Property Law in New South Wales: Tenure, Estates, and Native Title

Comprehensive vocabulary flashcards covering the fundamental principles of tenure, estates, and native title law in New South Wales based on the provided lecture transcript.

Doctrine of tenure

The central principle of English land law referring to the terms upon which the land is held.

Doctrine of estates

The central principle of English land law referring to the time for which the land is held.

Terra nullius

A characterization used in international law for territory that is considered to be 'nobody's land' and to have no recognisable law.

Australian Courts Act 1828

Legislation declaring that all relevant laws in force in England on $25\text{ July }1828$ were to be applied to Australia.

Subinfeudation

The process of creating multiple layers in the feudal relationship between a lord and a vassal.

Villeinage

An unfree tenure, later known as copyhold tenure, where tenants were subject to variable and uncertain services, heavy taxes, and fines.

Quia Emptores (1290)

An act that limited subinfeudation by allowing the substitution of one tenant for another through the alienation of land without a lord's permission.

Tenures Abolition Act (1660)

Abolished most forms of feudal incidents and converted most tenurial holdings to 'free and common socage'.

Socage tenure

The only form of tenure imported to NSW from England, requiring the payment of money by the grantee rather than the performance of services.

Quit rent

An annual payment of $5\%$ of the land's value ceasing after $20$ years, based on the practice of commuting agricultural services into money.

Radical title

The type of title held by the Crown post-Mabo (No 2) that permits the recognition of native title existing outside the tenurial system.

Freehold estate

An estate of uncertain duration, such as a fee simple, fee tail, or life estate.

Fee simple

The largest estate in land and the closest interest to absolute ownership possible; it is heritable and can theoretically last forever.

Determinable fee

A fee simple estate limited by a determining event that marks the boundary of the interest; if the event occurs, the fee reverts to the grantor.

Condition subsequent

A specified event that cuts short an already defined interest, giving the grantor a right of re-entry which they may choose to exercise.

Fee tail

An estate restricted to lineal heirs and often limited by gender which can no longer be created in New South Wales.

Estate pur autre vie

A life estate that lasts for the duration of the life of another person.

Doctrine of waste

A doctrine balancing the rights of the life tenant (who seeks to maximize return) and the remainder person (who wants value retained or increased).

Ameliorating waste

Conduct by a tenant that results in the improvement of the land.

Leasehold estate

An estate of certain duration, historically classified as personalty rather than realty.

Reversion

The interest retained by a lessor during the term of a lease or the estate left to a grantor after granting an estate smaller than the one they hold.

Vested remainder

A future interest where the right to possession is postponed but the interest is already given to a specific person.

Contingent remainder

A future interest that gives no interest until certain conditions precedent are satisfied.

Native title

The communal, group, or individual rights and interests of Indigenous people in relation to land or waters possessed under traditional laws and customs.

Inconsistency of incidents test

The test endorsed in Western Australia v Ward (2002) which requires a comparison of native title and statutory rights to determine extinguishment.

Past act

Legislative acts before $1\text{ July }1993$ or other acts before $1\text{ January }1994$ that might have been invalid due to the existence of native title.

Intermediate period acts

A concept introduced by the Native Title Amendment Act 1998 (Cth) to extend the circumstances in which native title could be extinguished.

Pastoral lease

A conditional grant made by statute that does not necessarily confer a right to exclusive possession and therefore may co-exist with native title.