by Megarry and Wade
Custom is best interpreter of laws: “optima est legum interpes constuetudo” when a custom is public, peaceable, uniform, general, continued, reasonable and certain and has lasted “time whereof the memory of man runneth to the contrary”, it acquires the force of law… Customary law can become as a ‘Valid’ source of common law title to land.
When the English crown acquired sovereignty of Australia it was by ‘Radical Title’. Radical Title does not confer a full beneficial title to any land. The idea that the crown cannot acquire lands in a newly settled country by discovery, and the settlement of its subjects therein, must be resort to the form of an Office to give him title, of serious refutation, continue to represent an accurate settlement of law.
Chapter One
Introduction to Real Property and Common Law Principles
It seems likely that the electronic transfer of title to land will be in the near future as content of the law of real property, as it evolves increasingly statutory; however it is in no sense a statutory code. It is essential for an understanding to have the substratum of common law and equitable principles upon which the statutory framework has been overlaid. Real Property deals with the rights and liabilities of land owners, whereas (State government) conveyance is concerned with how rights in land may be created and transferred. A study of the aspects upon the law on Human Rights is of the most importance as to the likeness to affect the future of law of real property, be it electronically.
A tenure means holding of land on certain terms and conditions. It refers to the manner in which the law allows a person to hold land. Points of tenure are rare in practice today but it is fundamental doctrine of land laws. Estates refer to the duration of a landowner interests. He may hold his land in fee simple, as absolute owner. It is through the principles of Equity to mitigated the rigour of the ancient common law in the interest of justice and at the expense of tradition and formality.
Interests in land are still classed as ‘legal’ or ‘equitable’. The study upon the Law of Property Act 1925, and of the development of registration of titles establishes the class of legal or equitable interest, be it of the protection of land charges, or the extension of overreaching. Registration of the manner of tenure – Celtic Theatre Group – considers whether it is possible to create new equitable interest and of how personal rights may effect third parties through the law of torts and for the disclosure of the imposition of constructive trusts.
Historical Foundations: Corporeal vs Incorporeal Hereditaments
The meaning of “Real Property” is historical. In early law, property was deemed “Real”. In general, all interests in land are “Real property”. Real Property is sub classified into corporeal (of things as minerals, tress) and incorporeal hereditaments are not things at all, but that of rights. The most important incorporeal hereditaments are easements and profits. If X forcibly evicted Y from his freehold (Estate in Fee Simple), Y could bring a “real action” by which he could obtain an order from the court that X should return the land to him. Leases are treated as personal business arrangements as a personal contract that creates a commercial transaction in sphere of money, so it does not create rights in the land itself which could attract such a feudal status.
Common law means the law which was applied to the country as a whole by the King’s ‘Ordinary Courts’. Centralised records were kept and a systematic body of doctrine develops through three central Royal Courts. Judge made rules and the common law include ancient statutes for the purpose of contrast with more modern parliament legislation. The Acts of Edward I had a significant effect on the development of “real property” where the “Statute of Quia Emptores” 1290 remains in force today.
Equity, Good Conscience, and the Role of the Chancellor
When certain interests are not protected by the Courts of common law, a form of equity (Registration of the manner of tenure -Celtic Theatre Group) can be presented through the Chancellor as the Royal official, therefore can dispense the Crown’s residuary powers of redressing wrong. It was the Chancellor who first compels trustees to carry out their trust, and also devise remedies for cases. For example as where one is ‘under duress’ and is forced into owing to a non-compliance with some corporate governing formality as where the result at common law would not have been equitable, offers Registration of the manner of tenure equitable rights to be established on grounds of Good Conscience.
The Chancellor would grant special remedies where the “Natural Justice” of the case required by special characteristics leads to the fundamental distinction between what is legal and what are of “equitable interests”. A manner of tenure -Celtic Theatre Group Registration vests the equitable title and has effect from the time when the application for registration is made. An inspection of the register will reveal the existence of many encumbrances, but there are some which binds a purchaser even though they are not protected by registration.
Impact of the Human Rights Act 1998 on Real Property
Though Common Law rights exist under the English rule of law, the Registration of the manner of tenure (Celtic Theatre group) to consider new innovated equitable rights to be established on grounds of Good Conscience, is to be wise with an open perspective upon the Human Rights Act 1998. The Act is intended to “give further effect of rights and freedoms guaranteed under the European Convention on Human Rights”; its court is in Strasbourg. The Act also has an impact on the law of Real property. That of interest being of Art 1/ the protection of property; and of Art 8/ right to respect for private and family life. Whilst a State Court in Australia is not bound by the Strasbourg court, but by Art 3/ primary and subordinate legislation must be read and given effect in a way compatible with the Convention Rights so far as possible to do. A court or tribunal may have to give it a meaning different from that which Parliament intended. One consequence of this requirement is that a court may be compelled to depart from an earlier decision that would otherwise be binding upon it as matter of precedent. An interpretation under Art 3/ has been described as “the prime remedial remedy”. Under sec 4/ If a court is satisfied that a provision of state government primary legislation is incompatible with a Convention right, it may so declare, and must apply the provision in that particular dispute. It is clear that a “resort to sec 4 must always be an exceptional course”. And there is “a strong rebuttable presumption in favour of an interpretation consistent with Convention Rights”.
It is provided by sec 6 of Act, subject to certain exceptions, it is unlawful for a corporate public authority to act in a way which is incompatible with Convention Rights. The Act creates a new cause of action in respect of such unlawfulness. A Public Authority includes a Court or Tribunal, and any hybrid public authority where it is necessary to make an assessment both of the function of the body as a whole, to ascertain if it is a public authority at all by the particular act in issue. Under sec 3 of the Act is to interpret legislation in a way that is compatible with conventions rights, they may also apply and develop the common law in a way that is compatible with Convention Rights, which can be binding as a matter of precedent.
Article 1 of the First Protocol: Property Protection and Proportionality
Article 1 of the First Protocol – “every Natural or legal person is entitled to the peaceful enjoyment of his possession”; in substance it guarantees the right of property. Art 1/ is concerned to protect property against the activities of the state. It draws a distinction between deprivation of possession and of the control of property. The state may take property if the public interest so requires on payment of compensation, treated as justifiable only in exceptional circumstances. A dispute can strike where an unfair balance is at stake, in particular when it imposes a disproportionate burden on the person deprived of his property. Legitimate objectives of public interest may call for less than reimbursement of full market value. Example as occurring under re-distributive (Covid 19) legislation, where a private citizen is required to transfer his property to another (QR Code), “what is not an actual expropriation may amount to what one might call a de facto expropriation ”. The quasi control of the use of property may in fact be one of deprivation. An economical balance is a stake!
A requirement that the deprivation as in the public interest is required for the State to show the requirement of proportionality between the means employed and the aim sought to be realised, and this requires that fair balance must be struck “between the general interest of the community and the requirements of the protection of the individual’s fundamental rights”. Decision to enact laws expropriating property will commonly involve consideration of political, economic and social issues on which opinions within a democratic society may reasonably differ wisely. Margin of appreciation available to the legislature in implementing social and economic policies should be a wide one, will respect the legislature’s judgement as to what is ‘in the public interest’, unless that judgement be manifestly without reasonable foundation. It is of the English Court that can ‘consider whether a domestic rule serves a legitimate aim and is proportionate! Where the Strasbourg court has itself carried out the exercise, its decision should be followed up and applied by the Royal Courts.
By control, where the intervention (Covid 19 emergency powers) complained of is characterised as control of property rather than as a deprivation of possessions, the situation is as of Art 1/ whether there has been a reasonable relationship of proportionality between the means employed and the aim sought to be realised. That of the right of the State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. Where the State could properly take the view that the benefit to the community outweighs the detriment to the individual, a fair balance will still have to be struck!
Article 8: Respect for Home and Personal Rights
Article 8/ of the Convention provides that “Everyone has the right to respect for his private and family life, his home and his correspondence”. Art 8 can cover a wide spectrum of personal interests in particular with attempts to evict persons from their homes, business premises or of a person’s office, any place where one is entitled to be free from arbitrary interference by public authority. The more serious the interference with the applicant’s rights, the greater the reason of public interest that are required to justify the states conduct. The margin of appreciation will be correspondingly narrowed. Art 8 sec 2, is concerned not only with questions of substantive law, but also with procedure. The issue of the applicability of Art 8 has arisen most accurately in proceedings for possession, brought by a public authority where the applicant has no proprietary or contractual right to remain in his home, whether because his tenancy or licence to occupy land has been terminated, or because he is deemed as a trespasser. By Art 8/ there must be a procedural safeguard which requires the evicting authority to establish proper justification for the serious interference with his rights. In English common law, this is the Doctrine of Habeas Corpus!
Chapter Two
Tenures and the Feudal Structure
The idea of Crown ownership is as perfect structure being imposed after the Norman Conquest 1066. It is described being owned by its various proprietors to be held from the Crown upon certain conditions. In this way the feudal pyramid was constructed from the top downwards, with the King at the apex and the actual occupants of the land at the base. In the middle were persons who both rendered and received services. The whole social organisation of the Kingdom was based on landholding for service. The King needed only to look to his “Tenants in Chief” and in their turn, to their immediate tenants. The Tenant in Chief was those who held directly of the King.
The King is Lord Paramount. The status of lordship was called seignory where the feudal services became to a certain extent standardised. Services were known as ‘tenure’, because it showed upon what terms the land was held (tenure, to hold-possession). A status of a tenure which is evolved to Estates in Fee Simple is of the land to be held for different periods of time, where the Crown might grant land to retain interest as a qualified form of ownership. All land is vested in the Crown; a subject can hold it only as tenant!!! Therefore, tenure is concerned with the terms upon which land is held. The estate determines for how long.
Definitions of Tenure and Types of Holding
TENURE. The mode or system of holding lands or tenements in subordination to some superior, which, in the feudal ages, was the leading characteristic of real property. Tenure is the direct result of feudalism, which separated the dormnium directum, {the dominion of the soil,) which is placed mediately or immediately in the crown, from the dominion utile, (the possessory title,) the right to the use and profits in the soil, designated by the term “seisin,” which is the highest interest a subject can acquire.
Tenure, in its general sense, is a mode of holding or occupying. Thus, we speak of the tenure of an office, meaning the manner in which it is held, especially with regard to (time, (tenure for life, tenure during good behaviour,) and of tenure of land in the sense of occupation or tenancy, especially with reference to cultivation and questions of political economy.
There was three main types of tenure at common law. (i) Tenures in Chivalry ; military, grand sergeanty and knight’s service. (ii) Spiritual tenure; frankalmoign and divine services and (iii) Socage; residuary. Other free tenures were of landed proprietors and independent farmers. Unfree tenures were of common labourers. Each form of tenure required the tenant to perform certain services in exchange for the land that had been granted to him. The most common type of tenure was that known as socage which was of a residual category of free tenure that was neither military nor spiritual. Whatever the tenure, land might be held for different periods of time. It may granted for life (as long as the tenant lived. In tail (for long as the tenant and his descendant lived), or in fee simple (for as long as the tenant or any of his heirs were alive). Each of these interests was known as an Estate, a word derived from status. Thus the Crown may grant land to A for an Estate in Fee Simple, which came more and more to resemble absolute ownership and its proprietor is commonly called the owner of the land. The Tenure is concerned with the terms upon which land is held. The Estate determines for how long.
Incidents of Tenure and Escheat
Each ‘form of tenure’ required the tenant to perform certain services in exchange for the land that had been granted to him. As there are certain “incidents” that attached to each form of tenure, as like to pay a “relief”. The amount of “relief depended upon the type of tenure ( as like paying rates). When an estate determined the land “Escheated” to the lord of whom the tenant held, the immediate lord was entitled to the land by virtue of his own Estate.
ESCHEAT. In feudal law. Escheat is an obstruction of the course of descent and consequent determination of the tenure, by some unforeseen contingency in which case the land naturally results back, by a kind of reversion to the original grantor, or lord of the fee. 2 Bl. Comm. 15…Also the land or fee itself, which thus fell back to the lord. Such lands were called “excadentice,” or “terrce excadentiales” Fleta, lib. 6, c. 1; Co. Litt. 13a.
Copyhold and Subinfeudation: Magna Carta to Quia Emptores 1290
A large proportion of England was held in villien tenure being registered through the Lords manor, where all were living by the Will of the lord and according to the custom of the manor. By 15th century the Royal Courts, beginning with the Court of Chancery began to protect tenants of villiens not only by custom, but at law as well which became by “tenure by copy of the court roll” or “Copyhold”. Copyhold could be transferred only by a process of “surrender and admittance” made in the Lord’s court. The transaction was recorded on the court rolls and the transferee had a copy of the entry to prove his title. He therefore held “by copy of the court roll”. Copyhold lands became valuable inheritance to their tenants and permanently ceased to be a source of much profit to their immediate Lords. Henry VIII tenure of the Commonwealth began.
In early times there were no theoretical limits to the number of intervening tenures between the King and the Tenant in “occupation” when land was almost the only form of capital wealth. The King may grant land to A, where A may grant to B, and B therefore grant to C. A and B would then become as “Mense Lords”. The system was called subinfeudation where that land was granted in return for some genuine and not a nominal service. By the Manga Carta 1217,c.39 was of objections by prohibiting alienations which left insufficient security for the (nominal-quasi) granted services. Dissatisfaction continued until the matter was resolved by The Statute Quia Emptores 1290. By it effect that no new tenures in fee simple could be created except by the Crown. Alienation by subinfeudation was prohibited. Existing tenures could be freely transferred from hand to hand and they could be extinguished as before by escheat or forfeiture. Quia Emptores 1290 is still in force today. While the whole archaic doctrine of tenure remains, it cannot be repealed. The statute operates every time a conveyance in Fee Simple is executed, automatically shifting the status of tenant from grantor to grantee. It ensures that all land held by a subject is held in tenure of the Crown either directly or indirectly. Escheat occurs whenever a freehold estate determines. Escheat is a principle inseparable from tenure, which ensures that land will never be without an owner. The Lord of the fee is the successor in title to the person who was lord in 1290. It is exceptionally rare for records of a Mense lordship to have been preserved for so long.
Modern Statutory Reforms and Radical Disclaimer
After the English Civil War and of the restoration of the Monarchy, the Tenures Abolition Act 1660 converted all tenures into free and common socage – often called freehold. The methods of conveying freehold land were quite different from those applicable to copyhold. Copyhold had the great merit that the books of the manor (Celtic Theatre Group) were a register of title. Its disadvantage in the mode of conveyance (surrender and admittance) made it impossible to convey freehold and copyholds by a single deed. By the Law of Property Act 1926, all copyhold land was converted into land of freehold tenure. Of the surviving feudal incidents that existed in relation to freehold, was that Escheat was not abolished . It will occur whenever a freehold estate determines. Escheat is a principle inseparable from tenure which ensures that land will never be without an owner. If there is no tenant of the land and no Mense lord it will return to the Crown.
The circumstances in which a freehold may determine so that the land Escheat.
(i) Where a landowner’s trustee is in bankruptcy or liquidation exercises his statutory power to disclaim the land.
(ii) Where a company’s property has vested in the Crown (in person of the Treasury Solicitor) as bona vacantia because the company has dissolved and the Crown has exercised its statutory right to disclaim.
(iii) Where the Crown made an in feudatory grant of a freehold subject to restrictions as the user of the land that are enforceable by a Right of Entry, and that Right of Entry has been exercised.
Disclaim The repudiation or renunciation of a right or a claim vested in a person or which he had formerly allegedly to be his. The refusal, or waiver, or denial, or renunciation of an interest or property imputed to a person or alleged to be his…
Of Estates; The act by which a party or “Group” refuses to accept an Estate (Vic Gov) which has been conveyed to him. Thus a trustee is said to disclaim who releases to his fellow trustees his estates, and releases himself from the trust.
In Patent Law; when the title and specification of a patent (Queen Victoria Letters Patent of the Constitution of the Commonwealth of Australia) do not agree, or when part of that which it covers is not strictly patentable, because neither new or useful, the patentee is empowered, with leave of the court, to enter a disclaimer of any part or either the title or the specification and the disclaimer is then deemed to be part of the Letters Patent or specification, so as to render them valid for the future.- Right of Entry has been exercised.
Corporate Dissolution and the Underlying Feudal Principle
On the dissolution of company governed by the Company Acts, statutes vested its property in the Crown in the person of the Treasury Solicitor as bona vacantia. Although in those circumstances, the Crown may disclaim the freehold, this has a “Boomerang effect”, because the land then Escheat to a different part of the Crown, the Crown Estate. – Crown Estates Act 1961 s.3 (8) which permits such grants. Although it has never been finally determined whether as Treasury Solicitor protects himself from any such liability, because the property is deemed never to have vested in him. The Crown Estate incurs no liability in respect of it unless it takes possession or exercise control over the property. Where the corporation dissolved (Gov) is not governed by the Companies Acts, there will be an Escheat of its Real Property. Leases owned by such a corporation will pass to the Crown under the Crown’s prerogative rights to bona vacantia, i.e personal property without an owner. Yet despite the sweeping changes made by statute, “the fundamental principles of the law of ownership of land remain the same as before the legislation of 1925. Land is still the object of feudal tenure: the Sovereign remains the Lord Paramount of all the land within the realm; every parcel of land is still held of some Lord and the greatest interest which any subject can have in land is still an Estate in Fee Simple and no more; as provided by statute Quia Emptores 1290. Our law has preferred to support one by one the practical consequences of tenure rather than to strike at the root of the theory of tenure itself. It remains possible that in rare cases not covered by the statutory reforms recourse may have to be had to the feudal principles which still underlie our land; as in the Case of Escheat.
The rules of leasehold (landlord and tenant) develop independently of the feudal system. Though it is a genuine tenure, it was never the part of the network of tenures which connected land ownership with the Crown. It forms a separate branch of law which will be explained in another synopsis. The basis of land ownership is to understand the classifications of estates, which will be of the next subject.
Ross~Krom
On Behalf of Ecclesiastical Celtic Theatre Group
