Property Law.docx - Common Law and Equitable Interests Doctrine of Estates \u2022 \u2022 \u2022 There are two types of estates freehold and leasehold There are

Property Law.docx - Common Law and Equitable Interests...

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Common Law and Equitable Interests Doctrine of Estates There are two types of estates: freehold and leasehold. There are three types of freehold estates : fee simple, fee tail, and life estate. There are four types of leasehold estates : fixed term, periodic tenancy, tenancy at will, and tenancy at sufferance. Fee Simple “Fee” denotes it is inheritable. “Simple” denotes that succession is not restricted or limited. It is the largest estate known to the law. It is the closest to absolute ownership. It is an inheritable estate, capable of descending to the widest range of heirs. It is freely alienable during the life of the holder. Fee Tail All fee tails became fee simple estates: Conveyancing Act 1919 NSW, s 19 . Life Estate Not an estate of inheritance, because it endures only for the life of the person on whom it is conferred. Ordinary life estate is simply “To A for life.” Often used in the context of retirement villages. Pur autre vie is a proprietary interest that is dependent on the life of some other person: “To A during the life of B.” This is often used to confer an interest in a family member. For example, Adam is given use of a family home for as long as his mother lives. Doctrine of Waste Waste means permanently altering the land and the doctrine exists to protect the interests of the grantor (a tenant in reversion) or the grantee (the tenant in remainder) in a life estate. Remedies include injunction, damages and restitution. Permissive waste is a failure to attend to the upkeep of the property by allowing it to fall into disrepair. Voluntary waste is an act of positive damage to the property, such as the opening and exploitation of mines and the cutting down of timber. Ameliorating waste is when the life tenant makes some changes to the land in a way that enhances its value. For example, in Doherty v Allman (1878) 3 App Cas 709 , the life tenant converted a disused corn store into housing resulting in a considerable increase in the value of the land. No damages were awarded as there was no loss. Equitable waste gives the court in equity to stop waste, even if the waste is legal under common law. This is recognised under Conveyancing Act 1919 (NSW), s 9.
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Leasehold Interests Leasehold interests are not considered to be estates in land, but as contractual interests. Leasehold interests are a type of personalty known as ‘chattel real’. The primary difference between a leasehold interest (temporal limit) and a freehold interest (for life or in perpetuity) is its duration. Determinable and Conditional interests A determinable fee will end on the occurrence of the specified event. For example, “To A for life, or until he becomes bankrupt and then to B and his heirs”. Words indicative of a determinable fee include while, during, until, so long as and for as long as.
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