MLL327| Property Law
Topic 4: Doctrine of Tenure

Topic 4: The Doctrine of Tenure
English Feudal Tenure
1. What is Tenure?

Tenure = grant of land from lord to tenant in exchange for
service or fee

Tenure = relationship between lord and tenant rather than
tenant and land

All land vests in the Crown

All other interests are derivative grants

“The Crown is the source of title to all land…no subject can
own allodialism, but only an estate or interest in it which he
[sic] holds immediately or immediately of the Crown.”
Blackburn J per Milirrpum
2.
English Feudal History

1066 William the Conqueror asserted sovereignty over
England

Gave land to faithful lords in exchange for fealty (pledge of
allegiance) and promises of military and other services.

Grant of land from the sovereign lord was known as tenure

Lords were tenants in chief who divided it among lesser
tenants via subinfeudation

A lord granted his vassal a fief, or estate

A social institution

Tenants owed specific obligations to Lord

Free tenure: landholding in exchange for a particular service:
o Knight tenure = military services
o Frankalmoign tenure = to religious bodies in
exchange for spiritual welfare

Unfree tenure: tenant at will of Lord in exchange for
performance of menial services
A.
Subinfeudination

Tenants who wanted to transfer land had to get permission
and pay a fine.

Instead they subinfeudinated

Tenants could sublet creating a feudal chain
B.
Decline of Feudal Estates

Many types of tenures eg Socage
S.P.Brown| 212175898
Over time, services were replaced with fixed money
payments
C.
Statute of Quia Emptores

In 1290 The Statute of Quia Emptores gave the tenure
holder the right of free alienation.

In 1540, the Statute of Wills gave tenure holder right to
dispose by will

Ability to transfer without permission or fee ie free alienation
incorporated by statute

“Land held of the Crown in fee simple may be assured in fee
simple without fine and the person taking the assurance shall
hold the land of the Crown in the same manner as the land
was held before the assurance took effect (PLA s18A).

Effects of this:
o Modern tenure relationship
o When Crown grants land, the recipient acquires
tenure as tenant in chief.
o All landowners are tenants of the Crown
o But no services of fees due to the Crown
o Land is freely alienable
o Statute of Quia Emptores and equivalents do not
apply to leases and life estates which are a form of
subinfeudination
3.
Introduction of English Feudal System into Colonial Australia

English feudal tenure allowed military strength and complex
chains of interdependence

Reflection of social, economic and political times

Why then did colonial Australia adopt a feudal tenure regime?
o Feudal notion of absolute Crown ownership had no
relevance outside Norman England (Brennan J in
Mabo )
o USA colonialists crafted their own system
A.
Principles of Settlement

For purposes of determining applicable English law the
common law divided colonies into those acquired by:
(a) settlement
(b) conquest; and
(c) cession
pg. 24
MLL327| Property Law



B.
Settlement: received as much of the law of England as was
applicable to the colonists own situation and the condition in
the infant colony (Australia) (Cooper v Stuart)
Conquest or treaty: laws of the conquered remained in place
until such time as those laws were replaced by the laws of the
invader (Campbell v Hall)
Common law property doctrines were introduced in Aus
when the British Crown claimed sovereignty over Aus
o Doctrine of tenure: ultimate title in realm is
vested in Crown; all interests in land are granted
by the Crown
o Doctrine of estates: citizen owns merely an estate
in land
Settlement

Settlement principle is appropriate to land that was
unoccupied or unpopulated (terra nullius)

The Crown could acquire terra nullius under Tenure doctrine

Indigenous people had inhabited Aus 40, 000-60 000 years
before. Land, therefore, not deserted and uncultivated

Doctrine of terra nullius had to be extended to inhabited land

Application of doctrine of extended terra nullius
questioned/contestable

Enquiry in to which aspects of English law were applicable to
Australia: however,
o feudal doctrine of tenure; and
o doctrine of estates are part of Aus law
o (A-G v Brown, Cooper v Stuart, Mabo v Qsld (2) and
Wik Peoples v Qsld)
C.
Colonial Statutory Grants

Early governors had express powers to issue land grants

Statutory land grants- conferred broad unregulated
discretion for grantees to do what they wanted

Individualised land grants with specified restrictions

No reciprocity between Crown and tenant
4.
Settlement Summary

Terra Nullius - Crown therefore has full beneficial ownership
over the land despite indigenous inhabitants
S.P.Brown| 212175898
Topic 4: Doctrine of Tenure
o


Feudal framework provides convenient (racist)
fiction
Reverence towards imperial England perhaps out of isolation
and despair
Colonial statutory grants no feudal concept of exchange, more
land grant with some restrictions
The Nature of Crown Ownership in Australia
1. Pre-Mabo

Doctrine of terra nullius – Australia uninhabited and capable
of settlement

Therefore subject to the common law including doctrine of
tenure

Upon acquisition of sovereignty, the Crown gained full
beneficial ownership of all land and no interest in the land
could be created/held unless granted by the Crown. This
effectively ruled out any native title claims. (Milirrpum:
Blackburn J)
A.
Case Law

"It has always been a fixed principle of English law that the
Crown is the proprietor of all land for which no subject can
show a title. When colonies were acquired the feudal
principle extend to the lands overseas" (Williams v A-G for
NSW)

“…every square inch of territory in the colony became the
property of the Crown. All titles, rights and interests whatever
in land which existed thereafter in subjects of the Crown were
the direct consequence of some grant from the Crown"
(Milirrpum v Nabalco Pty Ltd)

The above decisions suggested that Crown has absolute
ownership

Doctrine of tenure is an essential principle of Australian land
law and that it is far to late in the day to contemplate an
allodial or other system of land ownership (Mabo (2))
pg. 25
MLL327| Property Law
Topic 4: Doctrine of Tenure
Case: Mabo v Queensland (No. 2) per Brennan J

HELD: Acquisition of sovereignty does not equal acquisition
of beneficial title

When the Crown acquired sovereignty over Australia, it
acquired radical title subject to the property rights of the
indigenous inhabitants.

HELD: Crown acquires “radical title” – a constitutional power
allowing the Crown to grant rights in relation to land

HELD: Crown can grant rights in land to itself – this is the only
way it can get full beneficial title to land
2.
Tenure and Radical Title

The Crown has radical title to all lands – can grant interests in
land (creating tenure relationships)

Native title does not depend on a grant from the Crown

It co-exists as a burden on the Crown’s radical title.

Thus native title survives the acquisition of sovereignty

Native title arises where proof of a continuing cultural
connection with the land can be established.

Crown’s radical title could be burdened by the native title
encumbrance but could be elevated to full and absolute
ownership where native title was extinguished

Native title may be extinguished where Crown has issued an
inconsistent land grant
S.P.Brown| 212175898
pg. 26