Legal Glossary - E
A right of one party with respect to another party’s property, so as to benefit their own property. Typically easements allow for an access route, but may ensure non-obstruction of light, or other recognised restrictions. An easement must involve a property which benefits from it, a property which is imposed upon by it, and the two properties must be owned by different parties. There are various established methods of creating an easement.
A partial (or virtually entire) right to control an item of property. Equitable title can be obtained through payment enabling the title holder to obtain the title, or work done to improve the value of the property. The size of an equitable title equals the proportion of payment or work to the total value.
A rule of equity which prevents a person from asserting common law rights to the unfair disadvantage of another person. Only in Australia can it be used as a cause of action. It is of particular value where a party invests money in preparation during the negotiation of a contract, but the other party pulls out at the last moment.
The body of case law applied to situations where the strict formalities of common law would bring injustice. The rules of equity centre around acting fairly and upholding agreements. In international law equity refers only to the general concept of fairness.
The adjective of equity.
A form of property right deriving from the contribution of purchase funds, from the declaration or promise of the legal title holder, or from the free-of-charge application of labour and suchlike to improve the value of the item of property. Equitable title revolves around the basic principles underlying equity law and imparts a right to benefit from the item such that the legal title holder’s rights are compromised. Equitable title holders are entitled to a proportional payout upon sale of the property. Types of equitable title include a plain equitable title and the rights of trust beneficiaries.
Estate is used by lawyers a little differently to its common usage in the term, “real estate.” In law estate refers to particular kinds of proprietary interests which are recognised historically by common law. These include estate in fee simple and leasehold estate. The defining characteristic is that each is capable of vesting immediately in the executor of a deceased estate, as trustee.
Estate in fee simple
Land and all buildings and other fixtures on it. An estate in fee simple is comprised of the legal title (as recorded on the Torrens system register or as recorded in the title deed), and the right to control and benefit from the property, which arise for equitable title holders.
Execution (of contract, deed or other instrument)
The moment at which an undertaking comes into force is the moment of execution. It may involve the final signature, the finalisation of an agreement, or sealing and delivery of a deed, or the fulfilment of a condition.
A contract which has been agreed upon, but which has yet to be performed.
A document or item produced at court for the purpose of becoming part of the evidence in a proceeding.
A trust formed explicitly in writing, generally in the form of a deed. The description of the subject property, the identity of the beneficiaries, the manner of distribution of the property and the conditions affecting distribution are all to be stipulated in the written document.