Thursday, May 2, 2013

HALSBURY'S LAWS OF AUSTRALIA 22 HISTORICAL FOUNDATION OF REAL PROPERTY IN AUSTRALIA. (c) LIFE ESTATES


[355-110] Life Estate The smallest estate of freehold recognised by the common law is the life estate. 1 A life estate is an estate which entitles the holder to possession of land for the lifetime of the grantee2 or the life of another person (as an estate pur autrie vie). 3 In the case of an estate autrie vie, the person whose life determines the duration of the estate is known as the 'cestui que vie' and the interest holder in possession was known as the 'tenant pur autrie vie' or tenant for life or lives. The cestui que vie, as the measuring life of the estate has no interest in the land unless otherwise granted an interest.4
An ordinary life estate is not an estate of inheritance (a 'fee'),5 although in the case of an estate pur autrie vie, statutory reform has modified this position. The right was always alienable, but only for the duration of the life of the cestui vie.6 Where the tenant for life or lives predeceases the cestui que vie, the estate of the tenant for life or lives may leave the interest by will7 or if he or she dies intestate, the interest forms part of the intestate's estate.8
In the Northern Territory and Queensland, if a tenant for life or lives, or a person who is in or comes into possession of land by, from or under the tenant or by collusion with the tenant, wilfully holds over any land after:
      1. termination of the tenancy; and
      2. demand has been made and written notice given by the person to whom the remainder or reversion of the land belongs or the person's agent lawfully authorised for the delivery of possession of the land,
the person holding over is liable to pay to the personkept out of possession of the land rent at the rate of double the market rent for the land detained for and duringh the time the person holds over or keeps the person entitled out of possession.9
1See Butt P, Land Law, 4th ed, Lawbook Co, Sydney, 2001, [1001]; MacDonald C, McCrimmon L and Wallace A, Real Property Law in Queensland, LBC Information Services, Sydney, 1998, p. 157.
2As to an ordinary life estate see [355-2070].
3As to an estate 'pur autrie vie' see Holdsworth W A, A History of English Law, 2nd ed, Vol II, Sweet & Maxwell, London, 1937, p 120. See also [355-2090]. The estate pur autrie vie has been abolished in the Australian Capital Territory: (ACT) Law Reform (Abolitions and Repeals) Act 1996 (repealed) s 3.
4See Butt P, Land Law, 4th ed, Lawbook Co, Sydney, 2001, [1005].
5See Bradbrok A J, MacCallum S V and Moore A P, Australian Real Property Law, 2nd ed, LBC Information Services, Sydney, 1997, [2.24], MacDonald C, McCrimmon L and Wallace A, Real Property Law in Queensland, LBC Information Services, Sydney, 1998, p 157.
6See Utty Dale's Case (1590) Cro Eliz 182; 78 ER 439. See also Co Litt 41b.
7Originally the right to devise an estate pur autrie vie was granted in the (IMP) Statute of Frauds 1677 s 12. Now, in all jurisdictions, a testator is able to devise all his or her real property: see SUCCESSION [395-1060]. Specific mention of an interest in an estate pur autrie vie as a devisable interest in property is made in:
(ACT) Wills Act 1968 s 7(2)(b)
(NSW) Succession Act 2006 s 4
(SA) Wills Act 1936 s 4(2)
(TAS) Wills Act 1992 s 5(2).
The wording of the statutes in the other jurisdictions is broad enough to include an interest in an estate pur autrie vie see:
(NT) Wills Act 2000 s 6
(QLD) Succession Act 1981 s 8
(VIC) Wills Act 1997 s 4
(WA) Wills Act 1970 s 6.
8See [355-2090]. As to intestacy see SUCCESSION [395-840]-[395-2095]

9(NT) Law of Property Act 2000 s 27

(QLD) Property Act 1974 ss 26, 27.
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