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The Doctrine of Tenure Payments

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The Doctrine of Tenure Payments MLL327| Property Law Topic 4: Doctrine of Tenure Over time, services were replaced with fixed money Topic 4: The Doctrine of Tenure payments English Feudal Tenure C. Statute of Quia Emptores 1. What is Tenure? In 1290 The Statute of Quia Emptores gave the tenure Tenure = grant of land from lord to tenant in exchange for holder the right of free alienation. service or fee In 1540, the Statute of Wills gave tenure holder right to Tenure = relationship between lord and tenant rather than dispose by will tenant and land Ability to transfer without permission or fee ie free alienation All land vests in the Crown incorporated by statute All other interests are derivative grants “Land held of the Crown in fee simple may be assured in fee simple without fine and the person taking the assurance shall “The Crown is the source of title to all land…no subject can hold the land of the Crown in the same manner as the land own allodialism, but only an estate or interest in it which he was held before the assurance took effect (PLA s18A). [sic] holds immediately or immediately of the Crown.” Blackburn J per Milirrpum Effects of this: o Modern tenure relationship o 2. English Feudal History When Crown grants land, the recipient acquires tenure as tenant in chief. 1066 William the Conqueror asserted sovereignty over o All landowners are tenants of the Crown England o But no services of fees due to the Crown Gave land to faithful lords in exchange for fealty (pledge of o Land is freely alienable allegiance) and promises of military and other services. o Statute of Quia Emptores and equivalents do not Grant of land from the sovereign lord was known as tenure apply to leases and life estates which are a form of Lords were tenants in chief who divided it among lesser subinfeudination tenants via subinfeudation A lord granted his vassal a fief, or estate 3. Introduction of English Feudal System into Colonial Australia A social institution English feudal tenure allowed military strength and complex Tenants owed specific obligations to Lord chains of interdependence Free tenure: landholding in exchange for a particular service: Reflection of social, economic and political times o Knight tenure = military services Why then did colonial Australia adopt a feudal tenure regime? o Frankalmoign tenure = to religious bodies in o Feudal notion of absolute Crown ownership had no exchange for spiritual welfare relevance outside Norman England (Brennan J in Unfree tenure: tenant at will of Lord in exchange for Mabo ) performance of menial services o USA colonialists crafted their own system A. Subinfeudination A. Principles of Settlement Tenants who wanted to transfer land had to get permission For purposes of determining applicable English law the and pay a fine. common law divided colonies into those acquired by: Instead they subinfeudinated (a) settlement Tenants could sublet creating a feudal chain (b) conquest; and (c) cession B. Decline of Feudal Estates Many types of tenures eg Socage S.P.Brown| 212175898 pg. 24 MLL327| Property Law Topic 4: Doctrine of Tenure Settlement: received as much of the law of England as was o Feudal framework provides convenient (racist) applicable to the colonists own situation and the condition in fiction the infant colony (Australia) (Cooper v Stuart) Reverence towards imperial England perhaps out of isolation Conquest or treaty: laws of the conquered remained in place and despair until such time as those laws were replaced by the laws of the Colonial statutory grants no feudal concept of exchange, more invader (Campbell v Hall) land grant with some restrictions Common law property doctrines were introduced in Aus when the British Crown claimed sovereignty over Aus o Doctrine of tenure: ultimate title in realm is The Nature of Crown Ownership in Australia vested in Crown; all interests in land are granted 1. Pre-Mabo by the Crown Doctrine of terra nullius – Australia uninhabited and capable o Doctrine of estates: citizen owns merely an estate of settlement in land Therefore subject to the common law including doctrine of tenure Upon acquisition of sovereignty, the Crown gained full B. Settlement beneficial ownership of all land and no interest in the land Settlement principle is appropriate to land that was could be created/held unless granted by the Crown. This unoccupied or unpopulated (terra nullius) effectively ruled out any native title claims. (Milirrpum: The Crown could acquire terra nullius under Tenure doctrine Blackburn J) Indigenous people had inhabited Aus 40, 000-60 000 years before. Land, therefore, not deserted and uncultivated A. Case Law Doctrine of terra nullius had to be extended to inhabited land "It has always been a fixed principle of English law that the Application of doctrine of extended terra nullius Crown is the proprietor of all land for which no subject can questioned/contestable show a title. When colonies were acquired the feudal Enquiry in to which aspects of English law were applicable to principle extend to the lands overseas" (Williams v A-G for Australia: however, NSW) o feudal doctrine of tenure; and “…every square inch of territory in the colony became the o doctrine of estates are part of Aus law property of the Crown. All titles, rights and interests whatever o (A-G v Brown, Cooper v Stuart, Mabo v Qsld (2) and in land which existed thereafter in subjects of the Crown were Wik Peoples v Qsld) the direct consequence of some grant from the Crown" (Milirrpum v Nabalco Pty Ltd) The above decisions suggested that Crown has absolute C. Colonial Statutory Grants ownership Early governors had express powers to issue land grants Doctrine of tenure is an essential principle of Australian land Statutory land grants- conferred broad unregulated law and that it is far to late in the day to contemplate an discretion for grantees to do what they wanted allodial or other system of land ownership (Mabo (2)) Individualised land grants with specified restrictions No reciprocity between Crown and tenant 4. Settlement Summary Terra Nullius - Crown therefore has full beneficial ownership over the land despite indigenous inhabitants S.P.Brown| 212175898 pg. 25 MLL327| Property Law Topic 4: Doctrine of Tenure Case: Mabo v Queensland (No. 2) per Brennan J HELD: Acquisition of sovereignty does not equal acquisition of beneficial title When the Crown acquired sovereignty over Australia, it acquired radical title subject to the property rights of the indigenous inhabitants. HELD: Crown acquires “radical title” – a constitutional power allowing the Crown to grant rights in relation to land HELD: Crown can grant rights in land to itself – this is the only way it can get full beneficial title to land 2. Tenure and Radical Title The Crown has radical title to all lands – can grant interests in land (creating tenure relationships) Native title does not depend on a grant from the Crown It co-exists as a burden on the Crown’s radical title. Thus native title survives the acquisition of sovereignty Native title arises where proof of a continuing cultural connection with the land can be established. Crown’s radical title could be burdened by the native title encumbrance but could be elevated to full and absolute ownership where native title was extinguished Native title may be extinguished where Crown has issued an inconsistent land grant S.P.Brown| 212175898 pg. 26 .
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