1. Tenures and Estates Legal and Equitable Interests in Land Native Title
Assoc Prof Cameron Stewart

2. The Anglo-Saxon Invasions c500AD

3. The Battle of Hastings 1066

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

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. BOCKHAMPTON, COUNTY OF BERKS.
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. Henry II – the Father of the Common law
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

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

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

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. The relationship between CL and Eq
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

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

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
23B Assurances of land to be by deed
No assurance of land shall be valid to pass an interest at law unless made by deed.
23C Instruments 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
54A Contracts 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. Colonial Australia
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)

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

51. Attorney General v Brown
1847 – challenge by coal miner of ownership in the Crown – absolute title in the Crown from 1788

52. Cooper v Stuart
PC – NSW was a “…tract of territory practically unoccupied, without settled inhabitants or settled law, at the time it was peacefully annexed to the British dominions…”

53. Mirrilpum v Nabalco
1970 – first land rights action – restraint of mining without consent – Blackburn J – there was a system of law but the issue was one of law and not of fact – not a property holding in any sense of the common law hence not enforceable

54. Mabo No’s 1 and 2
No 1 – interlocutory – preliminary issue concerning validity of a declaratory Act by the Queensland government to extinguish the title of the Murray islanders – held to be in breach of the RDA
No 2 – instituted 1982 decided 1992 – original jurisdiction of the High Court
Moynihan J of SC QLD for facts – found complex land ownership – plots and gardens
Decision (6:1) in favour of a concept of native title

55. Mabo No’s 1 and 2 Terra Nullius
Found to not be a common law principle but of international law – the true common law principle is that of the law of settlements – Australia is regarded as such a territory – all judges agreed that Australia was settled, despite the fact of prior occupation of Aboriginal people – hence the real issue was the relevance of terra nullius to Australian law – settlement is not a bar itself to recognizing native title – sovereignty could not be questioned

56. Mabo No’s 1 and 2 Sovereignty
The sovereignty of Australia was not challenged in the proceedings – indeed it could not be so challenged by an Australian municipal court
The original sovereignty of the native Australians was not discussed – there was a recognition that Aborigines had settled law (hence that aspect of terra nullius was rejected)

57. Mabo No’s 1 and 2 What is native title?
The conquering or the settlement of as colony does not automatically extinguish the rights of the original inhabitants to land
Traditional Aboriginal occupancy of and connection with the land by a people, in accord with a system of laws and customs
Content of rights determined by those laws and customs – includes rights to fish hunt and gather (usufructory rights) – but is varied by particular laws and customs – can evolve over time
Inalienable (except in accordance with the traditional laws and customs)– can be surrendered to Crown

58. Mabo No’s 1 and 2 How do you prove native title?
Existence of identifiable group
Traditional connection with or occupation of land under laws and customs – spiritual more than occupation – special and exclusive ( 4 judges) – Toohey various interests
Substantial maintenance of connection - physical occupation not necessary

59. Mabo No’s 1 and 2 How is it extinguished?
Crown did not take an absolute title but a radical title, which gave sovereignty but not ownership – native title is a burden
Radical title grants power to extinguish without consent - clear and plain intention to extinguish – freehold, leasehold extinguishes – pastoral leases?
No duty to pay compensation (3:3 split in majority and Dawson J also in favour of no compensation) – nt not accorded full respect
Constitution S 51(xxi)? – Only Deane and Gaudron JJ

60. Mabo No’s 1 and 2 How then can native title be protected?
RDA – immunity from wrongful deprivation

61. Mabo No’s 1 and 2 Fiduciary duty
General obligation to protect welfare – Toohey J – limitation on Parliamentary omnicompetence
Specific obligation to protect property - no clear decision – Hints in Brennan, Dean and Gaudron JJ

62. Native Title Act 1993
Categorises acts – past acts after RDA and before NTA –
A – extinguish native title – grant of freehold, commerical lease, public works
B – extinguish to inconsistency – not A acts or mining leases – not a commercial lease
C – non-extinguishment – mining leases
D – any act not A,B,C - easements licenses and permits – non extinguishment

63. Native Title Act 1993 Compensation on just terms for extinguishment
Future acts – passing legislation after 1 July 1993 or the doing of some other act after 1 January 1994 – Permissible future acts – treat the same – compensation payable for extinguishment
Right to negotiate concerning future acts of government – agreements accepted by NTT and registered with FC

64. Wik and Thayorre People’s case (“Wik”)
Issue concerned the effect of pastorals leases on land claimed by two clan groups – question of extinguishment
Wik peoples – pastoral leases do not confer exclusive possession - are statutory creatures and must be interpreted as such – no language of extinguishment – look to the facts of the grant

65. Wik and Thayorre People’s case (“Wik”)
Decision 4:3 in favour of the Wik and Thayorre
Statutory Interpretation - clear and unambiguous language – majority said that language of statute and practical exercise of the lease the key
History of Pastoral Leases – sui generis statutory land holdings – not leasehold tenures and as such no automatic right to exclusive possession
Brennan CJ (minority) – ordinary technical use of leasehold terms indicates intention for exclusive possession

66. Wik and Thayorre People’s case (“Wik”)
Extinguishment – Majority said that no clear intention in words of grant mean that no extinguishment – Toohey, Gaudron and Gummow JJ specific focus on exercise of rights and conflict with actual Aboriginal custom – Kirby J only the grant itself
Radical Title and reversion – even if the grant did not extinguish did the reversion back to the Crown extinguish? – Brennan CJ no way doctrine of estates says that a reversion gets fill beneficial interest hence extinguish – majority said look to the statute – too much to automatically presume that doctrine of estates applies
Suspension and revival - fiduciary duty - not answered

67. Since Wik
10 point plan
Yanner v Eaton [1999] HCA 53 – native title includes the right to hunt fauna including crocodiles for food and ceremony. The native title protection overrules State law prohibiting hunting because of s 109 conflict
Commonwealth v Yarmirr (the Croker Island case) ­ - native title rights over the sea exist but limited to traditional uses

68. Since Wik
Western Australia v Ward [2002] HCA 28 – evidence of native title
Wilson v Anderson [2002] HCA 29 – no native title in NSW Western lands division
Yorta Yorta Peoples