Estates

Question 1

What did the Land and Conveyancing Law Reform Act 2009 do?

Answer 1

• The Land and Conveyancing Law Reform Act 2009 has retained the concept that land is held in estates as opposed to “owned” absolutely.
• “An estate, loosely put, is the “time capsule” of ownership rights that one holds in relation to a piece of land, and which dictates:
  (a) the duration of that ownership, and
  (b) the limitations on that ownership that are based on the nature of the ownership itself rather than on any” other conditions (e.g., legal requirements). (DL)

Question 2

What does S9(3)(b) of the Land and Conveyancing Reform Act 2009 do?

Answer 2

retains the concept of an estate.:
1. Freehold estates
2. Leaseholds
3. Hybrids

Question 3

What does S9(2) of the Land and Conveyancing Law Reform Act 2009 do?

Answer 3

abolishes feudal tenure
“In so far as it survives, feudal tenure is abolished.”

Question 4

What does S10(1) of the LACLRA 2009 say?

Answer 4

The concept of an estate in land is retained and, subject to this Act, continues with the interests specified in this Part to denote the nature and extent of land ownership.

Question 5

What does S10(2) of the LACLRA 2009 say?

Answer 5

Such an estate retains its pre-existing characteristics, but without any tenurial incidents.

Question 6

Freehold estates:

Answer 6

• Freehold estates as they currently exist derive from the kind of freehold life interests held by freemen in feudal times (free tenants) which developed into an inheritable form of interest over time.
• Landholding rights that were capable of being inherited became known as “fees” (fee meant forever).
• last for indefinite period
• only exist in respect of land

Question 7

Life Estate

Answer 7

• It was most common in feudal times that land would be held for life in return for certain services and incidents.
• This became known as a life estate.
• Life estates now exist in equity only under section 11(6) of the Land and Conveyancing Law Reform Act 2009 - Part 4 trust.

Question 8

Fee Tail

Answer 8

• A fee that was restricted so that it could only be inherited by lineal blood descendants of the landholder was known as a “fee tail” because it was entailed (tailer= French for cut/tailor).
• The formation of fee tails is now abolished under the Land and Conveyancing Law Reform Act 2009:

Section 13(1):
The creation of a fee tail of any kind at law or in equity is prohibited.

Question 9

Fee Simple

Answer 9

• If a fee had no restrictions on its inheritability, it became known as a fee that was “freely inalienable” which in turn became known as a “fee simple”.
• A fee simple is provided for legislatively in the Land and Conveyancing Law Reform Act 2009.
• A “fee simple enjoys the greatest expanse of controlling rights and capacities of all the freehold owners.” (De Londras)
• It has been described as constituting “control rights that have the potential to last forever and that can be freely alienated.” (DL)
• The Fee Simple is now the only freehold estate in law.
• Section 11(2) of the Land and Conveyancing Law Reform Act 2009:
  “Freehold estate” means a fee simple in possession and includes:
  (a) determinable fee,
  (b) a fee simple subject to a right of entry or of re-entry….

Question 10

What are the 3 main types of fee simple?

Answer 10

1. Fee simple absolute
2. A determinable fee
3. Fee simple subject to a right to entry or of re-entry