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Amendments to Outdated Provisions

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Amendments to Outdated Provisions CONTENTS Estates tail ............................................80 Submissions ..................................80 Reform of Legal Estates and Trusts of Land Barring the entail ...........................81 Conversion provision with limited savings provisions .........................82 Special rules of inheritance ..................83 The enlargement of long leases to freehold title ..........................................84 Purpose of section 153 ..................84 Current use of the provision ..........84 Should the provision be retained? .85 Is section 153 still operative? ........86 Chapter 6 Transitional provisions ...................87 Merger ..............................................88 Amendments to Section 185 ...................................88 Merger and the Torrens System ....89 Outdated Provisions How the Registrar deals with merger ...................................89 Presumptions of survivorship ...............90 Alien friends ..........................................91 Meaning of terms ..........................91 Interaction with Commonwealth legislation ............92 Submissions ..................................93 Married women ....................................94 Husband and wife to be counted as two persons ................95 Property rights of married women .............................95 Power for court to bind interest of a married woman ......................97 Debt enforcement .................................98 Making land liable to satisfy debts ..................................98 Section 208(1) .......................98 Powers and responsibilities of the sherrif ..................................99 Section 208(2) .......................99 Section 208(3) .....................100 Section 208(4) .....................101 Section 219 .........................101 Section 220 .........................101 Registration of debts to bind land ......................................101 Sections 209–212 ...............102 Sections 214–215 ...............103 Other obsolete provisions in Part III ..........................................104 Section 213 .........................104 6 Sections 216–218 ...............104 79 Chapter 6 Amendments to Outdated Provisions ESTATES TAIL 6 6.1 The different legal estates in freehold land that can be created in Victoria are discussed in Chapter 5.1 6.2 Until 1886, it was also possible to create a fee tail estate, which is a freehold estate limited to the (traditionally male) descendants of a grantor.2 A fee tail estate was used as a method of keeping property in the same family for generations. It is also known as an ‘entailed estate’. Whether created by limitation or by trust, an entailed interest is a ‘settlement’ which attracts the provisions of the Settled Land Act 1958 (Settled Land Act).3 6.3 It has not been possible to create an estate in fee tail in Victoria since 1886.4 It is not possible to create a fee tail estate in New South Wales, Queensland, the Northern Territory or Western Australia either.5 These jurisdictions went further than Victoria and converted existing fee tails to fee simple estates. 6.4 Victoria did not take this extra step, and a fee tail created before 1886 can still exist in this State, subject to provisions in Part VI of the Property Law Act 1958 (Property Law Act) which allow the tenant for life to ‘bar the entail’ and convert it into a fee simple estate.6 6.5 In 1984, Jude Wallace reported that only two entailed estates in registered land were believed to still exist in Victoria.7 In order to establish if this is still the case, we have consulted with Land Victoria. They have run searches on the Torrens register but are unable to conclude with certainty whether or not any entailed estates currently exist in Victoria. Perpetual, formerly Perpetual Trustees, has advised us that they know of no entailed estates still in existence in Victoria.8 SB U MISSIONS 6.6 In our Consultation Paper we asked whether the remaining estates tail should be left to run their course or, alternatively, whether they should be converted by statute to fee simple estates.9 6.7 Of the submissions that addressed the issue, Associate Professor Tehan and colleagues wholly supported conversion to fee simple.10 The Law Institute of Victoria ultimately supported conversion in the context of modernising and simplifying the law, though they observed that it is not unreasonable to maintain the status quo.11 Mr Macnamara submitted that, as the extent of the continued existence of estates tail is unknown, the precise effect of the conversion cannot be known.12 6.8 We believe that the introduction of a conversion scheme with the limited savings provisions already found in other Australian jurisdictions will address any concerns about the possible adverse effects of converting any existing fee tails. 6.9 Implementing our recommendation will close off extensive transitional arrangements in Part VI which have been in force since the creation of fee tail estates was abolished 125 years ago. 80 Victorian Law Reform Commission - Review of the Property Law Act 1958: Final Report BRN AR I G THE ENTAIL 1 See [5.5]–[5.6]. 9 Victorian Law Reform Commission Review 2 For example: ‘to A and the heirs of his of the Property Law Act 1958 Consultation 6.10 To explain the implications of converting body’. Section 249 of the Property Law Paper (2010) [3.52]–[3.58]. Act 1958 (Vic) states that if such an 10 Associate Professor Maureen Tehan et al, existing estates tail to fee simple estates, we estate is created, it is deemed to give the Submission 9, 15. first need to give a brief history and explanation grantee an estate in fee simple. 11 Law Institute of Victoria, Submission13, 9. of ‘barring the entail’. 3 Settled Land Act 1958 s 8(1)(b)(i); see 12 Mr Michael Macnamara, Submission 2, 2. discussion in Chapter 5. Historically, 13 Northern Ireland Law Commission, Land the use of the fee tail estate was never Law Consultation Paper No 2 (2009) 6.11 The practice of ‘barring the entail’ has the effect common in Australia owing to different 53–55. of converting the fee tail to a fee simple and economic and social circumstances. Some commentators consider that ‘the 14 Vested future interests are existing eliminating the interests of successors in tail continued recognition of the fee tail estate property rights which will vest in and the interests of the ‘remainderman’ and in some States seems only to reflect a possession when the intermediate interest 13 perverse legislative desire not to interfere (for example, a life estate) granted comes ‘reversioner’. The rights of these parties are with antiquities’: Adrian Bradbrook et al, to an end. An example of a vested at the centre of this discussion, as they are the Australian Real Property Law (Lawbook interest is ‘to A for life, remainder to B’. th 14 Co, 4 ed, 2007) 51, 477. B holds a current interest in land which potential beneficiaries of vested future interests. will vest in possession on A’s death. See 4 Transfer of Land Statute Amendment Act discussion of legal future interests in 1885 (Vic). 6.12 Historically, the execution of a ‘disentailing Chapter 5. 5 Conveyancing Act 1919 (NSW) s 19; 15 15 Traditionally, the tenant in tail ‘barred the assurance’ had the effect of barring the entail. Property Law Act 1974 (Qld) s 22; Law of entail’ through the use of the ‘common Property Act 2000 (NT) s 22; Property Law There were situations when a lesser interest recovery’ or the ‘fine’. These methods Act 1969 (WA) s 23. known as a ‘base fee’ resulted from barring were put on a statutory footing in the 6 Property Law Act 1958 (Vic) Part VI. 16 Fines and Recoveries Act 1833 (Eng) the entail. The resulting ‘base fee’ barred the Robinson contends that the effect of the under which a tenant barred the entail on Imperial Acts Applications Act 1980 (Vic) the execution of a ‘disentailing assurance’. interests of the successors in tail but not the which repealed De Donis Conditionalibus 17 For a detailed explanation see C Harpum interests of the remainderman and reversioner. (the imperial statute from which the et al, Megarry and Wade The Law of Real fee tail estate originates) was to convert Property (Sweet and Maxwell, 7th ed) 6.13 In the above circumstances, there is still a any remaining fee tail estates existing in (2008) [3.070]–[3.078]. Victoria to fees simple: Stanley Robinson, 16 This was due to the use of the less possibility of an heir (‘possibility of issue’) to Property Law Act (Victoria) (Lawbook effective ‘fine’ as a method used to Co, 1992) 492. This view is not however stop the reversion or remainder interests from bar the entail or the failure to obtain supported by other academic texts or required consent to bar the entail from a becoming vested interests. This is because a ‘base Jude Wallace: Bradbrook (2007), above ‘protector’. fee’ is an estate which continues ‘for so long as n 3, 52; Brendan Edgeworth, Sackville & Neave Australian Property Law (LexisNexis 17 Northern Ireland Law Commission (2009), the entail would have continued had it not been Butterworth, 2008) [3.14]; Jude Wallace, above n 13, 53–55. barred’18 that is, for so long as the possibility of Review of the Victorian Property Law Act 18 Bradbrook (2007), above n 3, 51. 1958 (1984) 316. issue existed. Once the grantee and all issue are 19 Ibid. 7 Wallace (1984), Ibid. There is a remote 20 Northern Ireland Law Commission (2009), 19 possibility that an unbarred entailed estate dead, the estate reverts to the grantor. above n 13, 53–55. created prior to 1886 still
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