Fragmentation of Proprietary Interests

Native Title, Doctrine of Estates

LA2015 Week 3

From last week…

NATIVE TITLEFragmentation by system

The collision of two systems of landholding

Native title is easily extinguished

Evolution of Native Title (Under the Act)

• Constitutional?• Can states overrule

native title?• Implied

extinguishment?• Crown sovereignty vs

title? • Pastoral lease grant

change underlying title?

• Connection extinguishment

• WA v Cth• WA v Cth

• WA v Cth• Fejo

• Wik

• Yorta Yorta

http://www.nntt.gov.au/Mediation-and-agreement-making-services/Geospatial-services/Maps/Pages/National-Maps.aspx6/3/08

http://www.nntt.gov.au/Mediation-and-agreement-making-services/Geospatial-services/Maps/Pages/National-Maps.aspx26/3/08

FRAGMENTATION BY TIMEThe Doctrine of Estates

Apply law re contractual restraints on alienation of

freehold

Policy context of future interests, perpetuities

Differentiate legal v equitable estate

Possession is the root of all title

Creation of freehold estates

PLA s29 Words of limitation• (1) A disposition of freehold land to any

person without words of limitation, or any equivalent expression, shall pass to the disponee the whole interest which the disponor had power to dispose of in such land, unless a contrary intention appears in the disposition. …

• (3) This section applies to dispositions effected after the commencement of this Act.

LTA 61 Requirements of instrument of transfer

(1) An instrument of transfer for a lot or an interest in a lot must—(a) be validly executed; and(b) include particulars sufficient to identify—

(i) the lot to be transferred; or(ii) the lot to which the interest applies; and

(c) include an acknowledgment of the amount paid or details of other consideration; and

(d) for an interest in a lot—include a description sufficient to identify the interest to be transferred.

Life estate: balancing rights and responsibilities

Consider the risk to the

reversioner of a grant of

a life estate…

PLA 25 Equitable waste

An estate for life without impeachment of waste shall not confer, or be deemed to have conferred, upon the tenant for life any legal right to commit waste of the description known as equitable waste, unless an intention to confer such right expressly appears by the instrument creating such estate.

Difference b/w condition & determinable limitation…

• Your adult child keeps joining a commune of one sort or another, and giving all their income to whichever commune they join at the time.

• You are a diehard supporter of the Geelong Wildcats and one of your adult children has been living with a Brisbane Lions supporter for some time. The thought of your property going to a Lions supporter makes you feel sick.

• One of your children has always been interested in following you into the family profession of the law. You have indicated that you will reward them if they enter the profession. This child has taken their time about becoming qualified, and you wish to hurry them along.

• Your oldest child is your favourite. They can do no wrong in your eyes and you want to make sure that they get their fair share of your land.

Limitations/conditions will be void if…

• Immoral behaviour

• Restricting right to marry

• Uncertainty

• **Restraint on alienation

• Zapletal v Wright• Andrews v Parker• Andrews v Parker?

• Sifton v Sifton

• Re Dugdale• Saliba v Saliba• Hall v Busst

Reversion

Remainders

Vested or contingent?

X owns estate in Greenacre in fee simple & grants:

• to A for life, then to B for life • to A for life, then to B for life, then to C for life

then to D and his heirs• to A for life, then to B and his heirs if B

reaches the age of 21

The rule against

perpetuities is the Court’s

approach to limiting the

vesting date of future interests

FRAGMENTATION BY JURISDICTION

Equity -> ‘equitable rights’Common law -> ‘legal

rights’Statute -> either legal or

equitable

Fragmenting the one estate