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62-409: By using the device of the strict settlement the ownership of the property was divided over time by using limited freehold estates . The most common example of strict settlement occurs where a landowner provides in his will that the land is to go to his eldest son for life and then the remainder is to pass to his son's eldest son in fee tail. Settlement would often provide for payment of an annuity to

124-471: A "highly interested" trustee. "He may legitimately exercise his powers with some, but not of course, an exclusive regard for his own personal interests" – per Vaisey J in Re Boston's Will Trusts 1956 Ch 395. He is entitled to a certain measure of discretion, Wheelwright v. Walker [1883] 23 Ch. 752 and Wheelwright v. Walker [1883] Weekly Reporter 912. Under s 37 of the 1882 Act the tenant for life has

186-472: A judge, by way of illumination, provides a hypothetical example, this would be obiter even if relevant because it would not be on the facts of the case, as in the Carlill case (below). University of Florida scholars Teresa Reid-Rambo and Leanne Pflaum explain the process by which obiter dicta may become binding. They write that: In reaching decisions, courts sometimes quote passages of obiter dicta found in

248-457: A lessee under a 35-year lease granted by the tenant for life knew that there were not trustees of the settlement he was not granted the protection of S45(3). Another of the procedural requirements is that the sale proceeds or the capital money must be paid to the trustees of the settlements or into court – s22 of the 1882 Act. Under s.54 on a sale, exchange, lease or mortgage a bona fide purchaser/lessee/ mortgagee shall if dealing in good faith with

310-414: A life estate pur autre vie . Second aim of the legislation was to protect the interests of the beneficiaries under the settlement. Their interests were over-reached i.e. they detached from the land and became attached to the proceeds of sale instead, their interests shifted to the money – i.e. the settlement now applied to the proceeds of sale. The acts apply whenever there is a settlement. A settlement

372-476: A life estate. Many jurisdictions retain the possibility of creating a life estate , although this is uncommon. In the United States, life estates are most commonly used either to grant someone use of the property for the remainder of that person's life in a will, or by a grantor to reserve the right to continue using the property for the remainder of the grantor's life after it is sold. The right to ownership of

434-604: A parcel of the land and grant it as a subordinate fief to his own sub-tenant, a process known as sub-enfeoffing or " subinfeudation ". The 1290 Statute of Quia Emptores abolished subinfeudation and instead allowed the sale of fee simple estates. William Blackstone defined fee simple as the estate in land that a person has when the lands are given to him and his heirs absolutely, without any end or limit put to his estate. Land held in fee simple can be conveyed to whomsoever its owner pleases; it can also be mortgaged or put up as security. Owners of real property in fee simple have

496-585: A publisher of the Ladies Directory (a guide to London prostitutes) was convicted of "conspiracy to corrupt public morals". He appealed on the grounds that no such offence existed. The House of Lords dismissed the appeal, in effect creating a new crime. Viscount Simonds said: "...there remains in the Courts of Law a residual power ... to conserve the moral welfare of the State, and ... guard it against attacks which may be

558-426: A term of years, a lease for a specified term, such as in an estate for years . A fee also could be limited through the method of its inheritance, such as by an "entailment", which created a fee tail . Traditionally, fee tail was created by words of grant such as "to N. and the male heirs of his body", which would restrict those who could inherit the property. If no heirs could be found, then the property would revert to

620-535: A woman who had used a smoke ball as prescribed could claim the advertised reward after catching influenza), Bowen LJ said: If I advertise to the world that my dog is lost, and that anybody who brings the dog to a particular place will be paid some money, are all the police or other persons whose business it is to find lost dogs to be expected to sit down and write me a note saying that they have accepted my proposal? Why, of course [not]! United States Supreme Court 's obiter dicta can be influential. One example in

682-506: Is a conflict between the provisions of a settlement and the provisions of the Act in relation to his powers where the settlement is more restrictive, the provisions of the Act will prevail. Note s.57 provides that nothing in the Acts prevent a settlor from conferring on the tenant for life any powers additional to those conferred by the act. Three controls were incorporated into the legislation to prevent

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744-504: Is arguable, but subsequent rulings treat it as such. In other instances, obiter dicta can suggest an interpretation of law that has no bearing on the case at hand but might be useful in future cases. The most notable instance of such an occurrence is the history of the famous Footnote 4 to United States v. Carolene Products Co. (1938), which, while rejecting use of the Due Process Clause to block most legislation, suggested that

806-412: Is created when a grantor places a condition on a fee simple estate (in the deed ). When a specified event happens, the estate may become void or subject to annulment. There are two types of defeasible estates: fee simple determinable and the fee simple subject to a condition subsequent. If the grantor uses durational language in the condition such as "to A. as long as the land is used for a park", then upon

868-460: Is defined by s2(1) of the 1882 act as "any land or any estate or interest in land, which stands for the time being limited to or in trust for any persons by way of succession". Basically, whenever a document creates a succession of interests in land the Settled Land Acts will apply. Generally there must be an element of succession. Section 59 creates one situation of settled land where there

930-420: Is imposed by s 4 which provides that in selling "he must obtain the best price that can be reasonably obtained". Also certain procedures must be followed. Once these procedures are followed, on a sale by the tenant for life the purchaser receives the fee simple absolute in the land freed from all the interests attaching to it under the settlement. The interests under the settlement are over-reached i.e. shifted to

992-421: Is no element of succession – where an infant is entitled in possession to land it is deemed to be settled land even though it may not be limited by way of succession i.e. he might he entitled to a fee simple. This was to ensure the commerciability of land owned by a minor as a purchaser would be reluctant to sign a contract with him given that it was voidable once the minor reached the age of majority. Generally it

1054-416: Is not crucial, it is obiter . If a court rules that it lacks jurisdiction to hear a case (or dismisses the case on a technicality), but still goes on to offer opinions on the merits of the case, such opinions may constitute obiter dicta . Other instances of obiter dicta may occur where a judge makes an aside to provide context for the opinion, or makes a thorough exploration of a relevant area of law. If

1116-428: Is the tenant for life who exercises the powers created by the acts The acts ensures that the powers created are available whenever there is a settlement by designating in every possible case one person to be the tenant for life. Section 25 of the 1882 act defines the tenant for life as "the person who is for the time being, under a settlement, beneficially entitled to possession of settled land, for his life…" – usually

1178-505: Is what is owned rather than the land it represents. The fee simple estate is also called "estate in fee simple" or "fee-simple title", or sometimes simply "freehold" in England and Wales. From the start of the Norman period, when feudalism was introduced to England, the tenant or "holder" of a fief could not alienate (sell) it from the possession of his overlord. However, a tenant could separate

1240-601: The High Trees case, Mr Justice Denning was not content merely to grant the landlord's claim, but added that had the landlord sought to recover the back rent from the war years, equity would have estopped him from doing so. Given that the landlord did not wish to recover any back rent, Denning's addition was clearly obiter , yet this statement became the basis for the modern revival of promissory estoppel . Similarly, in Hedley Byrne & Co Ltd v Heller & Partners Ltd ,

1302-678: The House of Lords held, obiter , that negligent misstatement could give rise to a claim for pure economic loss , even though, on the facts, a disclaimer was effective in quashing any claim. Also, in Scruttons Ltd v Midland Silicones Ltd , Lord Reid proposed that while doctrine of privity of contract prevented the stevedores in this instance from benefiting from protection of an exemption clause, in future such protection could be effective if four guidelines (which he went on to list) were all met. In Carlill v Carbolic Smoke Ball Company (a case whether

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1364-486: The United States , fee simple owners are usually subject to property tax and the revenue generated is directed to the municipality's general fund. Other local tax assessments called "special purpose taxes" may be assessed in addition to the property taxes for specific purposes such as infrastructure improvements. Real estate owned as a condominium is usually similarly owned in fee simple, but typically subject to rules in

1426-465: The deed , such as, for example, a condition that required the land to be used as a public park, with a reversion interest in the grantor if the condition fails; this is a fee simple conditional . The word "fee" is related to the term fief , meaning a feudal landholding. Feudal land tenures existed in several varieties, most of which involved the tenant having to supply some service to his overlord, such as knight-service (military service). If

1488-472: The 1882 Act and s.13 of the 1890 Act. The improvements can only be made out of capital money and cannot become a charge on the settlement – Standing v. Grey 1903 1 IR 49. Other miscellaneous powers conferred on the tenant are more restrictive e.g. under s.10(2) of the 1890 Act the Principal Mansion house and its grounds cannot be sold, exchanged or leased by the tenant for life without the consent of

1550-417: The 1882 Act as supplemented by s.16 of the 1890 Act identifies 5 categories of persons who qualify as trustees of the settlement: Categories provided by s16 of the 1890 act: The role of the trustees of the settlement was created to ensure that the tenant for life in exercising his statutory powers does not harm the interests of the other beneficiaries under the settlement. Hughes v. Fanagan 1891 30 LR IR:

1612-527: The Supreme Court's history is the 1886 case Santa Clara County v. Southern Pacific Railroad Co. . A passing remark from Chief Justice Morrison R. Waite , recorded by the court reporter before oral argument, now forms the basis for the doctrine that juristic persons are entitled to protection under the Fourteenth Amendment . Whether or not Chief Justice Waite's remark constitutes binding precedent

1674-399: The United States. To convey an estate in fee simple at common law, the deed or will must state "to B and his heirs". Anything short of those words transferred a smaller estate. Modern deeds usually follow a standardized form. There is a presumption that the testator intends to convey his or her property in fee simple unless the will indicates an intention to transfer a smaller estate, such as

1736-419: The capital value of the land will be diminished by the mining – s 11 provides that unless a contrary intention is expressed in the settlement part of the rent is to be set aside as capital money and the rest goes to the tenant as income. If the tenant for life is impeachable for waste ¾ of the rent is capitalised if he is unimpeachable ¼ of the rent is capitalised. The Settled Land Acts did not radically change

1798-449: The clause might be applied to strike down legislation dealing with questions of "fundamental right". This obiter dictum is generally considered to have led to the doctrine of strict scrutiny (and subsequently intermediate scrutiny ) in racial-, religious-, and sexual-discrimination cases, first articulated in Korematsu v. United States (1944). The judgment of Korematsu v. United States

1860-430: The conveying document's language is unclear. The claim that no rent or similar obligations are due from the owner of property in fee simple is only partially true. For example, a rentcharge may exist requiring a freeholder to pay a fixed sum of money closely resembling rent, and many jurisdictions have created financial obligations that may be imposed on a freehold estate. England and Wales impose an estate charge . In

1922-524: The courts will intervene is where the transaction is not bona fide or seems to involve an element of fraud, Middlemas v. Stevens (1901) 1 Ch. This is the role played by the trustees of the settlement. The powers are not equivalent to the powers of an absolute owner. Limits and restrictions are put on them by the legislation. Under s.3 of the 1882 act the life tenant has the power to sell or exchange land or any part of it or any interest right or privilege of any kind over or in relation to it. A restriction

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1984-554: The crucial facts and law of the case. Statements that are not crucial, or which refer to hypothetical facts or to unrelated law issues, are obiter dicta . Obiter dicta (often simply dicta , or obiter ) are remarks or observations made by a judge that, although included in the body of the court's opinion, do not form a necessary part of the court's decision. In a court opinion, obiter dicta include, but are not limited to, words "introduced by way of illustration, or analogy or argument". Unlike ratio decidendi , obiter dicta are not

2046-415: The declaration of condominium or created by the condominium association, such as paying required monthly fees for maintaining the property's common areas; however, these are generally treated legally as covenants running with the land (contracts binding on the possessors of real property) imposing an affirmative duty to pay money rather than as rent for property held in fee simple. Fee – A right in law to

2108-452: The donor's lifetime. If previous grantors of a fee simple estate do not create any conditions for subsequent grantees, then the title is called fee simple absolute . A fee simple absolute is the highest estate permitted by law, and it gives the holder full possessory rights and obligations now and in the future. Other fee simple estates in real property include fee simple defeasible (or fee simple determinable ) estates. A defeasible estate

2170-448: The full term even if the tenant for life dies before its termination. There are certain conditions and restrictions – The general rule laid down in Re Wix 1916 1Ch is that the rent reserved in leases is to be treated as part of the tenant's income from the land. It is never capitalised i.e. put by for the other beneficiaries. The 1882 act makes an exception in the case of mining leases as

2232-408: The grantor; this is a fee simple subject to a condition subsequent. In most jurisdictions in the United States these concepts have been modified by statute. Fee simple determinable was generally preferred by courts in the common law of the early United States. Recently, that trend has reversed, and most courts in the United States will find a fee simple subject to condition subsequent in situations where

2294-426: The happening of the specified event (in this case if the land is used for anything other than a park), the estate will automatically terminate and revert to the grantor or the grantor's estate; this is called a fee simple determinable. If the grantor uses language such as "but if alcohol is served", then the grantor or the heirs have a right of entry if the condition occurs, but the estate does not automatically revert to

2356-449: The highest possible form of ownership is a "fee simple absolute", which is without limitations on the land's use (such as qualifiers or conditions that disallow certain uses of the land or subject the vested interest to termination). The rights of the fee-simple owner are limited by government powers of taxation , compulsory purchase , police power , and escheat , and may also be limited further by certain encumbrances or conditions in

2418-409: The land from the fetters of the settlement – to render it a marketable article not withstanding the settlement". The legislation achieved this by giving the tenant for life statutory powers to deal with the land which far exceeded the powers he had previously under common law. The most important of these powers was the power of the tenant for life to sell the fee simple interest in the land and not just

2480-428: The main aim of the trustees of the settlement is to protect the interests of those entitled in remainder. Freehold estate In English law , a fee simple or fee simple absolute is an estate in land , a form of freehold ownership. A "fee" is a vested, inheritable, present possessory interest in land. A "fee simple" is real property held without limit of time (i.e., permanently) under common law , whereas

2542-604: The majority decision in Shaw , but in the interests of certainty he would not overturn Shaw . Akin to obiter is the concept of semble ( Norman French for "it seems"), indicating that the point is uncertain or represents only the judge's opinion. For example, in Simpkins v Pays (1955), a grandmother, granddaughter and a lodger entered into weekly competitions in the Sunday Empire News . Each week, all three women together made

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2604-519: The more insidious because they are novel and unprepared for." In a dissenting judgment, Lord Reid said: "Parliament is the proper place, ... to [create new criminal laws]. Where Parliament fears to tread it is not for the courts to rush in." Subsequently, Lord Reid was the leading judge in Knuller v. DPP , a case on obscene libel in which a publisher was charged with "conspiracy to corrupt public morals". In this case, Lord Reid said he still disagreed with

2666-508: The original grantor's heirs. Most common law countries have abolished entailment by statute. An estate in fee simple denotes the maximum ownership in land that can be legally granted; it is the greatest possible aggregate of rights, powers, privileges and immunities available in land. The three hallmarks of the fee simple estate are that it is alienable , devisable and descendible . Rules requiring words of general inheritance to create fee simple by conveyance have been abolished by statute in

2728-416: The person entitled to the life estate in possession or entitled to the fee tail in possession. The Settled Land Acts 1882 to 1890 is the collective title of the following Acts: There are two scenarios where the tenant for life does not exercise the powers conferred by the Act. Under s.50(1) the powers of the tenant for life cannot be assigned to another and s.50(2) renders void any contract under which

2790-504: The plural, obiter dicta ) is a Latin phrase meaning "other things said", that is, a remark in a legal opinion that is "said in passing" by any judge or arbitrator . It is a concept derived from English common law , whereby a judgment comprises only two elements: ratio decidendi and obiter dicta . For the purposes of judicial precedent , ratio decidendi is binding, whereas obiter dicta are persuasive only. A judicial statement can be ratio decidendi only if it refers to

2852-489: The power to sell heirlooms so long as he gets a court order – Re Earl of Radnor's Will Trusts 1890 45 Ch D402. Where land is involved the court will only intervene if the exercise of the power would financially affect the beneficiaries e.g. Re Earl Somers 1895 11 TLR 567. However where the financial loss is only speculative the court will not intervene as in Thomas v. Williams 1883 24 Ch D 558. One other situation where

2914-402: The privilege of interest in the property during their lifetime and typically have a say in determining who gets to own an interest in the property after their death. Historically, estates could be limited in time. Common temporal limitations include life estate , a land ownership that terminates upon the grantee's (or another person's) death even if the land had been granted to a third party, or

2976-401: The proceeds of sale. Under s.45(3) the purchaser, if he is dealing in good faith with the tenant for life, is not required to satisfy himself that the requisite notice has been given to the trustees. Over-reaching will still apply so long as the purchaser is acting in good faith even if this procedural requirement is not followed. In Hughes v. Fanagan (1891) 30 LR IR the court held that when

3038-399: The property after the death of the life estate owner is called the remainder estate . In England and Wales fee simple is the only freehold estate that remains; a life estate can only be created in equity and is not a right in property. In the United States, retained life estates are often used by donors who intend to leave property as bequests to charitable organizations while retaining

3100-406: The subject of the judicial decision, even if they happen to be correct statements of law. The so-called Wambaugh's Inversion Test provides that to determine whether a judicial statement is ratio or obiter , you should invert the argument, that is to say, ask whether the decision would have been different, had the statement been omitted. If so, the statement is crucial and is ratio ; whereas if it

3162-400: The tenant for life abusing his powers: A s 53 tenant for life must "have regard to the interests of all parties entitled under the settlement." He is required to have regard to the interests of the beneficiaries but he is not the same as the usual trustee since he is always one of the beneficiaries. In Re Earl of Stamford and Warrington (1916) 1 Ch Younger J described the tenant for life as

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3224-448: The tenant for life agrees not to exercise his statutory powers. Also, the settlor cannot through the provisions of the settlement curtail either directly or indirectly the powers of the tenant for life under the Acts. Any provision attempting to do so will be void under s.51 of the 1882 Act An example of an indirect attempt to curtail the exercise of the powers is found In re Fitzgerald 1902 IR 162 Section 56(1) provides that where there

3286-564: The tenant for life's power to mortgage. Under s.18 he can mortgage the land if money is required for equality of exchange, to buy out the ground rent or to raise money to discharge incumbrances of a permanent nature. Any money raised by the mortgage is treated as capital money and under s.22 must be paid to the trustees or into court. Even in these instances s.53 still applies. See: Hampden v. Earl of Buckinghamshire 1893 CH 53. Improvements are expenditures over and above day to day expenses e.g. repairs which he must pay for himself. See s.25 of

3348-448: The tenant for life, be conclusively taken, as against the beneficiaries of the settlement, as having paid the best price that could reasonably be obtained and to have complied with all requisitions under the acts. See obiter comments made by Black J in Gilmore v. The O'Conor Don 1947 IR 462 Section 6 allows a tenant for life to lease the land or any part of it. The lease will last for

3410-448: The tenant's overlord was the king, grand serjeanty , then this might require providing many different services, such as providing horses in time of war or acting as the king's ceremonial butler. These fiefs gave rise to a complex relationship between landlord and tenant, involving duties on both sides. For example, in return for receiving his tenant's fealty or homage , the overlord had a duty to protect his tenant. When feudal land tenure

3472-553: The texts of the opinions from prior cases, with or without acknowledging the quoted passage's status as obiter dicta . A quoted passage of obiter dicta may become part of the holding or ruling in a subsequent case, depending on what the latter court actually decided and how that court treated the principle embodied in the quoted passage. Under the doctrine of stare decisis , statements constituting obiter dicta are not binding, although in some jurisdictions, such as England and Wales , they can be strongly persuasive. For instance, in

3534-427: The trustees of the settlement or an order of the court. Under s.37 of the 1882 Act heirlooms such as family pictures, antiques cannot be sold without an order of the court. The role of the trustees is mainly supervisory. They generally have no powers to actively deal with the land as these powers are vested in the tenant for life. The trustees of the settlement have a more active role in two scenarios – Section 2(8) of

3596-572: The use of land; i.e. a fief . Simple – in the unconstrained sense: The English word fee ultimately goes back to the Indo-European root *peku , which refers to moveable wealth, that is, cattle. The Latin word pecunia , money, also comes from this root and becomes pecuniary in English. The root appears in Modern German as Vieh , cattle, beast. Obiter Obiter dictum (usually used in

3658-400: The use of the property during their lifetimes. The donor receives a tax deduction for the gift of their remainder interest in the property, and at the donor's death, the property passes to the organization without being subject to probate . Retained life estate gifts often involve agreements about acceptable uses of the property, payment of real estate taxes, property maintenance, etc. during

3720-584: The widow (jointure). Provision could be made for the younger children of the landowner by giving them a capital sum on reaching a certain age or getting married (portions). These were capital sums designed to set them up for life. They were secured by charging them on the land. The strict settlement meant that the land was effectively inalienable. The primary aim of the Settled Land Acts 1882 to 1890 was, as Lord Halsbury stated in Bruce v. Ailesbury , "to release

3782-532: Was abolished, all fiefs became "simple", without conditions attached to the tenancy. In English common law, the Crown had radical title or the allodium of all land in England, meaning that it was the ultimate "owner" of all land in the past feudal era. Allodial title is reserved to governments under a civil law structure. However, the Crown can grant ownership in an abstract entity – called an estate in land – which

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3844-804: Was itself condemned by the same court in obiter dictum in Trump v. Hawaii (2018). The arguments and reasoning of a dissenting judgment (the term used in the United Kingdom also constitute obiter dicta . These, however, might also be cited should a court determine that its previous decision was in error, as when the United States Supreme Court cited Justice Oliver Wendell Holmes Jr. 's dissent in Hammer v. Dagenhart when it overturned Hammer in United States v. Darby Lumber Co. In Shaw v DPP [1962]

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