Doctrine of estates

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The doctrine of estates is a division of land based on time. Multiple people may have different rights (either future or present) to the same piece of land. The types of estates are as follows:

  • Freehold estates:
    • Fee simple - greatest interest recognised.
    • Life estate - interest in land (right to possession) as long as the person lives. It then transfers to the remainderman, who receives a fee simple estate.
      • The life tenant can only alienate for the duration of his own life - once he dies, regardless of someone else buying the estate, it goes back to the remainderman.
  • Leasehold estates:
    • A lease for a fixed term of years
    • A periodic tenancy - lease until appropriate notice is given.
    • A tenancy at will - The landlord may ask the tenant to vacate ‘at will’, subject to a ‘packing up period’.
    • A tenancy at sufferance - when a leaseholder has refused to leave after expiration after paying.
      • The landlord can't sue in trespass or use self-help to remove the tenant, he has to apply to a court to recover possession of land.

This article is a topic within the subject Property, Equity and Trusts 1.

Contents

Required Reading

Edgeworth et all, Sackville and Neave's Property Law Cases and Materials, 8th edition, Lexis Nexis, 2008, pp. 200-5 [3.7]-[3.20].

Introduction

[1] The doctrine of estates is a division of land based on time. It allows multiple people to have interest in one piece of land for different times (ie, a in a leasehold the tenant has a present right to possession whilst the landlord has a reversionary or future right to possession).

The doctrine of estates was a natural progression from the doctrine of tenure. The common law created the ‘estate’ – a right to possession of land for a certain period of time. This was a brilliant innovation, as it permitted greater flexibility in the division of land.

Classification and Features

[2] Estates are classified into freehold and leasehold estates.

  • Leases were initially regarded as mere personal contracts between landlord and tenant.
  • Thus, they were not afforded the same protection as fee simple, fee tail and life estates (see below). In other words, leaseholders could not bring actions to recover land.
    • A leaseholder only had remedy for damages. They could not stop the landlord from removing them.
    • Thus arose the action of ejectment.

Types of estates

[3] Estates are usually separated between freehold estates and or leaseholds (also known as 'less than freehold'). The main difference in the past was that only freeholders could bring actions to recover land (see possession of land). Eventually, all estates eventually became alienable (transferable).

Freehold estates

There are three types of freehold estates:

  • Fee simple:
    • The greatest interest in land recognised by the common law. The estate continues indefinitely, regardless of the presence of heirs.
    • If the holder of the estate dies without making a will, the assets in the estate are to be sold by the administrator and distributed to the next of kin according to a statutory formula.[4]
  • Fee tail (abolished in Australia):
    • A fee tail was basically a fee simple that continues in succession so long as the land stays with specified descendants (ie, male heirs). It was created to ensure that the land did not fall upon illegitimate heirs, particularly those not from the testator’s bloodline.
  • Life estate:
    • A life estate was an interest in land granted to a person for life. It expired upon their death and transferred to the remainderman, who became a fee simple holder (see below for example).
    • A holder of a life estate can alienate his rights, but they will still expire on his death, regardless of who he alienates it to. At that point, that buyer will have to forfeit the land.

Leaseholds estates

Leaseholds are less than freehold. Their duration is certain or capable of being rendered certain. They are as follows:

  • A lease for a fixed term of years:
    • Expires automatically at the end of the period.
    • It has a defined duration.
  • A periodic tenancy
    • Doesn’t terminate until appropriate notice is given.
    • Doesn’t have a definite duration, but generally does in practice.
  • A tenancy at will:
    • The landlord may ask the tenant to vacate ‘at will’, subject to a ‘packing up period’.[5]
    • It has no defined duration.
  • A tenancy at sufferance.
    • The tenant takes possession of land lawfully pursuant to a lease, but overstays past expiration without paying.
    • The landlord cannot maintain an action for trespass, nor can he use self-help to remove the tenant, even if he uses reasonable force.
    • The landlord has to apply to a court to recover possession of land.

Example of life estate

Suppose A holds a fee simple estate. He wishes to convey a life interest to his wife, W, followed by a fee simple estate to his son, S. The following happens:

  • S acquires a fee simple immediately upon conveyance, even when W is alive.
  • However, S’s right (to ownership) does not accrue until W’s death.
  • During W’s life, S can convey land to a third party buyer, B.
  • However, S cannot convey an immediate right to possession unto B, as he does not have one himself.
  • S’s conveyance to B conveys a present right to future possession.
  • Thus, upon W’s death, the fee simple automatically transfers to B.
  • If S dies before W, W’s life estate will continue until her death. Upon W’s death, the fee simple will transfer to B.

End

This is the end of this topic. Click here to go back to the main subject page for Property, Equity and Trusts 1.

References

Property Textbook refers to Edgeworth et all, Sackville and Neave's Property Law Cases and Materials, 8th edition, Lexis Nexis, 2008.

Equity Textbook refers to Evans, Equity and Trusts, 3rd edition, Lexis Nexis, 2012.

  1. Property Textbook, p. 200 [3.7]
  2. Property Textbook, pp. 200-1 [3.8]-[3.10]
  3. Property Textbook, pp. 201-5 [3.11]-[3.20]
  4. Wills, Probate and Administration Act 1898 (NSW), s 61B(7)-(8)
  5. Landale v Menzies (1909) 9 CLR 89
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