31 – What is Fee Simple v Torrens Title
Why this deception?
In 1973, Gough Whitlam authorized a Commission into Land Tenures, headed by Sir John Kerr.This document of over 900 pages stated that the private land owner should not be allowed to benefit financially from government activities such as re-zoning. To prevent this, the owner should have his ownership rights regulated away, so that any zoning benefit would be offset by the loss of land use rights. The suggestion was made to buy all land back into Crown hands, but the authors recognized the cost factor would be too immense.This document did not, at any stage, recognize the rights inherent in a Grant of Fee Simple.
The overall decision of this document was to completely regulate all aspects of land use, resume land where possible and allow major and chosen developers to develop specific areas. The individual could build a house on that land, with the right to sell it, but would never be allowed to own the land.Gough Whitlam is widely recognized as the ‘leader’ of the Fabian Society in Australia.This Society favours gradual incremental change rather than revolutionary change, tactics of harassment and attrition rather than head-on battles. They plan to create socialist states in Australia by promoting Marxist and Darwinist doctrines. Fabians favour the nationalization of land. They have stated, “We must make land common property.”The Fabian Coat of Arms was originally a WOLF IN SHEEP’S CLOTHING.Hawke & Rudd both looked to Whitlam as a mentor
Quotes
Mr. Whitlam reiterated his contention to use section 96 of the Constitution as a means of “competing” with private enterprise. In effect this is the selective use of the government’s power in the credit field to put free enterprise at a disadvantage to government “enterprise”.
Mr. Hawke told his Fabian colleagues in Melbourne “For our reforms to endure, the whole mood and mind and attitudes of the nation must be permanently changed”. This is an appeal for a programme of national social engineering.
He also said in that speech, “The Fabian Society acknowledges the principal tenet of Marxism, the abolition of private property, in this case to own land. They then align themselves with the non-violent arm of Marxism by accepting the non-violent road of patient gradualism to total government.”
What Methods of Deception have brought about massive removal of land ownership rights?
· Council zoning
· Development applications
· Irrigators Water Buy-Backs
· Land Clearing Laws
· Native Animal Wildlife corridors
· State Parks
· Forest plantings
· Carbon emission taxes (proposed)
· Environmental laws
· Land care grants
· Native Vegetation laws
· Global Warming propaganda.
· And etc
While we may personally favour some of these measures, it is no longer a myth that they have all combined to remove our common law land ownership rights at a massive pace. 100’s of hours of personal research have led me to believe and state that all these regulations were not intended for the betterment of either the Australian Continent or the people who make it home.
Their one over-reaching aim was to take the land out of private ownership, lock it up, place the citizens in structured, regulated housing and create a form of communist control that is almost complete.
We are now seeing Whitlam’s plan in action. Farms being closed down for lack of water that they still pay for. People’s homes resumed and turned into park land, which is then leased to major corporations to be turned into resorts. Land resumed at basic costs, for public purposes, then sold to become housing estates.
Posted by flora at 6:09 AM 
The foundation of all land ownership is founded in the Hebrew/Christian faith that says “The Earth is The Lord’s and the fullness thereof, the world and they that dwell therein.” In other words; everything that exists belongs to God; we are all His property; so is the land, and we are occupiers of the land under a “Deed of Grant, in trust.
Legal definition of Deed – A sealed Instrument, containing a contract or covenant, delivered by the party to be bound thereby, and accepted by the party to whom the contract or covenant runs.
Now it is worth considering the fact that a Deed also evokes a Covenant, because a covenant is a very important word.
I previously mentioned that the basis of Common Law was biblical. Let’s look at the Coronation Ceremony of Queen Elizabeth II.
1. Elizabeth, daughter of King George VI, next in a line of succession to a Throne going back almost 1,000 years, ascended to it the same manner as Her predecessors
2. She publicly acknowledged Her own need for a saviour and accepted Jesus The Christ as that saviour.
3. She was handed a Christian Bible and accepted it as the standard by which She would Reign over Her people.
4. She was crowned with a Crown, the highest point of which is the Cross of Jesus Christ, as Head of all the countries then concerned.
5. Likewise, She accepted the symbols of the power of Her office; the sceptre and the orb. She is Commander-in Chief of all armed forces and police forces throughout those lands and members of those forces swear allegiance to Her.
6. She acknowledged that Jesus Christ had promised that He will return and stated that She would hand Him those symbols of power and then bow before Him.
7. This is why She and He predecessors are all known as “Regina” or “Regent;” because they stand in the place of another.
8. By right, we tell our “representatives” in Her Parliaments what laws we want passed and how we want to be governed, from day-to-day. Her representatives tell Her what we have collectively asked; She consults Her history (She has records of all the world’s governments going back into that history), Her “Privy Council” and Her Bible and if these all agree to our request She issues Her Royal Ascent and it then becomes Law.
9. She can make no law.
10. She must remain above and out of politics.
11. No law has authority until She gives Her assent.
12. It is not the power She has that counts; it’s the power that She denies others that they are concerned about and want to remove.
Queen Elizabeth has publicly declared that the Bible is the greatest book on earth. That ‘book’ must be used to make a sworn oath, it must be found in every court in this land, politicians are required under the Australian Constitution to swear their oath to the people of the commonwealth on that ‘book’.
The Oath of the Constitution is
I, A.B., do swear that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, Her heirs and successors according to law. SO HELP ME GOD!
The Affirmation of the Constitution is
I, A.B., do solemnly and sincerely affirm and declare that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, Her heirs and successors according to law.
We are not a democracy; we are a constitutional Christian Monarchy and it is not possible to be both. Only a republic can be a democracy.
Legal Definition of Covenant – In the Law of Contracts an agreement, convention or promise of two or more parties, by deed, in writing, signed, sealed and delivered, by which either of the parties pledges himself to the other that something is either done or shall be done, or stipulates for the truth of certain facts.
So, Her Majesty Queen Victoria, has pledged through her authority as the protector of the inheritance of the Crown (which is God the Father, Jesus Christ and the Holy Spirit), to Covenant with us through this Grant of land, this Deed of Trust. And because she gives a ‘Power of Attorney’ in the form of the Letters Patent to her servants the Parliament of Australia, the Governors and Governor-General, they are bound by that pledge just as surely as if it were their mouth that had spoken the words, their heads that had carried the Crown, and their hands that had accepted the scepter and the orb.
When these entities of corporate government dare to attempt to steal that which is not theirs in the form of this covenant relationship over our land, they are spiritually breaking the Word of God, wherein He promised to us, through Victoria, Her Heirs & Successors, the free occupation of our land.
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Information about our Deeds
CONVEYANCING ACT 1919
23B Assurances of land to be by deed
(1) No assurance of land shall be valid to pass an interest at law unless made by deed .
50 Rights of entry etc
(1) Every right of entry, contingent remainder, and every contingent or executory or future estate, right, or interest, or possibility coupled with an interest, in property, may be conveyed by deed
(2) Any conveyance of a present right of entry in any land, other than a conveyance to the person in possession thereof, and any covenant or agreement for, or promise of a conveyance (other than as aforesaid) of the same shall be void as against the person in possession or those claiming under him or her unless the person conveying or covenanting, agreeing, or promising to convey, or the person through whom he or she claims has been in possession of the land within twelve months from the date of the conveyance, covenant, agreement or promise.
First point – no one can transfer an Interest in our land without holding the deed.
Remember an Interest is a partial ‘ownership’.
A Mortgage is an Interest until such time as the money is finally paid, hence the bank holds the deeds.
At all times we must know where our deeds are.
If we are to protect our land ownership we must hold the deeds.
Information has been given to us to indicate that banks are not providing the deeds when the mortgage is cleared and it has taken some people over 6 months to get their deeds. When they have been returned the deeds are stamped Archival and have holes punched in them. Other information has indicated that the relevant government departments in QLD have been destroying not only deeds, but any document carrying the Seal of the Crown.
A recent case in America concerned the Deutschebank foreclosing on 13 home owners. The court demanded the bank produce the deeds to prove their right of debt. They were not able to and the court refused to allow the foreclosure. At the point of the mortgage being signed, the bank sells the debt onto other customers, sometimes going through 3-4 hands. Therefore it is more common than not that the bank does not have your deeds any more and will not be able to find them.
In that event, apply to the court for a new copy.
Second point – Your deeds indicate all the rights on your land.
Which means that your deeds carry your title, any reservations, any mortgages, any easements, encumbrances, etc.
They are the legal proof of your rights on your land.
If it is not attached to your deed, is has no legitimacy over your land.
Three important High Court cases verify our land rights via the Torrens Title register.
• LAPIN & ANOTHER v ABIGAIL [1930] HCA 6; [1930] 44 CLR 166 (28 March 1930)
A bank mortgage was held over 2 parcels of land. The owner Lapin owed money to and handed over the deeds to a second party in exchange for paying out the bank. The new owner Heavener borrowed money privately from Abigail to pay out her bank mortgage, Abigail took a caveat over the land. Lapin contended he had not sold the land but only given the deeds as surety. As Lapin’s ownership was still registered under the Torrens Title, he was decreed as the real owner of the land.
“Under the Torrens’ system it is registration of a dealing which operates to extinguish inconsistent equitable titles. The system provides the machinery of caveats in order to enable the owner of an equitable interest to forbid registration and thus preserve his equity.”
• PIRIE v REGISTRAR-GENERAL [1962] HCA 58 (1962) 109 CLR 619 (30 November 1962)
The registered proprietor of the land asked the Registrar-General to cancel a notification on their certificate of title and the RG refused. The High Court ruled in the land owner’s right.
“….it seems to me that it is not for the Registrar-General to decide whether an entry should be cancelled because it was not authorized by s. 88(3) and then to act upon his own decision, ……”
“It follows, I think, that the Registrar-General whose duty it is to put no unauthorized entries in the register book is under a corresponding duty to remove any that ought not to be there.”
“………the Registrar-General had, in effect, refused – and refused improperly – to issue to the applicant a certificate of title under the Act.”
• HILLPALM PTY LTD v HEAVEN’S DOOR PTY LTD [2004] HCA 59 (1 December 2004)
A portion of land had been divided, council had required an easement to the land-locked block be registered as attached to that portion. It was not done. At a later date, after blocks were sold, the new owner of the land-locked block demanded the court enforce the easement. Although the correspondence and council plans indicated the easement, as it was not attached to the deed it could not be enforced. The new own lost the case.
“The respondent now has no registered easement of way over the appellant’s land. None is recorded as an exception, encumbrance or interest on the title to the appellant’s land. Can the respondent compel the appellant to grant it such an easement and compel the appellant to construct a track along that easement?”
“”Notwithstanding the existence in any other person of any estate or interest which but for this Act might be held to be paramount or to have priority, the registered proprietor for the time being of any estate or interest in land recorded in a folio of the Register shall, except in case of fraud, hold the same, subject to such other estates and interests and such entries, if any, as are recorded in that folio, but absolutely free from all other estates and interests that are not so recorded”.
Barwick CJ said in Breskvar v Wall:
“The Torrens system of registered title … is not a system of registration of title but a system of title by registration. That which the certificate of title describes is not the title which the registered proprietor formerly had, or which but for registration would have had. The title it certifies is not historical or derivative. It is the title which registration itself has vested in the proprietor.”
These 3 cases clearly show that nothing can be attached to our title without our permission, whether it is a mortgage, or an easement or whatsoever. However, government documents are giving fraudulent information on the truth of ownership.
A report published by the Australian Government Department of Families, Housing, Community Services and Indigenous Affairs states –
“There are many forms of ownership title including –
• Common Law or Old System Title
• Torrens Title
• Company Title
• Strata Title
• Community Title
• Perpetual Lease or 99 year Lease
“The most common type of ownership is ‘Torrens Title’. This usually applies to a standard residential suburban house with its own yard. Some townhouse or courtyard blocks also have Torrens Title. As long as repayments on mortgages are kept up to date and there are no government or council plans to resume the land, Torrens Title offers the most permanency. As a Torrens Title owner 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. You might also have to meet the terms of any building ‘covenants’ you have signed. These are agreement with developers that have terms and conditions about alterations.”
The details of this whole document are not just in error, they are fraudulent and criminal. This document, designed to give details of home ownership, can only lead us to assume that government have a deliberate plan to remove true land ownership through deception and misinformation. As well, this document places government in false ownership of our land via such statements as “you are responsible for…all rates….”
A document from eChoice Home Loans, states “Old system titles can be converted to Torrens title.”
Information from QLD is that several years ago, landowners were encouraged to turn in their “old titles” and were then given a Torrens title registration. Torrens is now compulsory in QLD.
Domain Financial Services states – “Torrens Title is the most common form of property title in Australia. All previous and current owners are listed on the one deed, as are all previous mortgagees etc. Also know as “RPA” standing for “Real Property Act”, the legislation that governs the operation of Torrens Title.”
And there are many properties for sale listed as Torrens Title properties.
Mr Kerry Shine, Minister for Justice and Member for Toowoomba in QLD stated that in a reply to a letter from a constituent, published in the Toowoomba Chronicle August 11, “Finally, in relation to Mr Patch’s third enquiry (TC 25/07), Common Law land rights have not applied to Queensland freehold land since the introduction of the Torrens Land Title system in 1861 or the leasehold lands which are governed by the Lands Act 1994. The “Brigalow Corporation” simply administers land pursuant to this Act. This system functions effectively to protect the interest of private landholders in Queensland.”
Common Law land rights being a Grant in Fee Simple.
In Robson v Hallett [1967] 2 QB 939, Lord Parker CJ said (at 951):
“the occupier of any dwelling-house gives implied licence to any member of the public coming on his lawful business to come through the gate, up the steps, and knock on the door of the house.” This implied licence extends to the driveway of a dwelling-house. However, the licence may be withdrawn by giving notice of its withdrawal. A person who enters or remains on property after the withdrawal of the licence is a trespasser.”A sign at your front entrance clearly indicates that you do not give permission unless by invitation therefore entry is prohibited. Information from QLD has indicated that the police will enter through an open gate regardless of the sign, but cannot open one. Therefore, keep your gates closed. Police have also indicated that they cannot deliver a summons past a proper Trespass sign unless a felony has been committed under the Crimes Act and a warrant issued.“The very limited nature of a constable’s right to enter private property for the purpose of arrest is by itself a compelling argument for holding that, without making major changes to the law, the common law cannot logically recognise the service of a summons as a ground for entering premises against the will of the occupier. It would be incongruous for the common law to permit entry for the purpose of arrest in a few cases only but to permit entry for the purpose of serving a summons in every case whatsoever.”Lord Edmund-Davis in Morris v Beardmore stated: “If the courts of common law do not uphold the rights of individuals by granting effective remedies, they invite anarchy, for nothing breeds social disorder as quickly as the sense of injustice which is apt to be generated by the unlawful invasion of a person’s rights, particularly when the invader is a government official.”Every Australian Parliamentary Act now states that, under that Act, public officials may enter your property for the purposes of that Act.I firmly believe that is not true, given the previous quotes. Here are notes from the 6 major Australian High Court Trespass cases we use to define our rights in this area.
And remember, Lord Coke’s quote “Common Law doth control Acts of parliament and adjudges them when against Common Right to be void.”
HALLIDAY v NEVILL [1984] HCA 80; (1984) 155 CLR 1 (6 December 1984)
Police noticed an unregistered driver back out of his driveway. When approached he ran back onto his property, the police entered and arrested him. The police were found to have trespassed and the Police appeal was dismissed with costs, in the High Court.
BRENNAN J. “This case is about privacy in the home, the garden and the yard. It is about the lawfulness of police entering on private premises without asking for permission. It is a contest between public authority and the security of private dwellings.”Notes from the case: “While the question whether an occupier of land has granted a licence to another to enter upon it is essentially a question of fact…….The most common instance of such an implied licence relates to the means of access, whether path, driveway or both, leading to the entrance of the ordinary suburban dwelling house. If the path or driveway leading to the entrance of such a dwelling is left unobstructed and with entrance gate unlocked and there is no notice or other indication that entry by visitors generally or particularly designated visitors is forbidden or unauthorized, the law will imply a licence in favour of any member of the public to go upon the path or driveway to the entrance of the dwelling for the purpose of lawful communication with, or delivery to, any person in the house. Such an implied or tacit licence can be precluded or at any time revoked by express or implied refusal or withdrawal of it.
“The principle applies alike to officers of government and to private persons. A police officer who enters or remains on private property without the leave and licence of the person in possession or entitled to possession commits a trespass and acts outside the course of his duty unless his entering or remaining on the premises is authorized or excused by law.”
GEORGE v ROCKETT [1990] HCA 26; (1990) 170 CLR 104 (20 June 1990)
Warrant was issued to the Police, to enter premises and investigate information in documents which were in a solicitor’s office. The solicitor appealed to the High Court, the warrant was found to be invalid, and he won the case with costs.
“It is the duty of a justice before issuing….a warrant, to satisfy himself that there are grounds for suspecting and grounds for believing the respective matters mentioned in S711 of the Criminal code and that those grounds are reasonable.”
“What is required by the law is that the justice of the peace should stand between the police and the citizen, to give real attention to the question of whether the information proffered by the police does justify the intrusion they desire to make into the privacy of the citizen and the inviolate security of his personal and business affairs.”
“When a statute prescribes that there must be ‘reasonable grounds’ for a state of mind – including suspicion and belief – it requires the existence of facts which are sufficient to induce a state of mind in a reasonable person.”
In Feathers v Rogers, Justice Simpson stated that the complaint must exist as a sworn oath, otherwise the statements made in the complaint are immaterial. A sworn oath would be in an affidavit form verified by oath or affirmation.
Suspicion without proof is not enough for a warrant to be issued.
PLENTY v DILLON [1991] HCA 5; (1991) 171 CLR 635 F.C. 91/004 (7 March 1991)
Police entered a rural property to issue a summons. The owner told them to leave, a scuffle ensued, the owner was arrested for assault. His appeal to the High court won with costs for damages against the 2 constables.
“Common law authority tends against (allowing for entry re delivery of a summons when entry) has been forbidden by the person in possession and entitled to possession thereof.”
“Next, it is submitted that the statutory power to serve a summons, either personally or non-personally, carries with it the right to make such entry on land as is necessary to effect service…..The grounds to justify to this fail. Police entry was wrongful.”
“Serving a summons is not an ‘execution under the process of any court of justice’; it is simply the commencement of the process.”“It would be incongruous for the common law to permit entry for the purpose of arrest in a few cases only but to permit entry for the purpose of serving a summons in every case whatsoever.”
· NSW v IBBETT [2006] HCA 57; (2006) 231 ALR 485; (2006) 81 ALJR 427 (12 December 2006)
Police entered the home of a lady, chasing her son. Weapons and threats were used by the police. Mrs Ibbett was awarded exemplary damages against the police involved. The Police appealed and lost with costs.
‘It is well established that the tort protects the interest of the plaintiff in maintaining the right to exclusive possession of her place of residence, free from uninvited physical intrusion by strangers.”
“The common law fixes by various means a line between the interests of the individual in personal freedom of action and the interests of the State in the maintenance of a legally ordered society. An action for trespass to land and an award of exemplary damages has long been a method by which, at the instance of the citizen, the State is called to account by the common law for the misconduct of those acting under or with the authority of the Executive Government.”
Lord Devlin in Huckle v Money stated: “the servants of the government are also the servants of the people and the use of their power must always be subordinate to their duty of service.”
KURU v STATE OF NSW [2008] HCA 26 (12 June 2008)
The police were called to a domestic dispute. The woman had gone to her family and after police checked by phone on her safety, the man asked them to leave several times. An altercation ensued, the man was arrested. He appealed the arrest and his appeal was upheld with costs against the police.
After the man had asked the police to leave…”there was neither statutory nor common law justification for the police remaining on the appellant’s premises.”
S 357F Crimes Act 1900 (NSW)(3) Except as provided in subsection (4), a member of the police force may not enter or remain in a swelling-house by reason only of an invitation given as referred to in subsection (2) if authority to so enter or remain is expressly refused by an occupier of the dwelling-house and the member of the police force is not so otherwise authorizes (whether under this or any other Act or at common law) to so enter or remain.
The case hinged on 3 facts:
1. an occupier of the dwelling-house had invited the police to “look around’ the flat
2. an occupier of the dwelling-house had then asked the police to leave
3. the police officer did not leave and remained on the premises for longer than it would reasonably have taken them to leave.
“Regs 8 and 9 of the Police Regulations 2000 (NSW), coupled with ss6 and 201 of the Police Act, prescribes a form of oath or affirmation to be taken by a police officer under s13 of the Police Act. The prescribed for of oath or affirmation contained a promise to ‘cause Her Majesty’ peace to be kept and preserved……s201 of the Police Act made it an offence to neglect or refuse to carry out any lawful duty as a police officer.”
COMMONWEALTH v NSW [1923] HCA 34; (1923) 33 CLR 1 (9 August 1923)
This case was not about trespass but verifies many of the ownership rights on Fee Simple land.
Remember in a previous post, I gave details of the 4 elements of ownership that are carried in a Fee Simple Title Deed.
1. tenements
2. messuages
3. corporeal hereditaments
4. incorporeal hereditaments
First we must remember that many words have different legal words or had different original meanings to our current understanding.
Therefore, the word Tenement in 1. does not mean a hovel, shacks, etc. In a narrow sense it simply means buildings, however, in the broader sense as attached to a Fee Simple Grant, it means not only the land, but everything of a permanent & solid nature attached to the land, so the buildings, the rents, the leases, etc.
In 2. Messuages is a term for dwelling house. In essence this ownership right is permission to build and live on the land.
At 3. & 4. we come to the Hereditaments. These are things capable of being inherited, including not only the land, but everything thereon.
Corporeal Hereditaments are the tangible/physical elements of that inheritance. According to Blackstone’s Commentaries on English Law 1765 (still used in the High Court of Australia today): ”This consists of substantial and permanent elements of the land – the ground, soil, or earth whatsoever; as arable, meadows, pastures, woods, moors, waters, marshes, furzes, and heath. It legally includes buildings, as they use the land as their foundation. Water cannot be owned, but the land which holds it can. In its legal significance, land has an indefinite extent both upwards and downwards to the centre of the earth.”
Incorporeal Hereditaments are the intangible elements of that inheritance. This is a right issuing from the physical element of land, such as rent, incomes from an enterprise on the land. They are a right to have an idea that will become physical on the land, ie to develop a business and produce an income. An incorporeal hereditament is the things we do with our land including waste it.
Now in the case we are discussing, the dispute was between the State of NSW and the Federal Government over mining land, which the Federal Government were resuming. The State wanted full compensation.
As the dispute was about mining, many comments were made about the minerals under the surface of the ground. All of the following quotes from this case cover the facts stated in Corporeal Hereditaments, that we own all the natural elements of our land from the top of the sky to the centre of the earth.
“…..”land the property of a State” covers the whole soil from the surface to the centre and everything which is physically incorporated in it including the Royal metals.”
“The power given by s13 Land Acquisition Act is to acquire ‘land’, and prima facie that means to acquire the soil from the surface to the centre.”
“….by its definition of the word ‘land’, enables the Commonwealth to acquire interests in, or rights, powers or privileges over, land as well as land in its ordinary meaning, namely, ‘that in respect of which you have a right from the centre of the earth to the heaven above.”
“As a natural fact, gold and silver, neither more nor less than copper or tin or platinum or clay or oil, are part of the concrete physical mass, commencing at the surface of the earth and extending downwards to the centre of the earth, which is called ‘land.’”“….trees growing on the land are, according to the received legal definition of ‘land’, regarded as part of it.,,” unless reserved to the Crown.
When resuming land…..”the full contents of the parcel of land pass; the ’land’ being measured superficially by metres and bounds and extending actually downward indefinitely and notionally upward indefinitely, is that which is ‘passing to the Commonwealth’ “ when the resumption occurs.
Many properties are now faced with Mining companies assessing the land for the minerals under the soil. Once miners had to pay full royalties for whatever they found in your land. Since the 1950’s approx, the government restricted that to the top 6 inches.
Did the government have a Letters Patent to re-enter our land in this manner and reduce our income from our land? In effect, they removed part of our Incorporeal Hereditaments – a right sold to us by the King/Queen who reserved the mineral rights, it is true, but not any royalty income via a depth in the soil. And this has led most people to believe they only purchase the top 6 inches of the soil. Not true. Absolutely not true. And clearly verified by this High Court case, which is still current in Australian law, being a CLR case – law precedent case.
1923 confirms the rights in our Fee Simple title.
When we purchase the land, the Crown guarantees that we buy that land free and clear Remember that the Abolition of Tenures Act 1660 & the Imperial Acts Application Act 1969 – SECT 36 both confirmed that we take on no debt through the purchase of the land. This case now tells us how the Commonwealth Government do resume the land free and clear also.
“…the lands have vested in the Commonwealth for an absolute and unconditionable estate in fee simple freed and discharged from all reservations, rights, royalties, conditions and obligations of any kind whatsoever to the State of NSW.”
“…and be freed and discharged from all trusts, obligations; estates, interests, contracts, licences, charges, rates, and easements, to the intent that the legal estate therein, together with all rights and powers incident to…..”
“The word ‘land’ is, and has been….defined by S5 of the Lands Acquisition Act as including ‘any estate or interest’ in land – legal or equitable – and any easement, right, power, or privilege over, in, or in connection with land…”
“No implied limitation can be placed on the fullest meaning that can be given to the word ‘property’ in s51(xxxi) and s85 of the Australian Constitution.”
“s22 Acts Interpretation Act 1901…so as to include ‘messuages, tenements and hereditaments, corporeal and incorporeal, of any tenure or description, and whatever may be the estate or interest therein’ and ‘estate’ to include ‘any estate or interest, charge, right, title, claim, demand, lien or incumbrance at law or in equity’….”
“…sec 16(1) of the Act applies: so that the land decribed in the notifications became vested in the Commonwealth ‘freed and discharged from all trusts, obligations, estates, interestes, contracts, licences, charges, rates and easements, to the intent that the legal estate therein, together with all rights and powers incident thereto or conferred by this Act, shall be vested in the Commonwealth.”
“….S17 (of the Act)includes not only the corporeal land but every interest therein, and any easement, right, power or privilege over, in or in connection with that land.”“From Challis’s Real Property, 3rd ed., p218, it is stated with perfect accuracy (remember these are the words of a High Court Justice); ‘In the language of the English law, the word fee signifies an estate of inheritance as distinguished from a less estate; ….A fee simple is the most extensive in quantum, and the most absolute in respect to the rights which it confers, of all estates known to the law. It confers, and since the beginning of legal history it always has conferred, the lawful right to exercise over, upon, and in respect to, the land, every act of ownership which can enter into the imagination, including the right to commit unlimited waste; and for all practical purposes of ownership, it differs from the absolute dominion of a chattel, in nothing except the physical indestructibility of its subject. Besides these rights of ownership, a fee simple at the present day confers absolute right, both of alienation by inter vivos and of devise by will.”
1923 clarifies where a Torrens Title registration affects our ownership.
“Real Property Act 1900 provides by s13, as follows: (1) All waste lands……when alienated in fee, be subject to the provisions of this Act. (2) the grants of such land shall be in duplicate, and every such grant, in addition to proper words of description, shall contain a diagram of the land thereby granted on such scale as the Governor directs, and shall be delivered to the Registrar-General, who shall register the same in manner hereinafter directed.”
“It will be observed that it is only when land in this class is ‘alienated in fee’ by the Crown that it becomes subject to the provisions of the Act………Unless there has been an alienation by Crown grant of an estate in fee simple, the Registrar-General is no authorized by the real Property Act to take any step in the direction of registration or bringing the land under the Act, or issuing a certificate of title thereto. Unless……there is nothing which the Act authorizes the Registrar-General to enter in the register-book and against which he can record any instrument, dealing, or matter affecting such land.”
“His action is a State service, not an individual service.”
1923 clarifies Compensation is a Commonwealth issue.
“s27 Land Acquisition Act 1906, it is provided that where any Crown land is acquired by compulsory process the State shall be entitled to compensation, to be estimated as if the State were the proprietor of an estate in fee Simple.”
“Clearly, since the Lands Acquisition Act 1906 was passed under the power granted in s51(xxxi) of the Constitution, any ‘property’ specified in the statute may be taken provided “just terms” are available by law. Clearly also the same results must follow in the case of land taken compulsorily under the statute as in the case of the Constitution. The Constitution suo vigore passes instanter on the transfer of the ‘Departments’ the property used in connection therewith; the statute, under constitutional authority, passes, when its conditions are satisfied, the property taken for the ‘purposes’ indicated. The result, however, must in each case be the same, because in each case the Constitution is the ultimate basis of title.” “here we deal with….a Constitution distributing property and powers between different organs of the King’s government.”
“Where any land (other than Crown land) is acquired by compulsory process, the owner of the land shall, if deprived of the land in whole or in part, be entitled to compensation under this Act (Land Acquisition Act 1906).”“17 sub-section2 says: the compensation shall be estimated as if the State were the proprietor of an estate in fee simple in the land, subject to any estate or interest which any person had in the land at the time of its acquisition by the Commonwealth.”
‘s5, Interpretations, Lands Acquisition Act 1906, the word ‘owner’ includes, with respect to the land, ‘any person who under this Act is enabled to sell or convey the land to the Commonwealth’; and ‘land’ includes any estate or interest in land (legal or equitable) and any easement, right, power or privilege over, in or in connection with land. The owners of such outside interest appear to be entitled to all costs, charges and expenses of all conveyances and assurances of the interests (s61 (1)(a)); and this right would be anomalous if such owners were not also entitled to compensation.”
Dictionary of Important Words
Legal definition of Implied – where circumstances and not words appear to create an intention.
Legal definition of Tort – A legal wrong committed upon a person or property, ie trespass, theft, etc
Legal definition of Statutory – A legislatory act, enacted and established by the will of the government of the day.Legal definition of Common Law – Not modern civil law – comes from Anglo-Saxon times – relates to government, security of person and property, deriving from ancient usages and customs – fixed and immutable rules and principles. The background to Common Law is biblical principles.
Legal definition of Interest – General term denoting property in land or chattels. Particularly any right in the nature of property, but less than the title; a partial or undivided right; a title to share.
Legal definition of Alienation – Transfer of property and possessions of lands, tenements, or other things from one person to another. Absolute conveyance of real property.
Legal definition of Inter vivos – Latin: refers to property transfers between living persons, as opposed to inheritance
Legal definition of Devise by will – A gift of real property by will, by inheritance.
Legal definition of Suo vigore – Latin: energy, vigour
Legal definition of Instanter – presently to, upon
Definition of reservations, royalties, conditions, obligations, trusts, contracts, licences, charges, rates, title, claim, demand, lien or incumbrance at law or in equity’, to the intent that the legal estate therein, together with all rights and powers, every interest therein, and any easement, power or privilege over, in or in connection with that land – all the words used to convey those elements that the Grant in Fee Simple title is free from on alienation.
This is how we purchase our land from the King/Queen, this is how the Commonwealth resume land from private ownership and the States’ control.
Trespass Warning Sign
In order to protect our property and properly inform all who would enter of our rights, it is important (particularly today) to place No Entry signs on each entry gate to your property, and keep your gates closed.
This sign must be addressed to both persons and entities as this covers both an individual and any public / corporate official.
A person may enter through your gate and proceed to your front door, however any indication that entry is not permitted means the person is now under accusation of trespass.
“The policy of the law is to protect the possession of property and the privacy and security of its occupier. A person who enters the property of another must justify that entry by showing that he or she either entered with the consent of the occupier or otherwise had lawful authority to enter the premises…”
This is the sign we have placed at our 2 entrances.
STOP
Notice
This property is owned under a Grant in Fee Simple Title
To all persons and entities entering this property without the permission of the land owners, admittance is by Invitation only
OR
Trespass applies.
Rulings by the High Court of Australia –
• Kuru v State of New South Wales [2008] HCA 26 (12 June 2008)
• New South Wales v Ibbett [2006] HCA 57; (2006) 231 ALR 485; (2006) 81 ALJR 427 (12 December 2006)
• Plenty vs. Dillon [1991] HCA 5; (1991) 171 CLR 635 F.C. 91/004 (7 March 1991)
• George v Rockett [1990] HCA 26; (1990) 170 CLR 104 (20 June 1990)
• Halliday v Nevill [1984] HCA 80; (1984) 155 CLR 1 (6 December 1984)
• Commonwealth v New South Wales [1923] HCA 34; (1923) 33 CLR 1 (9 August 1923)
Posted by flora at 8:50 PM
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.Official Deception
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.Definitions
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
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 hereditamentsThe 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.