1

I quote Justice William Deane in Calverley v Green [1984] HCA 81

  1. The third "presumption", usually called the "presumption of advancement", is not, if viewed in isolation, strictly a presumption at all. It is simply that there are certain relationships in which equity infers that any benefit which was provided for one party at the cost of the other has been so provided by way of "advancement" with the result that the prima facie position remains that the equitable interest [emphasis mine] is presumed to follow the legal estate and to be at home with the legal title or, in the words of Dixon C.J., McTiernan, Fullagar and Windeyer JJ. in Martin v. Martin [1959] HCA 62; (1959) 110 CLR 297, at p 303, that there is an "absence of any reason for assuming that a trust arose".

What was Deane J. trying to distinguish by writing all three of interest, estate, and title in this order?

What changes, if I permute these three nouns? For examples, if I swap estate ↔ with title?

is presumed to follow the legal TITLE and to be at home with the legal ESTATE

Or if I swap interest → with ESTATE, and estate → TITLE, and title → INTEREST?

the equitable ESTATE is presumed to follow the legal TITLE and to be at home with the legal INTEREST

1 Answer 1

3

Because they mean different things

For real estate:

  • the title belongs to the person whose name appears in the Land Registry Office as the owner.
  • the legal estate is the person who actually owns the land; barring error or fraud, this will be the person who holds the title.
  • many people can have an interest in the land. Obviously, the title holder and the estate holder, but also any mortgagees, anyone with easements of the land, anyone with mining or other similar rights over the land, and, very relevant in this case, anyone for whom the land is being held on trust or otherwise has an equitable interest.

If you change the order, you screw up the direction of the presumption: the title is presumed to identify the estate owner, who is presumed to hold the only equitable interest.

1
  • Deane J. didn't mention any "estate owner". Who is the "estate owner" in your answer? You wrote "legal estate is the person who actually owns the land", but "legal estate" differs from "estate owner". Mar 7 at 8:34

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .