An Analysis of Australian Property Law: Fee Simple and Titles

This report provides an overview of Australian Property Law, focusing on key concepts such as fee simple and strata title. It explains the regulations governing property ownership, including the rights and responsibilities of property owners. The report delves into the specifics of fee simple, detailing its characteristics as an absolute tenure and the requirements for registration. It also examines strata title law, which governs multi-level apartment blocks and subdivisions. The analysis covers various aspects of the law, including the transfer of fee simple estates, the use of specific wordings for separation, and the distinctions between determinable and conditional fee simples. The report highlights the importance of registration, the exceptions to the provisions, and the impact of federal systems on property law. Additionally, it discusses the differences between determinable and conditional fee simple, including the implications of contingent events and breaches of conditions. The report concludes with a list of references to relevant books and journals used in the research.

Australian Property Law

TABLE OF CONTENTS
AUSTRALIAN PROPERTY LAW......................................................................................................1
REFERENCES.....................................................................................................................................3

AUSTRALIAN PROPERTY LAW
Australian Property Law is a legal system and provisions that regulate and prioritise interest,
rights and responsibilities of property owners. Australian Land Law in Context sets down rules and
regulations for real property1. Fee simple is an absolute tenure or a form of freehold ownership
which allows owner to dispose off at their will. I also studied Strata title law that refers to
ownership of multi-level apartment blocks and various subdivisions. It was first introduced in New
South Wales (NSW) in 1961 which comprises two acts, Strata Scheme Development Act 2015 and
Strata Management Act 2015. Through the thorough study of the law, I identified that the act
defined fee simple as the largest and closest estate to absolute ownership that a person can own2. It
is about tenure doctrine that prevents fee simple holder from such ownership and allow them to
fully alienate the property to other person or left it by a will.
After reading the legislation, I came to know that in order to claim to be registered as fee
simple estate, a person must apply registration. Besides this, if fee sample estate has been registered
or applied for registration, however, he is not entitled or be registered, claimed as owner of charge
in respect of present, vested or a contingent interest, then such party must apply to the director and
register the charge3. I also studied that the act also presents that registration is also required when a
registered charge is transferred by a person to another either conditionally or absolutely or
agreement between parties is modified or postponed. At the same time, I found some exception of
the provisions such as registration for fee simple could not be applied for subdivided land, parcels
under subdivision plans, non-contiguous parcels of un-subdivided land or parcels of un-subdivided
land when total area exceeds 800 hectare limit.
I learned that according to the federal system, in order to separate or transfer a fee simple
estate, specific words are required called words of limitation to give clear presentation such as name
of “transferee and his heirs”4. Here, transferee is the person to whom fee simple estate will be
1 Hepbum Samantha, Australian Principles of Property Law. (Routledge, 2013).
2 Bridge, Personal property law. (OUP Oxford, 2015).
3 Mohamad, M., et al, ‘ Strata Management Tribunal in Peninsular Malaysia: Comparison to Strata
Titles Board, Singapore and Consumer Trade Tenancy Tribunal, New South Wales, Australia,
(2015) 6(2) Mediterranean Journal of Social Sciences 293.
4 Troy et al, ‘It depends what you mean by the term rights’: strata termination and housing rights,
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alienated which is termed as words of purchase whereas “his heirs” indicate the word of limitation.
However, on the other side, I found that testamentary disposition does not require use of such
technical wordings because court discovers testator intention for transferring the fee simple estate.
Here, it must be noted that creation and alienation rules (inter vivos) does not apply in respect of
freehold property and land in Australia under Torrens system. After careful and detailed assessment
of the law, I came to know that a fee simple may be of two kinds, determinable and conditional.
First automatically terminates on a contingent event which may or may not take place whereas
conditional/defeasible fee simple is subjected to a specific condition. Thus, in such case, granter
retains his own interest, known as “right of re-entry” in the will5. In case of determinable fee, if
event takes place then, grantor does not need to exercise any action to revert back the assets.
However, in conditional fee simple, if the condition is breached or violated, then grantor needs to
exercise “re-entry right” to bring it to an end. Moreover, determinable fee right for void conditions
or event automatically fails due to uncertainty. However, in conditional fee, if it is breached then it
will be treated as determinable rights.
2017. 32(1) Housing Studies 1-16.
5 Easthope et al, ‘How property title impacts urban consolidation: A life cycle examination of multi-
title developments. (2014) 32(3) Urban Policy and Research 289, 304.
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REFERENCES
Books and Journals
Hepbum Samantha, Australian Principles of Property Law. (Routledge, 2013).
Bridge, Personal property law. (OUP Oxford, 2015).
Mohamad, M., et al, ‘ Strata Management Tribunal in Peninsular Malaysia: Comparison to Strata
Titles Board, Singapore and Consumer Trade Tenancy Tribunal, New South Wales,
Australia, (2015) 6(2) Mediterranean Journal of Social Sciences 293.
Troy et al, ‘It depends what you mean by the term rights’: strata termination and housing rights,
2017. 32(1) Housing Studies 1-16.
Easthope et al, ‘How property title impacts urban consolidation: A life cycle examination of multi-
title developments. (2014) 32(3) Urban Policy and Research 289, 304.
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