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Week 6 Fragmentation of Proprietary Interests in Land - Coggle Diagram

- - - - Each tenant owned (and still owns) not land but an estate in land.
      - Each common law estate - whether the fee simple, the fee tail, or the life estate - comprised a time-related segment of the bundle of rights and powers exercisable over land
      - http://www.austlii.edu.au/au/cases/cth/FCA/2000/191.html
      - North J also noted that leaseholds were originally not part of the doctrine of estates but were created by contractual rights and were enforceable through contractual remedies. However, leaseholds were eventually incorporated into the doctrine of estates
    - - Gumana v Northern Territory (2007) 153 FCR 349 APL 3.12
        The fee simple is the most extensive and if not for the doctrine of tenure, the holder of the estate would be the absolute owner.
      - inheritable, transferable & unqualified
        
        See section 3.12 of text; the word fee indicates that the estate was one of inheritance, while the word simple means that under the old law the estate was capable of passing to heirs generally and was not, as in the case of the fee tail, restricted to a particular class of heirs
        
        The modern law permits the fee simple estate to be freely disposed of inter vivos or by will.
      - Th e fee simple is the greatest interest in land recognised by the common law and is the closest it comes to recognising absolute ownership. 3.12 of text
    - - The fee tail is rarely used in Australia. In Queensland the fee tail can no longer be created at all.
        Inherited by lineal descendants
        
        Property Law Act 1974 (Qld) s 22 - not used in QLD
    - - The life estate could take one of 2 forms
        
        (a) granted for life of the grantee
        
        (b) granted to the life of a person other than the grantee–as estate pur autre vie.
    - - We will consider leasehold estates in LAWS12066 Land Law
  - - - Property Law Act 1974 (Qld) s 22, 29(1)-(2) after 4 December 1952.
  - - - Zapletal v Wright [1957] Tas SR Supreme Court of Tasmania
        
        The judge below found that the defendant in creating the joint interest in the property intended to confer a gift on the plaintiff but subject to the following condition (a condition subsequent): if the plaintiff should cease to cohabit with the defendant, her interest in the property would cease.
        
        In the end, the condition subsequent was void as tending to promote immorality (contrary to public policy) because it was intended to bind the plaintiff to the defendant and induce her not to leave him.
        Therefore, the plaintiff took her interest as joint tenant by gift free of the void condition.
      - Bondi Beach Astra Retirement Village Pty Ltd v Gora (2011) 82 NSWLR 665, which also touches upon the issue of public–private tensions in the context of restraints on alienation.
      - When will a condition be void
        
        Uncertainty
        
        Unduly restricts the right to marry
        
        Illegal
        
        It substantially restricts the right of the grantee's right of alienability
        
        Conducive to immoral behaviour
  - - - categories
        
        • Permissive waste
        
        • Voluntary waste
        
        • Ameliorating waste
  - - - s 55 Registering life interests and remainders
  - - - reversion arises whenever the holder of the freehold estate grants a lesser estate to a grantee and thus does not dispose of his or her entire interest in the property.
      - A owns in fee simple grants a life estate /interest to B. A has a future interest called a reversion because the property (right to possession) returns (reverts ) to A.
      - has a future interest after a life interest
    - - A remainder arises where a grant is designed to take effect on the natural termination of an earlier possessory freehold estate
      - A owns in fee simple grants a life estate to B, and remainder then to C. C has a future interest called a remainder. ( FEE SIMPLE SUBJECT TO A LIFE ESTATE).
      - Basically a future interest
      - vested interest
        
        one to which a person is presently entitled to possess,
        or one that is bound to take eff ect in possession at some future date
        
        two requirements
        
        the precise
        identity of the person who is to take the interest must be ascertained;
        
        there must be no condition precedent to this interest falling into possession other than the regular determination of the prior particular estate or estates.
      - contingent interest
        
        contingent interest may or may not take eff ect in possession because some contingency must be met before vesting occur
- - - - Property Law Act 1974 (Qld) s 7
  - - - trustee at law has a right to possession, while the beneficiary has no right to possession
      - beneficiary's rights are enforced through Equity
      - content of the equitable interest, which the beneficiary has, is '...to compel the trustee to hold and use his legal rights in accordance with the terms of the trust.'
      - trustee has a fiduciary duty to manage the trust property in as profitable a way as possible but the trustee is not to profit himself as a consequence of being trustee
      - law has recognised different types of trusts
        
        implied (resulting) trusts
        
        constructive trusts
        
        express trusts
    - - Purefoy v Rogers
      - The rule against perpetuities is a legal rule which means that any trust can only exist for a predetermined timeframe, being 80 years. Any trust that purports or attempts to last for a longer period of time is void. The exception to this rule is for trusts created with charitable objects. All jurisdictions except South Australia have retained a rule against perpetuities, otherwise known as the rule against remoteness of vesting.
        https://www.navado.com.au/sydney/lawyers-solicitors/asset-protection-and-trusts-law/the-rule-against-perpetuities.html
        
        The common law rule against perpetuities has been modified by legislation in all jurisdictions, except South Australia where the rule has been abolished.
      - Property Law Act 1974 Part 14
  - - - Property Law Act 1974 (Qld) s 30(1)
- - - - Property Law Act 2007 (NZ) repealed Property Law Act 1952 (NZ)