PROPERTY LAW – “SEMINAR” 4.1

PROPERTY LAW – “SEMINAR” 4.1

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PROPERTY LAW – “SEMINAR” 4.1 (DRAFT 1) THE DOCTRINE OF TENURE AND ESTATES Doctrine of tenure Historical development o Doctrine of Tenure – Feudal concept-dates back to William the Conqueror (and before). o King (as sovereign of all land) gave land to tenants in chief in return for services (such as a share of agricultural products, provision of soldiers in future battle campaigns, etc.). o Tenants of Chief were able to grant land to lesser tenants etc. – This process was known as Subinfeudation. o System of “feudalism” – Lord had also provided protection in return for tenants’ services, so not just granting only land by itself. Subinfeudation - King (crown) > Tenants in chief > Lesser Tenants > Even lesser tenant. The incidents to tenure were things that tenure had to do for the immediate paying of a … (???). Non-free tenures – Were not free land holders but more so based on the bottom of the hierarchy. o However, over time, the tenure system, increasingly complex – So various statutory changes – 1290 Statute of Quia Emptores. Alienation – A tenant was able to exclude others from theland without the permission of their landlord. The process of subinfeudation was mostly eliminated in regards to the middle ranks. Everyone who owned land owns the land in respect to the Crown. o 1660 – Tenures Abolition Act - Abolished also all incidents of tenure were abolished, except socage. o Principles of “escheat” and “bona vacantia”. Escheat – Any tenants were usually given to someone and their heirs. If an owner died without heirs, the land went back to the Crown. Another way it could go to the Crown is if the tenure did not provide services to the Crown or any disloyal act to the Crown. It can also be the case if the tenant had defaulted (eg: The land of the tenant has been escheat to the Crown). However, this has been abolished in Australia, but has been replaced by Bona vacantia.
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Bona vacantia – If there is land where no one is to claim it, then that land cannot sit there ownerless. Therefore, it will divert back to the Crown Bona Vacantia. Doctrine of tenure – In Australia Assumption tenure applied in British colonies. Assumption also that Australia was terra nullius (empty land) – Rejected by Mabo . o British settlements claimed sovereignty upon Australia by settlement, which was assumed for years of how the British colonies claimed Australia. This can be done in three separate ways, which are: Settlement Succession Conquest o British claimed sovereignty of all land in Australia, meaning that the Crown had the title to all land and the Crown had the ability to issue grunts of land to whoever it pleases. Mabo v Queensland
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This note was uploaded on 09/27/2011 for the course FINANCE 1001 taught by Professor Profassorted during the Three '11 term at University of Adelaide.

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PROPERTY LAW – “SEMINAR” 4.1

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