DOCTRINE OF ESTATES Legal and Equitable Interests Legal and equitable interests in the same lot can coexist Equitable interests in land must be created or disposed of in writing, signed by the person creating or disposing of the interest PLA ss 11(1)(a), (c) Eg - a trust THE DOCTRINE OF ESTATES GENERALLY An estate: · is an interest in land which exists for a period of time · involves a right of possession - presently or in the future · allows for present interests and a succession of future interests to be created Walsingham's Case LEASEHOLD Lease - legal interest for duration of time FREEHOLD Fee Simple General pointers: · The largest estate the Crown can grant a private individual . "Fee" means the estate is a freehold estate - one that is hereditable (inheritable) . "Simple" means there is no restriction as to who can take the land (as opposed to a fee tail) . A fee simple is "absolute" if there are no conditions attaching to the grant Creation - A disposition of freehold land without words of limitation, or any equivalent words shall pass .... the whole interest unless a contrary intention appears PLA s 29(1) > EG - "to A"; "to A in fee simple"; "to A and her heirs" Wills - a testator is presumed to pass the whole of the interest in the land unless a contrary intention appears in the will Succession Act 1981 (Qld) s 33K Transfer inter vivos - Precise words of limitation not necessary - it need only include a description suf f i cient to identify the interest to be transferred Land Title Act 1994 (Qld) s 61(1)(d) Adam McRae LLB303 - Real Property
Life Estate (smallest freehold estate) A right to possession for the duration of a named persons life: · At end - interest will revert back to the grantor (reversion) OR pass to someone else (remainder) . The measuring life - the tenants OR someone elses Creation - the following can occur: . "To A for life": A is the life tenant and the measuring life; reversion to grantor . "To A for life, then to C": A is the life tenant and the measuring life; remainder in fee simple to C . "To A for the life of B": A is the life tenant; B is the measuring life; reversion to grantor (an estate pur autre vie) o B's measuring life is a cestui que vie and retains no interest in the property Disposition - Grantor must (if hold fee simple) show express intention to dispose of life estate PLA s 29(1) Transfer - with court approval, a life tenant who holds a legal estate (life estate) may: . sell the fee simple . lease the land · mortgage the fee simple Trusts Act ss 6, 7, 31, 32 However, the capital (sale proceeds) must be preserved for the benefit of the fee simple owner How this works: a) Life tenant a statutory trustee: TA