Can Part of a Fee Simple Grant be Sold?
No. The elements of ownership in a Grant in Fee Simple Title are attached to the land itself. We simply manage that ownership for a period of time.
To sell land with one or more elements removed is to sell something completely different.
And to then call the land title Fee Simple would be fraudulent.
For example, one owner may place natural elements of land under a covenant, removing these elements from ownership use, however at the moment a sale is completed the new owner has the return of all rights inherent in the Title.
These rights are not the owner’s to remove or separate, they belong to the land.
It has been said that we simply attach ourselves to the immense rights for the period of ownership.
What is Freehold Title?
Many people believe they own their land under a Freehold Title. They do not! However, Public servants and the documents they provide sometimes use the expression Freehold for land ownership because it does not carry the rights of the true title of Fee Simple.
A Freehold Title only gives the owner the right to buy, sell and inherit land – no other rights are included.
Freehold is a part of the Fee Simple Title, the expression being ‘mergeable therein.’
What is Torrens Title?
Remember back to the Register that the early colonial officials used to record the Lot numbers of land? See A Grant in Fee Simple posting.
The issue of protecting land ownership was very real, and often legal matters concerning the land ownership, were not known prior to a purchase, so the potential new owner had areas of jeopardy to concern him.
Sir Robert Torrens developed the Land Registry to include every element of the land ownership, including mortgages, liens on properties, etc., in order to allow a legitimate list of all the interests attached to the deeds to be available to a potential owner.
Torrens Title is NOT a form of land ownership. It is a record of land ownership only.
You must have purchased your land under a Grant in Fee Simple Title, must have paid for your land in order to complete the sale, BEFORE the land title change can be lodged under the Torrens Title system.
Torrens Title is only able to record dealings or the “chain of title” attached to the land.
More importantly, we can never own our land under a Torrens Title, because it does not and never will allow for the ability to inherit. A right which is guaranteed by the Queen, Her Heirs and Successors.
This, however, is where the State & Federal Parliaments are participating in removing our ownership.
On documents from the Australian Government, Department of Families, Housing, Community Services and Indigenous Affairs it is stated – “The most common type of ownership is “Torrens Title”…As long as any repayments on mortgages are kept up to date and there are no government or council plans to resume the land, Torrens title ownership offers the most permanency. As a Torrens Title owners you are responsible for the cost of all rates, services, maintenance and improvements to the property. Subject to regulations, you can alter the building or property. “
The document does not refer to a Grant in Fee Simple Title in any manner other than Common Law or Old System title.
On the Department of Lands website dictionary it states - Title Conversion: The action taken within Land and Property Information, Department of Lands to convert parcels of Old System land to Torrens title. It includes actions under Part IVA Real Property Act 1900 and the more recent Conversion Actions (CAs).
The statement from the Dept of Families is an outright lie. Torrens Title can never be how we own our land and to state it is, in an attempt to attach our land ownership to the rates and parliamentary acts which remove ownership rights, is criminal.
And to replace Common Law system titles (ie. Fee Simple) with Torrens Title is and outright theft of our ownership rights by parliamentary legislation.
The Abolition of Tenures Act 1660
“Alienation of land – Charles II A.D. 1600
IV. And be it further enacted by the authority aforesaid, that all tenures hereafter to be created by the King’s Majesty, his Heirs and Successors, upon any gifts or grants of any manors, land, tenements or hereditaments, of any estate of inheritance at the common law, shall be in free and common socage only, and not by knights service or in capite, and shall be discharged of all wardship, value and forfeiture of marriage, livery, primer siesin, ouster-le-main, aide pur fair fitz Chivalier and pur file marrier; and law, stature, or reservation to the contrary thereof in any wise notwithstanding."
In this act, the expression "free and common socage only" – tells us we do not have any debts attached to our land once we purchase it. Regardless of any law, statute or reservation to the contrary.
IMPERIAL ACTS APPLICATION ACT 1969
Sect. 36 Alienation of fee simple
Land held of the Crown in fee simple may be assured in fee simple without licence and without fine and the person taking under the assurance shall hold the land of the Crown in the same manner as the land was held before the assurance took effect.
12 Charles II c 24-The Tenures Abolition Act 1660 -s 4. 37 Tenure
All tenures created by the Crown by way of the alienation of an estate in fee simple in land after the commencement of this Act shall be taken to be in free and common socage without any incident of tenure for the benefit of the Crown.
This Act is Australian law and duplicates the Abolition of Tenures Act 1660 in stating that we buy (take) and are assured (guaranteed) our land free of any debts.
Alienation means to legally transfer title to a property in real property law.
With no incidence of tenure means the Crown has no holding or occupying right over the land.
CROWN LANDS ACT 1989
Sect. 169 Title to land
A person who has acquired land from the Crown by way of purchase or exchange (other than a person who has acquired land under a lease from the Crown by way of exchange) under this Act has an estate fee simple in the land.
REAL PROPERTY ACT 1900
Sect. 135A Definition of “owner”
In this Part:
"owner", in relation to land, means any person entitled to an estate of freehold in possession in the land:
(a) whether in fee simple or for life or otherwise, and
(b) whether at law or in equity, and
(c) whether absolutely or by way of mortgage.
Alienation: In land law, the transfer of the property, tenements and other elements from one person to another.
Licence: In property law this is an authority to do a particular act or series of acts on another's land without possessing any ownership rights to do so.
Fine: Any payment or rent from a tenant to a lord.
Common Socage: consideration of all kind, whether monetary or physical, taken from the profits of the land.
Tenure:the holding of land under a superior ownership