LAW 1506 Lecture Notes - Lecture 3: Demesne, Intimate Relationship, Socage
23 May 2018
School
Department
Course
Professor
Tenure
1. General concepts
a. feudal system
• Introduced into England by Wm the Conq
• Personal relationship of dependency between tenant and lord, not the tenant and the
land (Brennan J in Mabo No2)
b. Distinguished from allodial ownership (outright)
c. Land is 'held of' the Crown- rather than the Crown owning all land
• Landowners hold the land of the crown as tenants and may alienate their land further,
creating subtenants (subinfuedation) remains in AU
• Relationship between a lord and his tenant is one of mutual duties- in return for
tenure, tenant provides the lord with services and a right to incidents does not apply
in AU.
• System of social order- pyramid with Crown granting to 'tenants in chief' in
exchange for services. Tenants in demesne (mesne lords) ---> peasants (villeins) at the
bottom actually farming the land
d. Incidents- Ts&Cs of land use
• Military/ religious- high burden
• Socage- lowest burden- services commuted to money payment
2. Tenure in Australia
a. Crown Leases
• Wiki Peoples v QLD, Gummow J: Pastoral leases have the feature of common law bit
are creatures of statute
b. Assumed that when Australia was settled it was Terra nullius AG v Brown; Milirrpum
• Mabo No 2 Rejected assumption of terra nullius; Tenure doctrine not best application
to colony, but is a fundamental aspect of Australian law
• Common law recognises Crown had radical title (sovereignty), but this not the
same as allodial title
o Cannot exclude indigenous inhabitants
o Common law recognises native title as a burden on radical title
o Tenure applies to every crown grant of an interest in land, but does not prevent
recognition of title in cases not dependent on crown land
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