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 2

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 2. Australian Property Law Journal, 14 (1). pp. 31-71.

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Abstract

In Part I it was seen, both on general principles and as a result of the Wik High Court's specific treatment of pastoral leases, that the identification of radical title as both a postulate of the doctrine of tenure and a concomitant of sovereignty does not support Brennan J's reversion expectant dictum: when a pastoral lease is granted out of land in respect of which the Crown has mere radical title, either a reversion consisting of a nominal proprietary estate is created or no reversion is created. Indeed, in either case, the result is the same: upon the expiration of the lease, the Crown's interest in the land does not lose its essential character; it continues to be a mere radical title. The Wik High Court, however, made it clear that the pastoral leases in question were not leases in the common law sense.

In this Part, therefore, it will be seen how the rationales underlying the majority judgments in Wik might resolve 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. 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: 4044
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 2. Australian Property Law Journal, 14 (1). pp. 31-71.

ISSN: 1038-5959
Date Deposited: 30 Nov 2009 05:39
FoR Codes: 18 LAW AND LEGAL STUDIES > 1801 Law > 180124 Property Law (excl Intellectual Property Law) @ 100%
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