Real Property Law Notes

Real Property Notes

Topic 1 - Tenure and Estates and Native Title

Real property is land and interests in land. Real property is subdivided into two further groups, corporeal hereditaments (tangible real property, ie land) and incorporeal hereditaments (intangible interests in land, such as easements, or rights of way).

Doctrine of Tenure – Holds that land is owned by the King, and tenure is the relationship between the tenant and king by which the tenant holds an interest in the land. – Mabo (No 2).

In Mabo (No 2) – HCA held that the British Crown’s acquisition of sovereignty in NSW did not extinguish customary native title. The Crown’s sovereignty gave it radical/ultimate/final title, though this title empowered the Crown to appropriate land to itself or alienate it to others.

As such, the doctrine of tenure only applies to land that has been granted or alienated by the Crown – only such land is held ‘of the Crown’.

Allodial Title - constitutes ownership of real property (land, buildings and fixtures) that is independent of any superior landlord – Native title may be considered a form of this.

Ownership – absolute ownership applies to chattels only, not land. Ownership of land equates to tenant to Crown.

Doctrine of Estates

Estates are bundles of rights and powers which are exercisable in respect of land. It is an interest in land based on an amount of time. Different estates are classified based on their duration and more than one estate can exist in any land at one time.

Freehold estates of uncertain duration are the ‘fee simple’ and ‘life estate’.

Life estate - an estate that ends on the holders death.

Estates in fee simple – most ample estate, inheritable,

Estate in fee - An estate that descended to the holders heir.

Freehold estate – inherited by holder’s heir upon death of holder. The owner of a freehold estate is described as an owner in fee simple.

A holder of an estate in fee simple can ‘carve out’ a piece of...