Tenures and Estates Legal and Equitable Interests in Land Native Title

1. Tenures and EstatesLegal and Equitable Interests in LandNative Title Assoc Prof Cameron Stewart

2. The Anglo-Saxon Invasions c500AD

3. The Battle of Hastings 1066

4. Sovereignty Absolute beneficial title Reception of laws Conquering Settling; Cessession Feudalism Norman Reorganisation

5. 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

6. 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

7. 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

8. 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.

9. 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

10. 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

11. 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 Henry II – the Father of the Common law

12. Parliament begins 1275 The use of statute as opposed to ordinance Nisi Prius Edward Longshanks Hammer of the Scots

13. 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

14. Land Reforms under Longshanks • Statutes of Westminster (1285) – De donis conditionalibus – fee tails • Quia Emptores (1290)– end to frankalmoin and end to subinfeudation

15. The Writ System • Bureacracy • Organisation of wrongs • Remedies • Popularity • Recording • Stare Decisis • Common law • Seisin

16. 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

17. 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”

18. 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”

19. 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

20. 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

21. 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

22. 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

23. 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”

24. 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

25. 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

26. Interests in Land that are less than freehold • Easements • Profits a Prendre • Restrictive Covenants • Mortgages

27. Around since Norman times Keeper of the King’s Conscience Cleric and Keeper of the Great Seal Member of Lords, Judge and Church The Office of the Lord Chancellor

28. 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

29. 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

30. 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 The relationship between CL and Eq

31. 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.

32. 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

33. 17th Century changes • Tenures Abolition Act 1660 – socage tenure • An Act for Prevention of Frauds and Perjuries 1677 – now in the Conveyancing Act 1919

34. 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.

35. 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

36. 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

37. Property in Eq • Equitable property or interest (equitable fee simple, mortgages, covenants etc) • Personal Equities (Gill v Gill) • Mere Equities (Latec)

38. 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?

39. 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)

40. Henry and the purse strings Taxation in Tudor England – feudal tenures Primogeniture Devising land by will The legal remainder rules Case Study 2: Fat Henry and the problem of trusts

41. The use A --------------------------B --------------------C (Landowner) (feoffee to use ) (cestui que use) Legal estate Beneficial estate CL Equitable

42. The Statute of Uses 1535 • Collapse the use • Springing uses • The use on the use • Equity creates property where there was none before……

43. 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…

44. The requirements for writing 23BAssurances of land to be by deed • No assurance of land shall be valid to pass an interest at law unless made by deed. 23CInstruments required to be in writing • 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, ….

45. The requirements for writing 54AContracts for sale etc of land to be in writing • 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

46. 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

47. 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

48. 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

49. 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

50. 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