Sunday, December 6, 2009

A Grant in Fee Simple

The Abolition of Tenures Act 1660
In 1660, the Crown, at that time King Charles II, could no longer afford the upkeep of land and services to His subjects so therefore he abolished old tenures and allowed a statute law to be enacted for the sale of the lands of the Crown.

Original Letters Patent to Governor Philip
In the early days of the colony at Botany Bay, Governor Philip could only transfer the ownership from the Crown to the original settlers after nominating a parcel of land. This then had to be surveyed, and given a Lot number for identification.

Register of Lots
The officers of the Crown had then to make entries in the register of Lots.
The title deed that ensued carried a Volume number, folio number and the Lot numbers.

A Grant in Fee Simple Title Deed
All land in Australia was sold into private hands through a Grant in Fee Simple Title.
There is no other manner under which land can be sold into private ownership in Australia.
The new owner of this title was required to hold a Deed.
The original deeds were signed by the Governor of the State, after first determining that all purchase monies had been paid. “Now Know Ye that for and in consideration of the said sum for and on Our behalf well and truly paid into the Treasury of Our said State before these Presents are issued and of all and singular the premises, WE HAVE GRANTED and for Us Our heirs and Successors DO HEREBY GRANT unto the said (person), Heirs and Assigns.........subject nevertheless to the several and respective reservations hereinafter contained that We do Reserve unto Us Our Heirs and Successors all minerals…..”
The Governor signed “In witness whereof I have hereunto signed my name and affixed my Seal….”
This then, is a very legal Instrument of Law, a Contract with not just with the Crown via the Seal, but with the actual Sovereign Majesty, his/her Heirs and Successors.
This Instrument is a Deed in Trust with the current Queen Elizabeth as the Successor to the Crown; it is a Trust in Inheritance and a Trust in Equity.
That means that the act of purchase of a Grant in Fee Simple Title carries the right to pass on the estate through an Inheritance, a right which is protected by the Constitutional courts of Australia.
A Trust in Equity is the purchaser’s right to retain his equity (equality) of value in his land. So that when the Parliament requires the resumption of the land the Crown has sold, it must be under Just Terms Compensation.

What does a Grant in Fee Simple Title give us?
There are 4 elements of ownership that are carried in a Fee Simple Title Deed.
1. The purchase of any structures or buildings that are on the land - tenements
2. The right to build any structures of any kind on the land - messuages
3. The right of ownership of all natural elements on the land, to an indefinite extent above the land, and to the very centre of the earth – corporeal hereditaments
4. The right to use the land in any manner including to waste the land. (Waste being a legal term meaning to take back to bare rock or destroy) – incorporeal hereditaments

The rights do not include:
1. Ownership of any water on the land as water cannot be owned, as it is moveable. Only the use of the water while it is on the land.
2. The right to injure a neighbour’s enjoyment and use of his property.
3. The right to trespass on another’s land without his permission.

Proprietorship of a Grant in Fee Simple Title
This is the legal term for our ownership. We are proprietors of the Fee Simple Grant. Which means we operate the Title during the period of our ownership.
Our proprietory rights are often called ‘natural rights’.
We hold a Proprietas plena – full property, including not only the title, but the usufruct, or exclusive right to the use.

Tenants in Common
Our Grant in Fee Simple Title deed lists the new owner as a Tenant or Tenant in Common.
Tenant in Common indicates an ownership of 2 or more people holding the land together, where that ownership entitles each to an equal share of the Incorporeal Hereditaments inherent in the title, also known as the profits from the land.
The other term for Commons is Right of Common.
The Crown reserves to itself only minerals or other natural elements. However this Crown reservation must be listed on the Title Deeds to be legal.
In the event that we die without heirs, the Crown resumes sole ownership of the land (escheat).

Definitions: It is vital we remember that legal words often have a different meaning than the particular word in common usage. Blacks Law Dictionary is the best reference.

Tenant: One who holds or possesses lands or tenements by any kind of right or title.
Tenement: Houses, buildings or anything that may be holden of a permanent nature - a holding of land. Also includes rents and etc.

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