeping for the King six damsels, to wit,
whores, at the cost of the King. This was called
pimp tenure
Henry II – the Father of the Common law
• Curia Regis
• General Eyre and
Assizes
• Assize of Clarendon
1166 – 12 freemen
from the hundred and 4
from the town
• Henry, Richard Coeurde-Lion and John
Lackland
Edward Longshanks Hammer of the Scots
• Parliament begins 1275
• The use of statute as
opposed to ordinance
• Nisi Prius
Curia Regis – embryonic courts
• Court of Exchequer – revenue
• Court of Common Pleas – civil actions
• Court of King’s bench – crime
• Remaining Council functions split into
King’s Council later Concilium Regis and then
Privy Council
Land Reforms under Longshanks
• Statutes of Westminster (1285) – De donis
conditionalibus – fee tails
• Quia Emptores (1290)– end to frankalmoin
and end to subinfeudation
The Writ System
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Bureacracy
Organisation of wrongs
Remedies
Popularity
Recording
Stare Decisis
Common law
Seisin
Types of legal estate
• Freehold estates
• Fee Simple – closest to absolute ownership rules of primogenture – escheat
• 1540 Statute of Wills - later recognition that
can be passed by will – “simple” meant that it
could pass to any heir unlike the fee tail which
must pass to particular heirs
Freehold
• Absolute interest
• Determinable interests – the occasion of some
event will cause the fee simple to revert eg “to
y and his heirs so long as St Paul’s Cathedral
shall stand”
• - a possible or latent reverter interest
• - words used “while”, “during”, “so long as”, “
until”
Freehold
• Conditional – a subsequent condition on the
devise which states that the occurrence of
some event will allow the grantor to take back
the interest eg “to Y and his heirs on the
condition that the property is not used to sell
liquor” – only exercised by right of entry
• words used “on the condition” , “but if”,
“provided that”
Fee tail
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Fee tail- a disposition that would last only while
the heirs of that person would last – if they died
out the interest would revert back to the heir of
the original owner – way of keeping land in the
family and restraining any disposition
Tail male – male descendents specified
Tail female – female descendents
Special tail – the descendants of a particular wife
Fee Tail
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Made possible in De Donis Conditionalibus –
lords wanted control over who would get
estate – so that despite any attempt to
alienate the interest the interest would past
to the designated heir on death
Barring the entail - Common recovery/fine =
collusive court actions
Now abolished Cact 19
Life estate
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Life estate – granted to a person for life –
Pur autre vie – for the life of another – “to A
for the life of B” or where A has a life
interest (“to A for life”) and A alienates that
interest during his life time
In either case when the life tenant died the
interest terminated
Future interests
• Already apparent that estates allow in to be
granted for the future eg “to A for life and
then to B in fee simple”
• B’s estate is a future estate – it doesn’t come
into being until the death of A
• Reversions – a grant of an estate in possession
which returns to the grantor eg X grants and
life estate to Z hence X is the reversioner
Future interests
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Remainders - a grant of a future interest to
some one who did not have a previous
interest – eg to W for life and then to Y in fee
simple – Y is the “remainderman” or
“remainder”
Vested and Contingent Remainders
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the rules concerning future interests require the
interest to vest or “fructify” by a certain time –
if it does not then the interest will fail
An interest vests when the identity of the
interest holder is ascertained and when there is
no condition precedent other than the normal
determination of prior estates
“to A for life and then to B in fee simple” Vested
To A for life remainder to B in fee simple if B
attains 25 years - Not vested
Vested and Contingent Remainders
• To A for life remainder to B in fee simple
if B attains 25 years - Not vested
• Why? B’s interest is contingent unless
he has already achieved the age of 25
when the clause was written – that is
the fact that he must be 25 is a
contingency which must be satisfied for
the property to vest in him
Interests in Land that are less than
freehold
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Easements
Profits a Prendre
Restrictive Covenants
Mortgages
The Office of the Lord Chancellor
• Around since Norman
times
• Keeper of the King’s
Conscience
• Cleric and Keeper of the
Great Seal
• Member of Lords, Judge
and Church
Chancery as a Court
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Around the 15th century
Function to repair the failings of Common law
Principles of Christian fairness/conscience
Maxims of equity
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Substance not form
Does not assist a volunteer
Equity follows the law
Clean hands
• Discretion and the Chancellor’s foot
• The two streams – law and equity
What does Equity do?
Parkinson:
(i) the exploitation of vulnerability or weakness, as exemplified in
principles relating to unconscionable dealing and undue influence;
(ii) the abuse of positions of trust or confidence, as exemplified in the
law of trusts and fiduciary obligations generally;
(iii) the insistence upon rights in circumstances which make such
insistence harsh or oppressive as exemplified in relief from
penalties and forfeiture, the law of equitable set-off, and the refusal
of specific performance on the discretionary ground of hardship;
(iv) the inequitable denial of obligations, as exemplified in the doctrine
of part performance and the principle of equitable estoppel;
(v) the unjust retention of property, as exemplified in certain
constructive trusts and principles of subrogation
The relationship between CL and Eq
• James VI of Scotland
• The rise of
protestantism
• Absolutism of sovereign
– Divine Right of Kings
or King-in-parliament?
• Bacon & Ellesmere:
Earl of Oxford’s case
Earl of Oxford’s case
• The Office of the Chancellor is to correct
Men’s consciences for Frauds, Breach of
Trusts, Wrongs and oppressions, of what
Nature soever they be, and to soften and
mollify the Extremity of the Law ... [W]hen a
Judgment is obtained by Oppression, Wrong
and a hard Conscience, the Chancellor will
frustrate and set it aside, not for any error or
Defect in the Judgment, but for the hard
Conscience of the Party.
The legalisation of equity
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The Civil War – equity nearly destroyed
Lord Nottingham (1673-82)– father of equity
Lord Eldon – (1801-27) modern rules
Precedent and fixation
Appointment of VC
Poor administration
Infamous delay – record 16 years and still
interlocutory
17th Century changes
• Tenures Abolition Act 1660 – socage tenure
• An Act for Prevention of Frauds and Perjuries
1677 – now in the Conveyancing Act 1919
19th Century reforms
• Bentham and the ‘dog law’
• Judicature Acts 1870s – 1970s
• The two streams in one courtWindeyer J in Felton v Mulligan (1971)
124 CLR 367 at 392; [1972] ALR 33 at 46
• Fusion fallacies
• Salt v Cooper (1880) 16 ChD 545 at 549, Jessel MR said of the effect
of the Act:
• It has been sometimes inaccurately called 'the fusion of Law and
Equity'; but it was not any fusion, or anything of that kind; it was
the vesting in one tribunal the administration of Law and Equity in
every cause, action, or dispute which should come before that
tribunal. … To carry that out, the Legislature did not create a new
jurisdiction, but simply transferred the old jurisdictions of the
Courts of Law and Equity to the new tribunal, and then gave
directions to the new tribunal as to the mode in which it should
administer the combined jurisdictions.
Property in CL
• Universalized, reified, fetishized – the materialization
of the common law
• Formality
• Creation
• Transfer
• Rights recognised in contract and tort – breach of
contract, trespass, negligence
• Remedies for breach of property rights – damages
• CL makes orders about the property not the people
Property in Eq
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Substance
Conscience
Power
Responsibility – lunacy, infants, married woman
Trust and confidence
BUT through the logic of precedent not unfettered
discretion
• Rights recognised through doctrines of equity –
misrepresentation, undue influence, duress,
unconscionability, fiduciary relationships, part
performance, equitable estoppel, breach of confidence
• Remedies – injunctions, specific performance,
constructive trusts, personal orders
• Equity makes orders about the people not the property
Property in Eq
• Equitable property or interest (equitable
fee simple, mortgages, covenants etc)
• Personal Equities (Gill v Gill)
• Mere Equities (Latec)
Case study 1: When contracts go bad
• A (vendor) exchanges contracts with B (purchaser)
• A gets a better offer from C (he knows about B’s
offer) and completes the sale to C before B knows
• Common law approach? Breach and damages – no
property held by B
• Equitable approach: breach and specific performance
• But what about the property interests?
Case study 1: When contracts go bad
In common law B is not the owner as the
contract has not been completed so the
property cannot be returned
In equity, the rule in Lysaght v Edwards says that
B gets an equitable interest from the
exchange and that it is a form of constructive
trust, which can be enforced against C (when
he knows about B)
Case Study 2: Fat Henry and the problem
of trusts
• Henry and the purse
strings
• Taxation in Tudor
England – feudal
tenures
• Primogeniture
• Devising land by will
• The legal remainder
rules
The use
A --------------------------B --------------------C
(Landowner)
(feoffee to use ) (cestui que
use)
Legal estate Beneficial estate
CL
Equitable
The Statute of Uses 1535
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Collapse the use
Springing uses
The use on the use
Equity creates property where there was none
before……
Case study 3: Part performance and the
equitable ‘impersonation’
• A Lease for a factory – an agreement to create
a deed
• Or a mortgage created by deposit of title
deeds
• Or a promise to give a life interest if cared for
in dotage…
The requirements for writing
23B Assurances of land to be by deed
(1) No assurance of land shall be valid to pass an interest at
law unless made by deed.
23C Instruments required to be in writing
(1) Subject to the provisions of this Act with respect to the
creation of interests in land by parol: (a) no interest in
land can be created or disposed of except by writing
signed by the person creating or conveying the same, or
by the person’s agent thereunto lawfully authorised in
writing, or by will, or by operation of law, ….
The requirements for writing
54AContracts for sale etc of land to be in writing
(1) No action or proceedings may be brought upon any
contract for the sale or other disposition of land or
any interest in land, unless the agreement upon
which such action or proceedings is brought, or
some memorandum or note thereof, is in writing,
and signed by the party to be charged or by some
other person thereunto lawfully authorised by the
party to be charged…
CL says no deal
Part performance
• Equity looks to substance not form
• Was there an agreement?
• Did a party act under that agreement and performed an act to their
detriment which relates solely to the agreement?
• Is the agreement one which a court of equity would order specific
performance?
• If yes to all then equity creates an interest which is an equitable
impersonation or copy of the common law interest being claimed
• Maddison v Alderson (1883) 8 App Cas 467
• Walsh v Lonsdale (1882) 21 Ch D 9
• Cooney v Burns (1922) 30 CLR 216
• Chan v Cresdon Pty Ltd [1989] HCA 63; (1989) 168 CLR 242
• "An equitable mortgage (enforceable by an order for foreclosure or for
sale) can be made by a deposit of title deeds if they were deposited with
intent that the land which they concern shall be security for the payment
of a debt."
•
Theodore v Mistford Pty Ltd [2005] HCA 45; 221 CLR 612
Colonial Australia
• The status of the local
laws of a colony
depended upon
whether it was:
• a conquered colony; or
• a settled colony (terra
nullius- an empty land)
Colonial Australia
• Australia was treated as being settled as it was
considered to be unoccupied, that is, as terra
nullius
• No recognition of Aboriginal laws or customs
• Aboriginal land rights not recognised
Terra nullius
• International law of conquest, cessation or
settlement
• Effect of law of inhabitants
• Imperial authorities assumed settlement
theory
• Respect for native inhabitants
• Ambiguous position
Murrell’s case
• 1836 – definition of murder – arguments that
Murrell not subject to law of colony – not
settled – no protection afforded – no
recognition of independent power in a British
colony – no law but only lewd practices and
superstitions
Attorney General v Brown
• 1847 – challenge by coal miner of
ownership in the Crown – absolute
title in the Crown from 1788
Cooper v Stuart
• 1889 - PC – NSW was a “…tract of territory
practically unoccupied, without settled
inhabitants or settled law, at the time it was
peacefully annexed to the British
dominions…”
Mirrilpum v Nabalco
• 1970 – first land rights action – restraint of
mining without consent – Blackburn J – there
was a system of law but the issue was one of
law and not of fact – not a property holding in
any sense of the common law hence not
enforceable
Mabo No’s 1 and 2
• No 1 – interlocutory – preliminary issue concerning
validity of a declaratory Act by the Queensland
government to extinguish the title of the Murray
islanders – held to be in breach of the RDA
• No 2 – instituted 1982 decided 1992 – original
jurisdiction of the High Court
• Moynihan J of SC QLD for facts – found complex land
ownership – plots and gardens
• Decision (6:1) in favour of a concept of native title
Mabo No’s 1 and 2
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Terra Nullius
Found to not be a common law principle but of
international law – the true common law principle
is that of the law of settlements – Australia is
regarded as such a territory – all judges agreed that
Australia was settled, despite the fact of prior
occupation of Aboriginal people – hence the real
issue was the relevance of terra nullius to
Australian law – settlement is not a bar itself to
recognizing native title – sovereignty could not be
questioned
Mabo No’s 1 and 2
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Sovereignty
The sovereignty of Australia was not
challenged in the proceedings – indeed it
could not be so challenged by an Australian
municipal court
The original sovereignty of the native
Australians was not discussed – there was a
recognition that Aborigines had settled law
(hence that aspect of terra nullius was
rejected)
Mabo No’s 1 and 2
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What is native title?
The conquering or the settlement of as colony does
not automatically extinguish the rights of the original
inhabitants to land
Traditional Aboriginal occupancy of and connection
with the land by a people, in accord with a system of
laws and customs
Content of rights determined by those laws and
customs – includes rights to fish hunt and gather
(usufructory rights) – but is varied by particular laws
and customs – can evolve over time
Inalienable (except in accordance with the traditional
laws and customs)– can be surrendered to Crown
Mabo No’s 1 and 2
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How do you prove native title?
Existence of identifiable group
Traditional connection with or occupation of
land under laws and customs – spiritual
more than occupation – special and
exclusive ( 4 judges) – Toohey various
interests
Substantial maintenance of connection physical occupation not necessary
Mabo No’s 1 and 2
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How is it extinguished?
Crown did not take an absolute title but a radical
title, which gave sovereignty but not ownership –
native title is a burden
Radical title grants power to extinguish without
consent - clear and plain intention to extinguish –
freehold, leasehold extinguishes – pastoral leases?
No duty to pay compensation (3:3 split in majority
and Dawson J also in favour of no compensation) –
nt not accorded full respect
Constitution S 51(xxi)? – Only Deane and Gaudron
JJ
Mabo No’s 1 and 2
• How then can native title be
protected?
• RDA – immunity from wrongful
deprivation
Mabo No’s 1 and 2
• Fiduciary duty
• General obligation to protect
welfare – Toohey J – limitation on
Parliamentary omnicompetence
• Specific obligation to protect
property - no clear decision – Hints
in Brennan, Dean and Gaudron JJ
Native Title Act 1993
• Categorises acts – past acts after RDA and
before NTA –
• A – extinguish native title – grant of freehold,
commerical lease, public works
• B – extinguish to inconsistency – not A acts or
mining leases – not a commercial lease
• C – non-extinguishment – mining leases
• D – any act not A,B,C - easements licenses
and permits – non extinguishment
Native Title Act 1993
• Compensation on just terms for extinguishment
• Future acts – passing legislation after 1 July 1993
or the doing of some other act after 1 January
1994 – Permissible future acts – treat the same –
compensation payable for extinguishment
• Right to negotiate concerning future acts of
government – agreements accepted by NTT and
registered with FC
Wik and Thayorre People’s case
(“Wik”)
• Issue concerned the effect of pastorals leases
on land claimed by two clan groups – question
of extinguishment
• Wik peoples – pastoral leases do not confer
exclusive possession - are statutory creatures
and must be interpreted as such – no
language of extinguishment – look to the facts
of the grant
Wik and Thayorre People’s case
(“Wik”)
• Decision 4:3 in favour of the Wik and Thayorre
• Statutory Interpretation - clear and unambiguous
language – majority said that language of statute
and practical exercise of the lease the key
• History of Pastoral Leases – sui generis statutory
land holdings – not leasehold tenures and as such
no automatic right to exclusive possession
• Brennan CJ (minority) – ordinary technical use of
leasehold terms indicates intention for exclusive
possession
Wik and Thayorre People’s case
(“Wik”)
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Extinguishment – Majority said that no clear
intention in words of grant mean that no
extinguishment – Toohey, Gaudron and Gummow JJ
specific focus on exercise of rights and conflict with
actual Aboriginal custom – Kirby J only the grant
itself
Radical Title and reversion – even if the grant did
not extinguish did the reversion back to the Crown
extinguish? – Brennan CJ no way doctrine of estates
says that a reversion gets fill beneficial interest
hence extinguish – majority said look to the statute
– too much to automatically presume that doctrine
of estates applies
Suspension and revival - fiduciary duty - not
answered
Since Wik
• 10 point plan
• Yanner v Eaton [1999] HCA 53 – native title
includes the right to hunt fauna including
crocodiles for food and ceremony. The native
title protection overrules State law prohibiting
hunting because of s 109 conflict
• Commonwealth v Yarmirr (the Croker Island
case) - native title rights over the sea exist but
limited to traditional uses
Since Wik
• Western Australia v Ward [2002] HCA 28 –
evidence of native title
• Wilson v Anderson [2002] HCA 29 – no native
title in NSW Western lands division
• Yorta Yorta Peoples