MLL327 Study Guide - Final Guide: Dominium Directum Et Utile, Quia Emptores, Seisin
24 May 2018
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TOPIC FOUR
Appreciate the operation of the doctrine of tenure and its relevance to contemporary Australian society
Tenure (Latin)- to hold/possess or occupy
• Different forms of tenure: Tenure was classified as:
o Unfree tenure: tenant at will of Lord in exchange for performance of menial services
o Free tenure: landholding in exchange for a particular service:
▪ Knight tenure = military services
▪ Frankalmoign tenure = land granted to religious bodies in exchange for
rendering of spiritual welfare
• Tenure is the land grant to tenant (different type of grants)
• Crown absolute owner and rights of tenant were derivative
o “No man is in law the absolute owner of land. He can only hold an estate in them”
(Williams)
▪ Both have interests in land: Crown = dominium directum (absolute
ownership) subject =(dominium utile) (tenure)
▪ Doctrine of tenure defines the nature/quality of landholding that a tenant
acquires from a sovereign Lord
▪ Doctrine of tenure addresses the question: "Upon what terms is the land held”
• Relationship between Crown and tenant rather than the relationship between tenant and land
• Reciprocity: land grant in exchange for service, fee or obligation
• Different interests are held in land
• Allodial ownership is direct ownership without holding through the Crown or the Crown’s lords
o Allodial ownership is unknown within the British common law
o In terms of the doctrine of tenure the King retained ownership of land and the subjects
held their estates by virtue of feoffment with livery of seisin (public delivery of an estate
in land during a ceremony)
o Doctrine of estates is a natural extension of the Doctrine of Tenure
o The doctrine of estates determines the duration of title to land
o The doctrine of estates addresses the question: “For how long is the land held”
Relevance to contemporary Australian Society
• Feudal tenure was inherited and endorsed in Australia
• Forms the foundation of Australian land law
• Upon adoption of feudal tenure in Australia, subinfeudation was no longer possible: all land
held directly of the Crown
• Quia Emptores of 1290 formed part of Property law taken over in Australia
• Vic: s 18A PLA 1958:
find more resources at oneclass.com
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“Land held of the Crown in fee simple may be assured in fee simple without a fine and the
person taking the assurance shall hold the land of the Crown in same manner as the land was
held before the assurance took effect.”
• The substance of Tenures Abolition Act 1660 (repealed) was preserved: all tenures created
by Crown shall be taken to be in free and common socage
• Rental payment in form of quitrent has long ceased
• No feudal incidents and demise of escheat (replaced by bona vacantia)
• Feudal tenure was integral part of society in England
• However, Allodial perspective preferred in Australia
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Appreciate the operation of the doctrine of tenure and its relevance to contemporary australian society. No man is in law the absolute owner of land. Appreciate the feudal origins of our system of property interests and the application of the statute of. Be familiar with the mabo decision, the operation of native title and its rejection of the doctrine of tenure. For purposes of determining applicable english law, the common law divided colonies into those acquired by: (a) settlement; (b) conquest; and (c) cession. In australia land was treated legally as having been acquired by settlement. Settlement principle is appropriate to land that was unoccupied or unpopulated (terra nullius) Application of doctrine of extended terra nullius - courts assumed that land was uninhabited and terra nullius and amendable to adoption of english land law (cooper v. stuart): (cid:862)australia i(cid:374) 1(cid:1011)(cid:1012)(cid:1012) was pra(cid:272)ti(cid:272)ally u(cid:374)o(cid:272)(cid:272)upied without settled i(cid:374)ha(cid:271)ita(cid:374)ts(cid:863)
