The Fragmentation of proprietary interests in land

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Property refers to the bundle of rights over things exercisable against others. These rights may be divided among persons in many ways. This umbrella topic discuss four such divisions, or fragmentations:

  1. Doctrine of tenure: division of land based on space.
  2. Doctrine of estates: division of land based on time.
  3. Doctrine of trusts: division of land based on fiduciary obligations.
  4. Native title: systemic division based on Indigenous claims over land.

This article is an umbrella topic within the subject Property, equity and trusts 1. It provides basic information and links to a number of more specific topics.

Contents

Doctrine of tenure

Full article: Doctrine of tenure

The doctrine of tenure is division of land based on space. The doctrine's legal effect is:

  • The crown is the owner of all the land. No one has absolute ownership.
  • Rather, landowners hold the land 'of' the Crown as tenants (therefore tenure). They may then alienate their land further, creating subtenants (subinfuedation).
  • The relationship between a lord and his tenant is one of mutual duties. In return for tenure, a tenant provides the lord with services and a right to incidents.
  • The doctrine of tenure does not strictly apply in Australia, but some parts remain:
    • The concept of the Crown owning all the land and freeholders not having absolute ownership remains.
    • The concept of mutual duties and obligations (services and incidents) does not apply.

Doctrine of estates

Full article: Doctrine of estates

{he 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.

Native title

Full article: Native title


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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.

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