MLL327 Study Guide - Final Guide: Seisin, Fee Tail, Fee Simple
24 May 2018
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Property Law Topic Six
• appreciate the fact that multiple-property interests can exist over a single piece of land as a consequence
of the doctrine of tenure
Doctrine of estates is an extension of tenure regime
• Land that is granted in tenure is defined and categorised by doctrine of estates
• Founding doctrine upon which land interests are fragmented (time) under the common law
• Classify interests according to how long they will last:
– Indefinite duration: freehold estates
– Specific duration: leasehold estates
• It encompasses:
– estates which are vested in title and possession
– interests where title is vested but possession is to vest at a future date
- Estate is interposed between lord and tenant
- Estate indicates an interest in land of some particular duration
- Property rights in land are projected upon the plane of time (Maitland)
- The lad itself is oe thing, and the estate in land is another thing, for an estate in land is a time in
lad, o lad fo tieWalsigha’s Case 1573)
• explain the basis of fragmentation according to time and the doctrine of estates which exists with respect
to interests in land
Temporal fragmentation of rights
• Following estates were recognised /distinguished by duration:
• Life estate: ends with holders death
• Estate in fee simple – deseds to holdes heis uestited
• Estate in fee tail – descends to a designated class of descendants (entailed) - usually to male
heirs
• Leasehold – when fee simple owner lets out the land for a specific duration of time
• An estate describes the duration of the relationship that a person has with land
• An estate confers upon the holder the right to use, enjoy, possess and alienate the land according to
the terms and rights set out under the grant
• Connecting link is seisin: tenant entitled to seisin of land and not ownership of land
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find more resources at oneclass.com
• distinguish between freehold and non-freehold estates
Historically, means a person who holds estate in a free status
• Freehold estates exist for an indefinite period of time
• Freehold estates are enduring – duration uncertain
• Holder of freehold is always seised of the estate in the sense of title and possession
• Seisin: Situation where a holder has both title and possession of the land
• Distinguishes freehold from leasehold
• Freehold estates are held in possession: (fee simple) or (life estate) with reversion or remainder (life
interests)
• Forms of freehold:
• fee simple
• Largest, highest and most absolute form of common law freehold estate over land
that can be created: lasts the longest in time
• Nearest to absolute ownership
• Fee: estate is capable of being inherited
• Simple: a pass to heirs generally (no class restriction)
• Endures indefinitely and is inheritable and freely alienable
• May be inherited by anyone
• For creation:
• A clear intention by transferor is required (and presumption)
• The appropriate words of limitation are set out
• At common law: use of word heis
• Absence of correct words it is assumed to be fee simple
• Transferor must hold fee simple estate (Nemo dat principle)
• Appropriate words of limitation in inter vivos disposition:
• to B ad his heis
• ‘efeee to estate as fee siple o fee suffiiet
• Presumption of fee simple as words of limitation, in absence of specific words
• Rebuttal of presumption:
• Transferor does not have fee simple; or
• Transferor intended creating a different interest (example, s 47 CA NSW).
• Absence of deed: equitable interest: assessment of settlos itetio ad o
statutory presumptions
• Torrens system of land registration: intention to convey fee simple is sufficient and
this will occur automatically on registration
• In all states, testamentary disposition deemed to be a fee simple
• fee tail (largely abolished and is read as an attempt to create a fee simple)
• life estate
• Freehold estate which will endure for duration of a life
• Exists indefinitely because uncertain when a person will die
• It is the shortest form of a freehold estate
• Words of limitation must be used to effect that interest is to continue for duration
of a human life
• Holder of a life estate holds usual proprietary rights, including the right to possession
of the property and the right to deal with property
• A life estate may be granted in two ways:
find more resources at oneclass.com
find more resources at oneclass.com
• a sa ie – meaning that it is to exist for the duration of the gatees life
• Eaple: To A fo life; alternatively
• pu aute ie though the life of aothe – meaning that it is to exist for the
duatio of a thid pesos life soeoe othe tha the gatee
• Eaple: To A duig the life of B
• Life estate pur autre vie was, however, not inheritable at common law
• If grantee dies but the life upon which it is base is still alive there is no provision under
common law for holder to pass the estate
• Upon death of grantee it can be acquired by seisin by occupation (general occupancy)
• Difficulty resolved by legislation
• Life estate pur autre vie can in terms of statutory provision be devised under will (s 5
WA 1958 (Vic))
• Life estate pur autre vie can pass with rest of estate to those entitled under will (s 26
WA 1958 (Vic))
• Above sections were repealed by Wills Act, 1997 (Vic)
• S 4 of the Wills Act permits popet to hih a peso is etitled at the tie of his
o he death to e devised:
• It appears to include a life estate pur autre vie
• A life estates pur autre vie is allowed to be passed with the rest of the estate to those
entitled under will
• explain the concept of future interests and the difference between reversion and remainder interests.
Future interests:
• Because a life estate is a limited interest there is need for determining future interests: what happens
with life estate once the life it is based upon ceases
• Deals with the surplus that arise where a life estate or a leasehold interest is created.
• Future interest vests when life estate or lease is created
• It is an interest which confers immediate title but defers possession until a future date
• Not a freehold estate because there is no immediate right to possession (absence of seisin)
• Title conferred is expected to become a freehold estate in future when possession eventually vests
• A future interest arises over an interest which will expire at a particular point in future:
– Death of holder of (life estate);
– Expiration of term (lease)
• When the life estate or leasehold expires, the life interest is elevated into a full estate
• There are two primary forms of future interests:
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Property law topic six appreciate the fact that multiple-property interests can exist over a single piece of land as a consequence of the doctrine of tenure. Doctrine of estates is an extension of tenure regime. Land that is granted in tenure is defined and categorised by doctrine of estates. Founding doctrine upon which land interests are fragmented (time) under the common law. Classify interests according to how long they will last: Estates which are vested in title and possession interests where title is vested but possession is to vest at a future date. Estate indicates an interest in land of some particular duration. Estate in fee simple des(cid:272)e(cid:374)ds to holde(cid:396)(cid:859)s hei(cid:396)s (cid:894)u(cid:374)(cid:396)est(cid:396)i(cid:272)ted(cid:895) Estate in fee tail descends to a designated class of descendants (entailed) - usually to male heirs. Connecting link is seisin: tenant entitled to seisin of land and not ownership of land distinguish between freehold and non-freehold estates.
