Reflective Study: Fee Simple Rights in Australia - A Legal Analysis

This reflective study explores the concept of fee simple rights within the context of Australian property law. It examines the evolution of these rights, particularly focusing on the impact of the Strata title system and relevant legislation, such as the Act 1961 and the Retail Leases Act 1994. The report analyzes the interplay between fee simple ownership, government regulations, and the rights of property owners, highlighting the complexities and challenges involved in managing real estate. It delves into how the Australian Constitution, specifically section 51, influences property rights and the limitations imposed on these rights, as well as the role of common law in shaping property ownership. The study also touches upon the complexities of Strata title developments, the role of government in regulating property, and the ongoing efforts to simplify property laws for both residents and developers, referencing key legal cases and scholarly articles to support its arguments.

Running head: REFLECTIVE STUDY
REFLECTIVE STUDY
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1REFLECTIVE STUDY
In common law countries, fee simple rights is definitely the law that is related to the
freehold ownership in the real estate land and property. Australia is one of the countries which is
adapting to the community living lifestyle very fast. The Strata title comprises of various
jurisdiction boundaries that facilitates the construction of laws which are fair and perfect1. In
order to incorporate the fee simple rights, the development along with the ownership for the
individuals can subsist under the residential, retail, commercial, caravan parks, service
apartments, resorts and others. This particular principle came into being by the Government of
New South Wales which faced troubles to borrow cash from the residential entities which were
given on lease legally. Act 1961 was enacted on 1st July 1961 (Commonwealth of Australia,
2012). Though the retail lease came into reality in 1994 by the New South Wales Government, it
presently excludes no one from paying lease for a residential or commercial land or construction.
All these actions were regarded as a common law for everyone who resides in the country.
Fee simple rights in the constitution of Australia engages in a fundamental endeavor for
making ownership and structure of the lease payment much simpler and easier with little bit
inhibition of the government. As per section 51 of the Australian Constitution, it is held that all
the owners of the property rights are determined and is about to be altered as per the
governmental rules and regulations2. But part 2 of the act denotes that a leased out retail
construction cannot be advertised as per the disclosure form enumerated in the contract of Strata
title. It is proposed according to section 4 (1) of the NSW act 1994, that the firstly the nature and
type of the estate has to be considered prior to making changes or alterations in the land
dynamics. The Australian constitution states that all the land units which are made to be part of
or already a part of the fee simple, must be strong enough to refer it as a common land. It also
1 Sherry, Cathy. Strata Title Property Rights: Private governance of multi-owned properties. Routledge, 2016.
2 Act, C. O. R. P. O. R. A. T. I. O. N. S. "the Constitution." Constitution (2019): 13.

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denotes that anyone who purchases or gives on rent, will be having a part ownership of the total
land without any subsidiaries. However, it can not be denied that the government or the
constituents of the Strata title will be still having the final rights as well say on the land3.
Considering the complex nature, structure and organization of the fee simple rights, there must
be compliance and conformity of all the legally bound activities indicated and listed by the Strata
title4. The Government of Australia together with the residents are moving together with an aim
to simplify the complexities and complications involved in the real estate. With the help of
several strict laws and acts, the jurisdiction is successful to some extent to control and manage
the problems that appear due to the implementation of the fee simple regulation.
3 Douglas, Kathy, Rebecca Leshinsky, and Peter Condliffe. "Conflict in strata title developments: the need for
differentiated dispute resolution rules." Adel. L. Rev. 37 (2016): 163.
4 Johnston, Nicole, and Eric Too. "Impediments to Effective Strata Governance." Multi-Owned Property in the Asia-
Pacific Region. Palgrave Macmillan, London, 2018. 65-82.

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References:
Act, C. O. R. P. O. R. A. T. I. O. N. S. "the Constitution." Constitution (2019): 13.
Douglas, Kathy, Rebecca Leshinsky, and Peter Condliffe. "Conflict in strata title developments:
the need for differentiated dispute resolution rules." Adel. L. Rev. 37 (2016): 163.
Johnston, Nicole, and Eric Too. "Impediments to Effective Strata Governance." Multi-Owned
Property in the Asia-Pacific Region. Palgrave Macmillan, London, 2018. 65-82.
Sherry, Cathy. Strata Title Property Rights: Private governance of multi-owned properties.
Routledge, 2016.