Real Property: Estates, Title, Leases and Torrens
Estates and tenure
Australian land law derives from English tenure. Understand the doctrine of estates: fee simple, life estate, and leasehold. Freehold estates are held of the Crown; native title is recognised separately and may coexist with other interests, subject to extinguishment tests.
Torrens system
Most Australian land is under Torrens title. Key concepts include the indefeasibility of the registered proprietor's title, the exceptions (fraud, prior folio, misdescription, and statutory exceptions such as easements), and the role of caveats in protecting unregistered interests. The register is the source of title, not the deed.
Leases and co-ownership
Know the essential terms of a lease (exclusive possession, term, rent), the difference between a lease and a licence, and the covenants (quiet enjoyment, repair, assignment). Co-ownership may be joint tenancy (right of survivorship, four unities) or tenancy in common. Easements require dominant and servient tenements, and restrictive covenants must touch and concern land.
Traps
- Confusing indefeasibility of title with a guarantee that no prior unregistered interest exists.
- Forgetting that fraud must be brought home to the registered proprietor.
- Treating a licence as a lease despite exclusive possession.
- Missing the right of survivorship in joint tenancy.
Worked example
A purchaser buys Torrens title land without notice of an unregistered lease. On registration, the purchaser takes indefeasibly, subject to statutory exceptions. The unregistered lessee may have a caveatable interest, but if the lease is not protected by caveat and the purchaser registers without fraud, the lease may be defeated.