Week 4 Flashcards
(34 cards)
The doctrine of tenure has 4 dimensions
- Width
- Length
- Height
- Time (Freehold and leasehold estates)
An Estate is regarded as either
a freehold or leasehold estate
what is freehold interest
Indeterminate estate in Land (can be held for an indefinite period of time
A freehold estate is a right of title to land that is characterized by two essential elements: immobility, meaning that the property involved is either land or an interest that is attached to or has been derived from land, and indeterminate duration, which means there is no fixed duration of ownership
Components of freehold interest
o Fee simple – Largest freehold estate fee (capable of being inherited) simple (no restriction on who can inherit the land)
o Fee tail - An estate inherited by family members (most jurisdictions convert such a grant to fee simple) (historical category) Can be used as a means of keeping land in the Family as alienation of the land is prevented
o Life estate – Estate granted to the life tenant from the fee simple for the life of the person nominated (lesser freehold estate)
what is fee simple
Fee simple – Largest freehold estate fee (capable of being inherited) simple (no restriction on who can inherit the land)
what is fee tail
Fee tail - An estate inherited by family members (most jurisdictions convert such a grant to fee simple) (historical category) Can be used as a means of keeping land in the Family as alienation of the land is prevented
what is life estate
Life estate – Estate granted to the life tenant from the fee simple for the life of the person nominated (lesser freehold estate)
- Estate limited by Reference to a period of time
e.g. lease for period of 3 years
o Fixed term
o Periodic
o At will
Explain determinable and conditional interests
o A grant of an interest in land without any conditions attached is regarded as Absolute
o A Determinable condition can be used to limit the duration of an estate by specifying certain circumstances, that will bring an estate to an end
o The form of words of the grant will determine it’s classification (Zapletal v Wright)
o Conditions – Can be used to limit the duration of an interest specifying the conditions that will bring the estate to an end (determinable) or create an estate (subsequent)
o Determinable condition – Regarded as part of the grant of the estate, if void will render the grant void
o Condition Subsequent – Regarded as separate to the grant of the estate, if void will make the grant absolute
Difference in conditions
Conditions – Can be used to limit the duration of an interest specifying the conditions that will bring the estate to an end (determinable) or create an estate (subsequent)
o Determinable condition – Regarded as part of the grant of the estate, if void will render the grant void
o Condition Subsequent – Regarded as separate to the grant of the estate, if void will make the grant absolute
Rights of owners of freehold estates:
Whatever the nature of the freehold interest estate, the Owner of the estate will have certain rights that are automatically attached to the interest
o Right to alienate their interest
o Right to receive any rents of profits
o To not commit waste (common law and statuary requirement)
Right of owners of an estate in fee simple:
o Right to alienate – right to sell, lease or mortgage
o The right to things necessary for the reasonable use of the land
o Right to create lesser interests in the land e.g. life estate or lease
explain the doctrine of waste and its components
In order to prove waste you must prove and injury to the inheritance
o Permissive waste – Failure to act, not liable unless an expressed requirement of the grant
o Voluntary Waste – An act committed by the life tenant that has damaged the land. The life tenant will be responsible for the waste unless the grant expressly exempts the life tenant from such damage that may be caused to the land (liable unless exempt by grant)
o Equitable waste – Flagrant and wanton destruction, liable for damage unless the grant expressively exempts the life tenant of such damage
what is permissive waste
Permissive waste – Failure to act, not liable unless an expressed requirement of the grant
what is voluntary waste
An act committed by the life tenant that has damaged the land. The life tenant will be responsible for the waste unless the grant expressly exempts the life tenant from such damage that may be caused to the land (liable unless exempt by grant)
what is equitable waste
Flagrant and wanton destruction, liable for damage unless the grant expressively exempts the life tenant of such damage
define future interests
Future interests = interest in which possession is postponed until some precondition permitting possession is met
components of future interest
Freehold Estates (outright ownership of land): o Possession
o Reversion – the residue of the freehold estate after a lesser estate has been granted - future interest left in a transferor or his (or her) heirs. A reservation in a real property conveyance that the property reverts back to the original owner upon the occurrence of a certain event. A future interest left in a transferor or his (or her) heirs. E.g. fee simple after granting of life estate
o Remainder – A remainder will terminate an earlier freehold estate and is postponed by the existence of an existing estate in possession. A remainder is vested or continent (present interest to future enjoyment)
Common law rules regarding contingent legal reminders:
- The remainder was void unless supported by a particular estate – this required that there could be no gap between interests
- A remainder after fee simple was void. In other words, once the fee simple remainder was granted, the fee simple estate being the most absolute estate, no further interest could be created
- A remainder was void unless it followed a prior particular estate. In other words, artificial conditions could not be placed on lesser interests in order to shorten ownership
- The contingent remainder had to be capable of vesting during the existing possessory estate. In other words, the condition on the remainder could not be such that there could not be a gap between interests
Rule against perpetuities: (page 52*)
Freedom of property v restraint for future generations
Common Law rule – the future interest must vest no later than 21 years after the life in being at the creation of the interest
o The modern common law rule against perpetuities seeks to impose a limit on the time between the creation of the future interest and the vesting of that interest by requiring that “the future interest vest no later than 21 years after the life in being at the creation of the interest”
Class gifts – One way of extending the perpetuity period is to give a class gift – the interest is not granted to an individual but to./ a group of people that are yet ascertained e.g. grandchildren who would obtain at the age of 18
*But if an interest vests outside the period the whole gift will fail
Explain ‘class gifts’
Class gifts – One way of extending the perpetuity period is to give a class gift – the interest is not granted to an individual but to./ a group of people that are yet ascertained e.g. grandchildren who would obtain at the age of 18
*But if an interest vests outside the period the whole gift will fail
consequences of breaching rule against perpetuities
Where there are a series of successive interests a prior invalidated interest will invalidate the next interest
difference between legal and equitable interests
o Legal interests – formalised (enforceable against the world at large)
o Equitable interests – absence of formality
Examples:
Trusts
o Settlor (original owner) – trustee (legal owner) – beneficiaries (equitable interest)
Purchaser under a contract
o Seller (legal interest) – purchaser (equitable interest)
Explain the ‘requirement of writing’
Conveyance or dispossession of land must be made in writing.
An Oral (Parol) contract for the dispossession of land is unenforceable unless there is evidence of part performance
o The ‘Doctrine of past performance’ read Regent v Millett (page 57*)
Explain the hierarchy of equitable remedies
o Equitable interest – interest looks like a right to property
o Mere & equity – some characteristics to the right to property but not the extent of an equitable interest (e.g. right to have sale set aside was mere equity: Latec Investments v Hotel terrigal
o Personal and equity – Right has property characteristics (e.g. right under contract to affix posters was a personal right the right was not connected to the land: King v David Allen
