The legal nature of the Crown's title on the Grant of a Common Law Lease Post Mabo: implications of the High Court's treatment of the 'Reversion Expectant' argument: part 1

Secher, Ulla (2006) The legal nature of the Crown's title on the Grant of a Common Law Lease Post Mabo: implications of the High Court's treatment of the 'Reversion Expectant' argument: part 1. Australian Property Law Journal, 14 (1). pp. 1-30.

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Abstract

It is trite law that, upon the grant of a pastoral lease which is indistinguishable from the pastoral leases examined in Wik, the Crown does not acquire a beneficial reversionary interest, with the result that the underlying title of the Crown continues to be mere radical title. This does not, however, resolve the legal position with respect to other leases: in particular, the Wik High Court made it clear that the pastoral leases in question were not leases in the common law sense. This two-part article, therefore, examines the legal implications of the High Court’s treatment of the reversion expectant argument for common law leases. Although the High Court’s decision in Ward has confirmed that, as a result of the Native Title Act 1993 (Cth), the grant of such leases extinguish native title, does this necessarily mean that any residuary rights to the land in respect of which the lease was granted automatically lie with the Crown? Part I begins by examining whether, on general principles, the High Court’s identification of radical title as both a postulate of the doctrine of tenure and a concomitant of sovereignty support or undermine Brennan J’s reversion expectant dictum. The relevance of traditional English interpretations in determining the meaning of radical title and reversion expectant, in light of Brennan J’s dictum, is also analysed. In Part II it will be seen that the rationales underlying the majority judgments in Wik indicate how the legal implications, for the Crown’s title, of the statutory grant of interests in land other than pastoral leases, including the grant of a true common law lease, might be resolved. The question examined in Part II is twofold: does the Crown grant of a common law lease based upon its radical title mean that the Crown acquires the reversion expectant on the expiry of the term? And, if it does, is such reversion expectant sufficient to convert the Crown’s radical title into beneficial ownership of the land? Put another way, is the traditional common law definition of ‘reversion’ relevant when a lease is granted out of land in respect of which the Crown has mere radical title? Further light is thrown on this question by examining the common law doctrine of extinguishment by freehold grant and the common law concepts of partial extinguishment and suspension.

Item ID: 4043
Item Type: Article (Refereed Research - C1)
Keywords: land law
Additional Information:

Reproduced with permission from LexisNexis. Published in Australian Property Law Journal. Secher, Ulla (2006) The Legal Nature of the Crown's Title on the Grant of a Common Law Lease Post Mabo: Implications of the High Court's Treatment of the 'Reversion Expectant' Argument: Part 1. Australian Property Law Journal, 14 (1). Jan-30.

ISSN: 1038-5959
Date Deposited: 30 Nov 2009 05:47
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