An estate indicates an interest in land of some particular duration. The estate gives its holder a right to possession and the nature of the estate determines the extent and duration of the right to possession. The type of estate you may hold, or may be given, will be defined by the duration of that particular interest in land. There are two broad categories of estate: estates of freehold (the greatest interest in land, fullest); and estates of less than freehold (ie leasehold). At LegalVision, our property lawyers can assist you in understanding estate law and determining the type of estate you may hold.

Estates of Freehold

Estates of freehold are created where the length of the duration of the estate is uncertain. This can include estate in fee simple, or life estate. The estate in fee simple is the largest estate in duration. A holder of a fee simple estate may transfer the estate during his or her lifetime (a transfer inter vivos), dispose of it by will (effective on death) to chosen beneficiaries, occupy the land personally or to give possession to another for a time or exclude others.

The estate in fee simple is capable, indefinitely, of transfer inter vivos or devolution on death. Thus, it is an estate of uncertain, indefinite duration, and could, in theory, last forever. The only circumstance which will bring it to an end is the death of the current holder without a will and without next of kin to whom the estate can pass on an intestacy. In this situation, the property will revert to the Crown.

There are two types of life estate: the ordinary life estate and the estate pur autre vie. The ordinary life estate takes the form of a grant ‘to A for life’. This form of grant creates a life estate in A – an estate in land that is to last for the length of A’s life. An estate pur autre vie might arise either by express grant, or by the holder of an ordinary life estate assigning (i.e. transferring) that estate to another. For example, if A, the holder of an ordinary life estate, assigns his or her interest in the land to B, then B will hold for the life of A.

Estates of Less than Freehold (Leasehold Estates)

Estates of less than freehold are created when the duration of the estate is certain or capable of being rendered certain. The term may be short or long e.g. 1 month or 99 years. The lease expires automatically at the end of the period.  A Tenancy at Will is also a type of leasehold estate. Here, the lease can be terminated at any time. It arises in certain circumstances, such as when a holder of the fee simple allows another to take exclusive possession of land without agreeing to the duration or any payment of rent. A Tenancy at Sufferance arises when a tenant who was in lawful possession continues in possession without consent or dissent of the landlord e.g. holding over after termination of a fixed term or periodic lease.

Conclusion

There are varying limitations, rights and exclusions that apply according to the type of estate that an interest holder has in an estate. Understanding the type of estate will determine the holder’s right to possession and the extent and duration of the right to possession. Our team of wills and estates lawyers can assist you in any property law enquiry you may have. Call us today on 1300 544 755.

Lachlan McKnight

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