Tenures and EstatesLegal 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

• 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 Coeur-de-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

• 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

• 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

• 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

• 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

• 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

• 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

• 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

• Around the 15th century• Function to repair the failings of Common law• Principles of Christian fairness/conscience• Maxims of equity– 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

• 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• 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

• 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 writing23B 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 writing54AContracts 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

• 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

• 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• 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• 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• 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”)

• 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