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Fiji Legislation |
LAWS OF FIJI
Ed. 1978]
CHAPTER 130
PROPERTY LAW
ARRANGEMENT OF SECTIONS
PART I-PRELIMINARY
SECTION
1.
Short title.
2.
Interpretation.
3. Application of
Act and savings.
PART II-DEEDS AND OTHER INSTRUMENTS
4. Formalities of
deed.
5. Execution of instruments by
or on behalf of corporations.
6.
Receipt for consideration money.
7.
Persons taking who are not
parties.
8. Description of
deeds.
9. Exercise of
powers.
10.
Appointments.
11. Leases need not be
by deed.
12. Construction of
expressions and stipulations as to time in contracts, etc.
PART III-GENERAL RULES AFFECTING PROPERTY
13. Uses not
necessary.
14. Estates tail
abolished.
15. Freehold in future
may be created.
16. Creation by deed
of estate in chattel real.
17. When
contingent remainders capable of taking
effect.
18. Rights of entry,
etc.
19. Certain expressions to be
words of purchase; rule in Shelley's
case abolished.
20. Restriction on
executory limitations.
21. Abolition
of restraint upon anticipation.
22.
Presumption of survivorship.
23.
Equitable waste.
24. No merger by
operation of law.
25. Partial
release of land from rent.
26.
Corporations may hold as joint
tenants.
27. Disclaimer of
powers.
28. Intermediate income of
contingent or executory gifts.
29.
Receipts for income by married
infants.
30. "Heirs" and other words
interpreted.
31. "Heirs of the body"
and other words interpreted.
32.
Appointments valid notwithstanding objects
excluded.
33. Transfer by person of
property to himself.
PART
IV – PERPETUITIES AND ACCUMULATIONS
34.
Application.
35.
Interpretation.
36. The perpetuity
period.
37. Capacity to procreate or
bear a child.
38. Wait and see
rule.
39. Power of court to make
declaration as to validity of
limitations.
40. Invalid age
contingencies.
41. Class
gifts.
42. Order of applying
rules.
43. Unborn
spouses.
44. Dependent
limitations.
45.
Options.
46. Application of the rule
to possibilities of reverter, rights of entry and resulting
trusts.
47. Powers of
appointment.
48. Accumulations of
income.
49. Rule in
Whitby v. Mitchell
abolished.
50. Superannuation funds,
etc.
PART V-PROTECTION OF PURCHASERS AND CREDITORS
51. Alienation
with intent to defraud
creditors.
52. Voluntary transfer of
land with intent to defraud
purchaser.
53. Purchase in good
faith of reversion not to be set aside for undervalue
only.
54. Payment of consideration
money to barrister and solicitor.
PART VI-COVENANTS AND POWERS
55. Benefit of
covenants relating to land.
56.
Burden of covenants relating to
land.
57. Effect of covenant with
two or more jointly.
58. Covenants
and agreements made by a person with himself and
others.
59. Covenants to be joint
and several.
60. Implied covenants
may be negatived.
61. Benefit of
covenant for title.
PART VII-COVENANTS IMPLIED IN TRANSFERS GENERALLY
62. Covenants
implied in transfer by way of sale,
etc.
63. Covenant between transferee
and transferor implied in transfer subject to a
mortgage.
64. Covenant implied in
transfer of a lease.
65. Further
covenant implied in transfer of a
lease.
66. Covenant implied in
transfer by trustee or mortgagee.
PART VIII-MORTGAGES
67. Mortgage of a
lease to include tenant's
fixtures.
68. Covenants, etc.,
implied in all mortgages.
69.
Transferee of land subject to mortgage personally liable to
mortgagee.
70. Effect of advance on
joint account, etc.
71. Security for
further advances.
72. Repayment of
mortgages.
73. Mortgagor may require
mortgagee to transfer instead of
discharging.
74. Encumbrancee to
have the like right.
75. Mortgagee
may, after default, enter into
possession.
76. Further powers of
mortgagee as to receipt of rent,
etc.
77. Mortgagor in
default.
78. Notice not required
when money payable on demand.
79.
Mortgagee may sell.
80. Restriction
on power of variation in case of
land.
81. Application of purchase
money.
82. Mortgagee may appoint
receiver.
83. Mortgagee of leasehold
liable for rent after entry.
84.
Mortgagee's receipts, discharges,
etc.
85. Sections
68 to
83 to apply only in case or mortgage by
deed.
86. Equitable mortgages and
charges.
87. Restriction on
consolidation.
88. Retrospective
operation of Part VIII.
PART IX LEASES AND TENANCIES
89. Termination
of tenancies.
90. Covenants implied
in leases.
91. Powers in
lessor.
92. Implied covenant in a
sublease.
93. Effect of licence to
assign.
94. No fine for licence to
assign.
95. Assignment by trustee or
liquidator, etc.
96. Merger of
reversion not to affect
remedies.
97. Rent and benefit of
lessee's covenants to run with
reversion.
98. Obligation of
lessor's covenants to run with
reversion.
99. Apportionment of
conditions on severance, etc.
100.
Restriction on effect of
waiver.
101. Personal
representatives not personally liable for
covenants.
102. Tenant not
prejudiced by assignment before
notice.
103. Abolition of
interesse termini, and as to
reversionary leases and leases for
lives.
104. Effect of extinguishment
of reversion.
105. Restrictions on
and relief against forfeiture of leases.
PART X-EASEMENTS, ENCROACHMENTS AND MISTAKE
106. Easement in
gross permitted.
107. Access or use
of light or air.
108. Court may
authorise entry for erecting or repairing buildings,
etc.
109. Power of court to grant
special relief in cases of
encroachment.
110. Relief in cases
of mistake as to boundaries or identity of
land.
111. Recovery of payments made
under mistake of law.
112. Payments
made under mistake of law or fact nor always recoverable.
PART XI- ASSIGNMENTS OF THINGS IN ACTION
113. Assignment
of debts and choses in actions.
PART XII- POWERS OF ATTORNEY.
114. Execution by
attorney in his own name.
115.
Continuance until notice of death or revocation
received.
116. Irrevocable power of
attorney for value.
117. Power of
attorney made irrevocable for fixed
time.
118. Application to
corporations.
PART XIII- PARTITION OF LAND AND DIVISION OF CHATTELS
119. In action
for partition court may direct land to be
sold.
120. Proceeds of sale, how
applied.
121. Costs in partition
suits.
122. Division of
chattels.
PART XIV - APPORTIONMENT
123.
Interpretation.
124. Income
apportionable in respect of
time.
125. Time when apportioned
part payable.
126. Recovery of
apportioned parts.
127. Exceptions
and application.
PART XV SERVICE OF NOTICES
128. Service of
notices in case of registered
land
129. Service of notices in
other cases.
Schedules.
----------------------------------------------------
Act No. 18 of 1971
AN
ACT TO CONSOLIDATE AND AMEND THE LAW RELATING
TO
PROPERTY AND FOR INCIDENTAL AND
OTHER PURPOSES
[1st August, 1971]
PART I-PRELIMINARY
Short title
1. This Act may
be cited as the Property Law Act.
Interpretation
2. In this Act,
unless the context otherwise requires-
"court" means the Supreme Court;
"encumbrance" means all mortgages, charges, estates or interests; and encumbrance has a corresponding meaning, and includes every person entitled to the benefit of an encumbrance, or entitled to require the payment or performance thereof;
"executors" and "administrators" of a deceased person mean respectively the persons to whom probate of the will or letters of administration of the estate of the deceased has been granted by the proper court, whether for general, special or limited purposes; and "executors" includes executors by right of representation;
"fine" includes premium or foregift, and any payment, consideration, or benefit in the nature of a fine, premium or foregift;
"income", when used with reference to land, includes rents and profits;
"instrument" includes a deed and a will and every document registered or capable of registration under the Land Transfer Act, or in respect of which any memorial is by that Act directed, required or permitted to be entered in the Register Book or endorsed on any registered instrument;
"land" includes all estates and interests in land;
"lease" includes a sub-lease and an agreement for a lease or sub-lease or for a tenancy and "lessee" and "lessor" have corresponding meanings;
"mortgage" includes a mortgage registered or capable of being registered under the provisions of the Land Transfer Act, and also includes a charge on any property for securing money or money's worth or the performance or any obligation;
(Cap 131)
"mortgage money" means all moneys, whether principal sum, annuity, rentcharge or other periodical payment, interest or other moneys whatsoever, owing under or secured by a mortgage;
"mortgagee" includes any person from time to time deriving title under the original mortgagee; and "mortgagee in possession" means a mortgagee who in right of the mortgage has entered into and is in possession of the mortgaged property;
"mortgagor" includes any person from time to time deriving title under the original mortgagor, or entitled to redeem or pay off a mortgage, according to his estate, interest or right in the mortgaged property;
"owner" means the owner of any property or any estate or interest therein, and includes a proprietor;
"personal representative" means an executor or administrator;
"possession" when used with reference to land, includes the receipt of income therefrom;
"property" includes real and personal property, and any estate or interest in any property real or personal, and any debt, and any thing in action, and any other right or interest;
"proprietor" means the person who for the time being is registered as the proprietor of land subject to the provisions of the Land Transfer Act, or of any estate or interest therein and in the case of property or any estate or interest therein not subject to the provisions of that Act whether on account of non-registration thereunder or otherwise means the owner of that property or person entitled to an estate or interest therein;
(Cap. 131)
"purchaser" means a purchaser in good faith for valuable consideration and includes a lessee, mortgagee or other person who for valuable consideration acquires an interest in property; and where the context so requires "purchaser" includes an intending purchaser and "purchase" has a corresponding meaning;
"registered" or "duly registered" in the case of land or any estate or interest therein means registered in the manner provided by the Land Transfer Act; and "the register" and "registration" have corresponding meanings;
(Cap. 131)
"rent" includes yearly or other rent, toll, duty, royalty, or other reservation by measurement or otherwise;
"sale" means a sale properly so called;
"transfer" includes a transfer registered or capable of being registered under the provisions of the Land Transfer Act, or any other Act and also includes any assignment, appointment, lease, settlement or other transfer or assurance of any property whether or not the same is so registered or is capable of being so registered and "transfers" or "transferred" have corresponding meanings;
(Cap. 131)
"trust" and "trustee" have the same meaning as in the Trustee Act;
(Cap. 65)
"will" includes codicil.
Application of Act and savings
3.-(1) This Act
shall be read and construed so as not to conflict with the provisions either of
the Land Transfer Act, or the Agricultural Landlord and Tenant
Act.
(Cap. 131, Cap.
270.)
(2) Subject to the provisions of subsection (1) and except
as otherwise expressly provided in this Act, all of the provisions of this
Act
shall, as far as they are applicable, apply to land and instruments subject to
the provisions of the Land Transfer Act and of the Agricultural Landlord and
Tenant Act.
(Cap. 131, Cap.
270.)
(3) Without prejudice to the operation of the Interpretation
Act, any alteration, by this Act, of the law, shall not, unless otherwise
expressly provided by this Act affect-
(Cap. 7.)
(a) any right accrued, or obligation incurred, before the commencement of this Act under the law so altered; or
(b) the validity or invalidity, or any operation, effect or consequence, of any instrument executed or made, or of anything done or suffered before that date; or
(c) any action, proceeding or thing pending on that date or uncompleted on that date and that action, proceeding and thing may be carried on and completed as if the law had not been altered.
PART II-DEEDS AND OTHER INSTRUMENTS
Formalities of deed
4.-(1) Every deed,
whether or not affecting property, shall be signed by the party to be bound
thereby, and shall also be attested by
at least one witness not being a party to
the deed, but no particular form of words shall be requisite for the
attestation.
(2) Sealing of a deed is not necessary except in the case of
a deed executed by a corporation under its common or official seal.
(3)
Formal delivery and indenting are not necessary in any case.
(4) Every
instrument expressed or purporting to be an indenture or a deed or an agreement
under seal or otherwise purporting to be
a document executed under seal and
which is executed as required by this section shall have the same effect as a
deed duly executed
in accordance with the law in force immediately prior to the
commencement of this Act.
(5) Every instrument registered or capable of
being registered under the provisions of the Land Transfer Act, shall upon
execution have the effect of a deed made between the parties executing the same.
(Cap. 131.)
Execution of instruments by or on behalf of corporations
5.-(1) A deed
shall be deemed to have been duly executed by a corporation aggregate in favour
of a purchaser, if the seal of that corporation
is affixed to the deed in the
presence of and attested by a person who is its clerk, secretary or other
permanent officer or his
deputy, and a member of its board of directors, council
or other governing body.
(2) Where a seal purporting to be the seal of a
corporation aggregate has been affixed to a deed, attested by a person and a
member
purporting to be such a person and such a member as is referred to in
subsection (1), the deed shall be deemed to have been duly
executed and to have
taken effect accordingly.
(3) The board of directors, council or other
governing body of a corporation aggregate may, by resolution or otherwise,
appoint an
agent either generally or in any particular case, to execute on
behalf of the corporation any agreement or other instrument not under
seal in
relation to any matter within the powers of the corporation.
(4) When a
person is authorised under a power of attorney or under any statutory or other
power to execute any instrument in the name
of, or on behalf of a corporation,
sole or aggregate, he may as attorney execute the instrument by signing the name
of the corporation
and adding the words "by its attorney" and his own signature
in the presence of at least one witness and, subject to compliance by
such
attorney with the provisions of subsection (3) of section 115, an instrument so
executed shall take effect and be valid as if
duly executed by the
corporation.
(5) Where a corporation aggregate is authorised under a
power of attorney or under any statutory or other power to execute any
instrument
in the name or on behalf of any other person (including another
corporation), an officer of the corporation aggregate appointed for
that purpose
by the board of directors, council or other governing body of that corporation
by resolution or otherwise, may execute
the instrument in the name of that other
person; and if the instrument appears to be executed by an officer so appointed,
then in
favour of a purchaser the instrument shall be deemed to have been
executed by an officer duly authorised.
(6) The foregoing provisions of
this section apply to transactions wherever effected, but only to instruments
executed after the date
of the coming into operation of this Act, except that,
in the case of powers or appointments of an agent or officer, those provisions
apply whether the power was conferred or the appointment was made before or
after that date.
(7) Notwithstanding anything contained in this section,
any mode of execution or attestation authorised by law or by practice or by
the
statute, charter, memorandum or articles, deed or settlement or other instrument
constituting the corporation or regulating the
affairs thereof, are (in addition
to the modes authorised by this section) as effectual as if this section had not
come into operation.
Receipt for consideration money
6. An
acknowledgement of the receipt of the consideration contained in the body of a
deed shall be as valid and effectual in all respects
as if the same had also
been endorsed thereon.
Persons taking who are not parties
7.-(1) A person
may take an immediate or other interest in land or other property, or the
benefit of any condition, right of entry,
covenant or agreement over or
respecting land or other property, although he is not named as a party to the
transfer or other instrument
that relates to the land or property.
(2) In
cases other than those to which the provisions of subsection (1) are applicable,
where a contract expressly in its terms purports
to confer a benefit directly on
a person who is not named as a party to the contract, that contract is
enforceable by that person
in his own name subject to -
(a) all defences which would have been available to the defendant had the plaintiff been named as a party to the contract;
(b) each person named as a party to the contract being joined as a party in the proceedings; and
(c) the defendant against whom relief is sought being entitled to enforce as against the plaintiff all obligations which in the terms of the contract are imposed on the plaintiff for the benefit of the defendant.
(3) Unless the contract
referred to in subsection (2) otherwise provides, the contract may be cancelled
by the mutual consent of the
persons named as parties thereto at any time before
the person referred to in that subsection has adopted it either expressly or
by
conduct.
Description of deeds
8. Any deed,
whether or not it is an indenture, may be described (at the commencement thereof
or otherwise) as a deed simply, or as
a transfer, deed of exchange, settlement,
mortgage, charge, transfer of mortgage, appointment, lease or otherwise
according to the
nature of the transaction intended to be effected.
Exercise of powers
9. Where a power
of appointment by deed or writing, otherwise than by will, is exercised by deed
executed in the manner required by
this Act, the deed shall be deemed to be a
valid exercise of the power, notwithstanding that by the instrument creating the
power
some additional or other form of execution is required.
Appointments
10. No
appointment to be made by deed or writing (otherwise than by will) in exercise
of a power shall be valid unless the same is executed
as a deed in accordance
with the provisions of this Act.
Leases need not be by deed
11. A deed is not
necessary to the validity of a lease.
Construction of expressions and as to time in contracts etc.
12. -(1) In all
deeds, contracts, wills, orders and other instruments executed or made on or
after the commencement of this Act, unless
the context otherwise
requires:-
(a) "month" means a calendar month;
(b) "person" includes a corporation;
(c) the singular includes the plural and vice versa;
(d) the masculine includes the feminine and vice versa;
(e) every word in either of the said numbers or genders shall be construed as including a body corporate.
(2) Stipulations in a contract, as
to time or otherwise, that according to rules of equity are not deemed to be or
to have become
of the essence of the contract, shall be construed and have
effect at law in accordance with the rules of equity.
PART III - GENERAL RULES AFFECTING PROPERTY
Uses not necessary
13. Every
limitation which may be made by way of use operating under the imperial
enactment known as the Statute of Uses or under this
Act may be made by direct
transfer without the intervention of uses.
Estates tail abolished
14. (1) In any
instrument coming into operation after the commencement of this Act a limitation
which, if this section had not been
passed, would have created an estate tail
(legal or equitable) in any land in favour of any person shall be deemed to
create an estate
in fee simple (legal or equitable, as the case may be) in that
land in favour of that person to the exclusion of all estates or interests
limited to take effect after the determination or in defeasance of any such
estate tail.
(2) Where at the commencement of this Act any person is
entitled to an estate tail (legal or equitable), whether in possession,
reversion
or remainder, in any land, that person, save as hereinafter mentioned,
shall be deemed to be entitled to an estate in fee simple
(legal or equitable,
as the case may be), in that land, to the exclusion of all estates or interests
limited to take effect after
the determination or in defeasance of any such
estate tail.
(3) In subsection (2) the expression "estate tail" includes
that estate in fee into which an estate tail is converted where the issue
in
tail is barred, but the persons claiming estates by way of remainder are not
barred; also an estate in fee voidable or determinable
by the entry of the issue
in tail; but does not include the estate of a tenant in tail after possibility
of issued extinct.
Freehold in future may be created
15. An estate of
freehold to take effect at a future time may be created by any deed by which a
present estate of freehold may be created.
Creation by deed of estate in chattel real
16. Any estate or
interest that is capable of being created by will in any chattel real may also
be created by deed.
When contingent remainders capable of taking effect
17.-(1) A
contingent remainder shall be capable of taking effect notwithstanding the
destruction or determination by any means of the
particular estate immediately
preceding, and notwithstanding that it may have been created expectant on the
termination of a term
of years.
(2) A contingent remainder or a
contingent interest lying between two estates vested in the same person shall
prevent the merger of
those two estates.
Rights of entry, etc.
18. Every right
of entry, contingent remainder, and every contingent or executory or future
estate, right or interest in property, may
be transferred by deed.
Certain expressions to be words of purchase; rule in Shelley's case abolished
19. Where in an
instrument coming into operation after the commencement of this Act a remainder
is limited mediately or immediately
to the heirs or heirs of the body of a
person to whom an estate for any life in the same property is expressly given,
the estate
of that person shall be an estate for the life mentioned with
remainder to the persons who on the death of that person intestate
would be
beneficially entitled to his property and in the same shares.
Restriction on executory limitations
20. Where there
is a person entitled to land for an estate in fee, or for a term of years
absolute, or determinable on life, or for
term of life, with an executory
limitation over on default or failure of all or any of his issue, whether within
or at any specified
period or time or not, that executory limitation shall be or
become void and incapable of taking effect if and as soon as there is
living any
issue that has attained the age of twenty-one years, of the class of default or
failure whereof the limitation over was
to take effect.
Abolition of restraint upon anticipation
21 .-(1) A
restriction upon anticipation or alienation attached to the enjoyment of any
property by a woman that could not have been
attached to the enjoyment of that
property by a man is of no effect.
(2) This section applies to any
instrument whether executed before, on or after the commencement of this
Act.
Presumption of survivorship
22. In all cases
where, on or after the commencement of this Act, two or more persons have died
in circumstances rendering it uncertain
which of them survived the other or
others, those deaths shall (subject to any order of the court) for all purposes
affecting the
title to property, be presumed to have occurred in order of
seniority, and accordingly the younger shall be deemed to have survived
the
elder.
Equitable waste
23. An estate for
life without impeachment of waste shall not confer or be deemed to have
conferred upon the tenant for life any legal
right to commit waste of the
description known as equitable waste, unless an intention to confer that right
expressly appears by
the instrument creating that estate.
No merger by operation of law
24. There shall
not be any merger by operation of law only of any estate the beneficial interest
in which would not be deemed to be merged
or extinguished in equity.
Partial release of land from rent
25. A release
from a rent of part of the land out of which it is payable does not extinguish
the whole rent, but operates only to bar
the right to recover any part of the
rent out of the land released, without prejudice to the rights of any persons
interested in
the land remaining unreleased, and not concurring in or confirming
the release.
Corporations may hold as joint tenants
26.-(1) A body
corporate shall be capable of acquiring and holding any property in joint
tenancy in the same manner as if it were an
individual, and where a body
corporate and an individual or two or more bodies corporate become entitled to
any property under circumstances
or by virtue of any instrument which would, if
the body corporate had been an individual, have created a joint tenancy they
shall
be entitled to the property as joint tenants:
Provided that the
acquisition and holding of property by a body corporate in joint tenancy shall
be subject to the like conditions
and restrictions as attach to the acquisition
and holding of property by a body corporate in severalty.
(2) Where a
body corporate is a joint tenant of any property, then on its dissolution the
property shall devolve on the other joint
tenant.
Disclaimer of powers
27.-(1) A person
to whom is given any power, whether coupled with an interest or not, may by
deed, disclaim, release or contract not
to exercise the power, and after such
disclaimer, release or contract shall not be capable of exercising or joining in
the exercise
of the power.
(2) On any such disclaimer, release or
contract the power may be exercised by the other or others, or the survivor or
survivors of
the others, of the persons to whom the power is given, unless the
contrary is expressed in the instrument creating the power.
(3) This
section applies to powers created by instruments coming into operation either
before or after the commencement of this Act.
Intermediate income of contingent or executory gifts
28. Where under
an instrument, other than a will, property stands limited to a person for a
contingent or future interest, or stands
limited to trustees upon trust for a
person whose interest is contingent or executory, that interest shall carry the
intermediate
income of that property, from the time when the instrument comes
into operation, except so far as the income or any part thereof
may be otherwise
expressly disposed of.
Receipts for income by married infants
29. A married
infant shall have power to give valid receipts for all income, including
accumulations of income made during minority,
to which the infant may be
entitled in like manner as if the infant were of full age.
"Heirs" and other words interpreted
30.-(1) Where by
or under the terms of any instrument coming into operation after the
commencement of this Act, any property would except
for the provisions of this
Act, vest in -
(a) the heir or heirs of any person; or
(b) the next of kin of any person, such property shall vest in the persons who on the death of the person intestate would be beneficially entitled to his real and personal estate upon intestacy, and in the same shares.
(2) This section
applies only if and so far as a contrary or other intention is not expressed in
the instrument, and shall have effect
subject to the terms of the instrument and
to the provisions therein contained.
"Heirs of the body" and other words interpreted
31.-(1) Where by
or under the terms of any instrument coming into operation after the
commencement of this Act, any property would,
except for the provisions of this
Act, vest in -
(a) the heir or heirs of the body of any person; or
(b) the heir or heirs male of any person or the heir or heirs male of the body of any person; or
(c) the heir or heirs female of any person, or the heir or heirs female of the body of any person,
the property shall vest as follows:-
in case (a) in the issue of that person as tenants in common per stirpes; and
in case (b) in the sons and issue of sons of that person as tenants in common per stirpes; and
in case (c) in the daughters and the issue of daughters of that person as tenants in common per stirpes.
(2) This section applies only if and
so far as a contrary or other intention is not expressed in the instrument, and
shall have effect
subject to the terms of the instrument and to the provisions
therein contained.
Appointments valid notwithstanding objects excluded
32.-(1) An
appointment in exercise of any power to appoint any property amongst several
objects shall be valid and effectual notwithstanding
that any one or more of the
objects do not by the appointment or in default of appointment take a share or
shares of the property.
(2) Nothing in this section shall prejudice or
affect any provision in any instrument creating any power which declares the
amount
of the share or shares from which no object of the power shall be
excluded, or some one or more object or objects shall not be excluded.
Transfer by person of property to himself
33. A person may
transfer property to himself or to himself and another person or
persons.
PART IV - PERPETUITIES AND ACCUMULATIONS
Application
34.-(1) Except
where otherwise expressly provided in this Part, this Part -
(a) insofar as it applies to wills, applies only to the wills of testators dying after the commencement of this Act; and
(b) insofar as it applies to instruments other than wills, applies only to instruments executed after that date.
(2) This Part binds the Crown.
Interpretation
35. In this Part,
unless the context otherwise requires -
"instrument" includes a will and also includes an instrument, testamentary or otherwise, exercising a power of appointment, whether general or special, even if the power were created before this Part came into operation; but does not include any written law;
"limitation" includes any provision in an instrument whereby any property, or any interest in any property, or any right, power, authority or discretion in or over or in connection with any property, is or purports to be devised or bequeathed to, or created for, or given or granted or appointed to or conferred upon, or otherwise limited to, any person or purpose, and whether subject to a condition, precedent or subsequent, or not.
The perpetuity period
36. In
determining whether any limitation is invalid as infringing the rule of law
known as the rule against perpetuities, the perpetuity
period is, for the
purposes of that rule, such period of years not exceeding eighty as may be
specified in the instrument creating
that limitation or, if no such period of
years is specified in such instrument, the period that is applicable under that
rule at
law.
Capacity to procreate or bear a child
37. -(1) This
section applies whenever, in determining whether any limitation is invalid as
infringing the rule against perpetuities,
or in determining the right of any
persons to put an end to a trust or accumulation, or generally in the management
or administration
of any trust, estate or fund, or for any purposes relating to
the disposition, transmission or devolution of property, it becomes
relevant to
enquire whether any person is or at a relevant date was or will be capable of
procreating or bearing a child.
(2) Where this section applies, there is
a presumption, rebuttable by sufficient evidence to the contrary tendered at the
time at
which the matter falls for decision (but not subsequently), that
-
(a) a woman who has attained the age of fifty-five years is incapable of bearing a child; and
(b) a male or female who has not attained the age of twelve years is incapable of procreating or bearing a child.
(3) Where this section applies, medical
evidence that a male or female of any age is or at a relevant date was or will
be incapable
of procreating or bearing a child is admissible in proceedings in
order to establish that incapacity, and the court may accept any
such evidence
of a high degree of improbability of procreating or childbearing as it thinks
proper as establishing the incapacity.
(4) Any decision of the court, in
which any such presumption as is mentioned in subsection (2) is applied or in
which any such evidence
as is mentioned in subsection (3) is accepted remains
effective notwithstanding the subsequent birth of a child; but if a limitation,
that is not itself invalid as infringing the rule against perpetuities, confers
upon that child or his spouse, or upon his issue
or the spouse of any of his
issue, a right to any property, that right (including any right to follow or
trace the property) is not
affected by the decision of the court.
Wait and see rule
38.-(1) A
limitation shall not be declared or treated as invalid, as infringing the rule
against perpetuities, unless and until it is
certain that the interest that it
creates cannot vest within the perpetuity period or, if the limitation creates
or confers a general
power of appointment over or in connexion with property,
that the power cannot become exercisable within the perpetuity period, but
if
the power becomes exercisable, within that period, it is valid.
(2) Where
a limitation creates a power exercisable over or in connexion with any property,
whether that power be a special power of
appointment, or a power of advancement
or of distribution under a discretionary trust, or any other power (not being a
general power
of appointment or a power that is exempted from the application of
the rule against perpetuities by section
25 of the Trustee Act), that limitation
is valid, so far as the rule against perpetuities is concerned
-
(Cap 65)
(a) if the power is exercisable only during the perpetuity period; or
(b) if and to the extent that the power is exercised during the perpetuity period.
(3) Nothing in this section makes any
person a life in being for the purpose of ascertaining the perpetuity period
unless that person
would have been reckoned a life in being for that purpose if
this section had not been enacted.
Power of court to make declaration as to validity of limitations
39. -(1) A
trustee of any property, or any person interested under, or on the invalidity
of, a limitation of property, may at any time
apply to the court for a
declaration as to the validity, in respect of the rule against perpetuities, of
a limitation of that property.
(2) The court may, on an application under
subsection (1), make a declaration, on the basis of facts existing and events
that have
occurred at the time the declaration is made, as to the validity or
otherwise of the limitation in respect of which the application
is made; but the
court shall not make a declaration in respect of any limitation the validity of
which cannot be determined at the
time at which the court is asked to make the
declaration.
Invalid age contingencies
40. -(1) Where in
an instrument the absolute vesting either of capital or income of property, or
the ascertainment of a beneficiary
or class of beneficiaries, is made to depend
on the attainment by any person of an age exceeding twenty-one years, and the
gift to
that beneficiary or class or any member thereof, or any gift over,
remainder, executory limitation or trust arising on the total
or partial failure
of the original gift, would, but for this section, be rendered invalid as
infringing the rule against perpetuities,
the instrument takes effect for the
purposes of that gift, gift over, remainder, executory limitation or trust as if
the absolute
vesting or ascertainment had been made to depend on the person
attaining the age of twenty one years, and that age shall be substituted
for the
age stated in the instrument.
(2) This section applies to any instrument
other than a will executed after the commencement of this Act and to any
testamentary appointment
(whether made in exercise of a general or special
power), devise or bequest contained in the will of a person dying after that
date,
whether the will was made before or after that date; but, in the case of
an instrument executed, and the will of a person dying,
after the commencement
of this Act, this section applies only to the extent provided in section
42.
(3) This section applies
without prejudice to any provision whereby the absolute vesting either of
capital or income of property,
or the ascertainment of a beneficiary or class of
beneficiaries, is also made to depend on the marriage of any person, or any
other
event which may occur before the age stated in the instrument is
attained.
Class gifts
41.-(1) A
limitation to a class of persons is not invalid as infringing the rule against
perpetuities by reason of the failure of the
limitation as to some only of the
members of the class, but the limitation shall, in that case, be construed and
take effect as a
limitation only to those members of the class who attain a
vested interest within the perpetuity period.
(2) This section applies
only to the extent provided in section
42.
Order of applying rules
42.-(1) The
provisions of section 40 shall not be
applied -
(a) unless and until it is certain that a limitation as worded is invalid as infringing the rule against perpetuities; and
(b) unless either -
(i) the application of the provisions of that section would render the limitation valid; or
(ii) the application of the provisions of that section, in conjunction with the provisions of section 41, would render the limitation valid.
(2) The
provisions of section 41 shall not be
applied unless and until -
(a) it is certain that a limitation as worded is invalid as infringing the rule against perpetuities; and
(b) any invalid age contingency in that limitation has been reduced in accordance with the provisions of section 40 as applied by subsection (1).
43.
The widow or widower of a person who is a life in being for the purpose of the
rule against perpetuities shall be deemed a life
in being for the purpose of
-
(a) a limitation in favour of that widow or widower; and
(b) a limitation in favour of a person who attains, or of a class the members of which attain, according to the limitation, a vested interest on or after the death of the survivor of that person and his spouse.
Dependent limitations
44. -(1) A
limitation, that itself complies with the rule against perpetuities, is not
invalidated solely by reason of its being preceded
by one or more invalid
limitations, whether or not it expressly, or by implication, takes effect after,
or subject to, or is dependent
upon, those invalid limitations or any of
them.
.
(2) Where a limitation is invalid as infringing the rule against
perpetuities, any subsequent valid limitation is thereby accelerated.
Options
45. -(1) The rule
against perpetuities does not apply to -
(a) an option granted to a lessee in respect of the property demised, being an option exercisable only during the currency of the lease or within one year after the expiration thereof and enabling the lessee or the lessee for the time being to purchase the freehold or other superior interest in the demised property; or
(b) an option to acquire an interest in land, not being an option to which paragraph (a) refers.
(2) An option to which
paragraph (b) of subsection (1)
refers, and which according to its terms is, or may be, exercisable at a date
more than twenty-one years from the
date of its grant, becomes void, on the
expiry of twenty-one years from the date of its grant, as between the original
parties to
that grant and all persons claiming through them.
(3) Nothing
in this section affects an option for renewal contained in a lease or a
pre-emptive right to acquire an individual unit
or individual units of
accommodation in a building containing several units.
Application of the rule to possibilities of reverter, rights of entry and resulting trusts
46.-(1) The rule
against perpetuities as amended by this Part applies -
(a) to a possibility of reverter in land consequent upon a fee simple determinable; and so that, if the fee simple does not determine within the perpetuity period, it thereafter continues as a fee simple absolute;
(b) to a right of entry for condition broken the exercise of which may determine a fee simple subject to a condition subsequent; and so that, if the right of entry is not exercised within the perpetuity period, the fee simple thereafter continues as a fee simple absolute; and
(c) to an interest in property by way of resulting trust analogous to a possibility to a reverter in land; and so that, if the initial trust does not determine within the perpetuity period, the interest it creates thereafter continues as an absolute interest.
(2) The provisions of subsection (1)
apply as therein provided, whether the determinable or conditional estate or
interest is charitable
or not, except that the rule against perpetuities does
not apply to a gift over from one charity to another.
Powers of appointment
47. For all
purposes connected with the rule against perpetuities, a power of appointment
under which there is a sole donee who is at
all times free, without the
concurrence of any other person, to appoint the whole of the property to himself
is a general power,
and every other power of appointment is a special power;
but, notwithstanding the foregoing provisions of this section, an appointment
made by will under a power that would, but for the fact that it was made
exercisable only by will, have been a general power is to
be treated as having
been made under a general power for all purposes connected with the rule against
perpetuities.
Accumulations of income
48.-(1) Where
property is settled or disposed of in such manner that the income thereof may or
shall be accumulated wholly or in part,
the power or direction to accumulate
that income is valid if the disposition of the accumulated income is, or may be,
valid and not
otherwise.
(2) Nothing in this section affects the right of
any person or persons to terminate an accumulation that is for his or their
benefit
or any jurisdiction or power of the court to maintain or advance out of
accumulations or any powers of a trustee under Part V of
the Trustee
Act.
(Cap 65).
(3) For the
avoidance of doubt, it is hereby declared that this section has effect only as
provided by section 34.
Rule in Whitby v. Mitchell abolished
49. The rule of
law prohibiting the limitation after a life interest to an unborn person, of an
interest in land to the unborn child
or other issue of an unborn person is
hereby abolished, but without prejudice to any other rule relating to
perpetuities.
Superannuation funds, etc.
50.-(1) The rule
against perpetuities does not apply and shall be deemed never to have applied to
-
(a) a trust or fund established for the purpose of making provision by way of assistance, benefit, superannuation, allowances, gratuities or pensions for the employees of any employer or the widows, widowers, children, grandchildren, parents or dependants of any of those employees or for any persons duly selected or nominated for that purpose pursuant to the provisions of the trust or fund; and
(b) a trust or fund established for the purpose of making provision by way of superannuation for persons (not being employees) engaged in any lawful profession, trade, occupation or calling or the widows, widowers, children, grandchildren, parents or dependants of any of those persons or for any persons duly selected or nominated for that purpose pursuant to the provisions of the trust or fund.
(2) In
paragraph (a) of subsection (1),
"employee" includes any director, officer, servant or person at any time in the
employment-
(a) of an employer;
(b) of an employer that is a subsidiary of an employer; or
(c) of an employer that is allied to, or associated with, an employer; or
(d) of an employer that is allied to, or associated with, a subsidiary of an
employer; or
(e) of an employer having a subsidiary; or
(f) of an employer whose business is acquired by an employer, that establishes or contributes to a trust or fund such as is mentioned in that paragraph; and in this subsection "employer" includes a company.
PART
V-PROTECTION OF PURCHASERS
AND
CREDITORS
Alienation with intent to defraud creditors
51.-(1) Save as
provided by this section, every alienation of property with intent to defraud
creditors shall be voidable at the instance
of the person thereby
prejudiced.
(2) This section does not affect any law for the time being
in force relating to bankruptcy.
(3) This section does not extend to any
estate or interest in property alienated to a purchaser in good faith not
having, at the time
of the alienation, notice of the intention to defraud
creditors.
Voluntary transfer of land with intent to defraud purchaser
52.-(1) Every
instrument (other than a will) which operates, or on registration would operate,
as a voluntary alienation of land shall,
if made with intent to defraud a
subsequent purchaser, be voidable at the instance of that subsequent
purchaser.
(2) For the purposes of this section, no such instrument
shall, if registered before a subsequent purchase, be deemed to have been
made
with intent to defraud by reason only of that purchase, or that the instrument
was not made for valuable consideration.
Purchase in good faith of reversion not to be set aside for undervalue only
53. No purchase
of any reversionary interest in real or personal estate made in good faith and
without fraud or unfair dealing shall
hereafter be opened or set aside merely on
the ground of undervalue.
Payment of consideration money to barrister and solicitor
54.-(1) Where a
barrister and solicitor produces an instrument having in the body thereof or
endorsed thereupon a receipt for consideration
money or other consideration, the
instrument being executed or the endorsed receipt being signed by the person
entitled to give a
receipt for that consideration, the instrument shall be
sufficient authority to the person liable to pay or give the consideration
for
his paying or giving the same to the barrister and solicitor, and it shall not
be necessary for the barrister and solicitor to
produce any separate or other
direction or authority in that behalf from the person who executed or signed the
instrument or receipt.
(2) This section also applies where the instrument
is executed or the receipt is signed by trustees.
PART VI - COVENANTS AND POWERS
Benefit of covenants relating to land
55.-(1) A
covenant, whether express or implied by or under the provisions of this or any
other Act, relating to any land of the covenantee
shall, unless a contrary
intention is expressed, be deemed to be made with the covenantee and his
successors in title and the persons
deriving title under him or them, and,
subject as aforesaid, shall have effect as if those successors and other persons
were expressed.
(2) For the purposes of this section, in connexion with
covenants restrictive of the user of land, the expression "successors in title"
shall be deemed to include the owners and occupiers for the time being of the
land of the covenantee intended to be benefited.
Burden of covenants relating to land
56.-(1) A
covenant, whether express or implied by or under the provisions of this or any
other Act, relating to any land of a covenantor
or capable of being bound by him
by covenant shall, unless a contrary intention is expressed, be deemed to be
made by the covenantor
on behalf of himself and his successors in title and the
persons deriving title under him or them, and, subject as aforesaid, shall
have
effect as if those successors and other persons were expressed.
(2) This
section extends to a covenant to do some act relating to the land,
notwithstanding that the subject matter may not be in
existence when the
covenant is made.
(3) For the purposes of this section, in connexion with
covenants restrictive of the user of land, the expression "successors in title"
shall be deemed to include the owners and occupiers for the time being of the
land.
Effect of covenant with two or more jointly
57. -(1) A
covenant, whether express or implied by or under the provisions of this or any
other Act, and a contract by deed, and a bond
or obligation by deed, made with
two or more jointly, to pay money, or to transfer property or to do any other
act to them or for
their benefit shall be deemed to include, and shall by virtue
of the provisions of this Act imply, an obligation to do the act to
or for the
benefit of the survivor or survivors of them, and to or for the benefit of any
other person on whom devolves the right
to sue on the covenant, contract, bond
or obligation.
(2) This section applies only in so far as a contrary
intention is not expressed in the deed containing the covenant or contract,
or
in the bond or obligation, and shall have effect subject to the provisions
thereof.
Covenants and agreements made by a person with himself and others
58. A covenant,
whether express or implied by or under the provisions of this or any other Act,
or an agreement made by a person with
himself and another or others, shall be
construed and be capable of being enforced in like manner as if the covenant or
agreement
had been made with the other or others.
Covenants to be joint and several
59. Where under a
covenant whether express or implied by or under the provisions of this or any
other Act, more persons than one are
covenantors, the covenant shall, unless a
contrary intention is expressed, be deemed to bind the covenantors and any two
or greater
number of them jointly and each of them severally.
Implied covenants may be negatived
60. A covenant
implied or a power conferred by or under the provisions of this or any other Act
shall have the same force and effect,
and may be enforced in the same manner, as
if it had been set out at length in the instrument:
Provided that, unless
otherwise expressed in this or such other Act, any such covenant or power may be
negatived, varied or extended
in the instrument, or by a memorandum in writing
endorsed thereon and executed as a deed is required to be executed by the
parties
to the instrument intended to be bound thereby.
Benefit of covenant for title
61. The benefit
of a covenant for title implied by or under the provisions of this or any other
Act shall be annexed and incident to
and shall go with the estate and interest
of the implied covenantee, and may be enforced by any person in whom that estate
or interest
is, for the whole or any part thereof, from time to time
vested.
PART VII - COVENANTS IMPLIED IN TRANSFERS GENERALLY
Covenants implied in transfer by way of sale, etc.
62. -(1) In every
transfer by way of sale, marriage settlement or lease, and in every other
transfer for valuable consideration, there
shall be implied (except where the
transferor is a trustee or mortgagee of the property concerned) the following
covenants by the
transferor with the transferee:-
(a) a covenant that the transferor has good right and full power to transfer and assure the property purported to be transferred, and that free and clear from all encumbrances other than such as are mentioned in the transfer;
(b) a covenant that the transferee of the property and all persons claiming through or under him, shall quietly enjoy the same without any disturbance by the transferor or by any person claiming through or under him;
(c) a covenant that the transferor and his personal representatives and all other persons having or claiming any interest in the subject-matter of the transfer, will, at the cost of the person requiring the same, do and execute all such acts and transfers for the better assuring of the property purported to be thereby transferred as may from time to time be reasonably required by the transferee or any person claiming through or under him.
Covenant between transferee and transferor implied in transfer subject to a mortgage
63. In every
transfer of land subject to a mortgage there shall be implied a covenant by the
transferee with the transferor that the
transferee will pay the money secured by
such mortgage and perform and observe all the covenants, conditions and other
provisions
contained or implied in such mortgage and will indemnify the
transferor against all liability in respect of the same.
Covenant implied in transfer of a lease
64. In every
transfer of a lease there shall be implied a covenant by the transferee with the
transferor that the transferee will pay
the rent reserved by the lease and
perform and observe all the covenants, conditions and other provisions contained
or implied in
the lease and will indemnify the transferor against all liability
in respect of the same.
Further covenant implied in transfer of a lease
65. In every
transfer of a lease (except where the transferor is a trustee or mortgagee of
the lease) there shall be implied a covenant
by the transferor with the
transferee that the rent payable under the lease and the covenants and
conditions of the lease to be paid
or performed and observed by the lessee have
been respectively paid, performed and observed up to the date of the
transfer.
Covenant implied in transfer by trustee or mortgagee
66. Where the
transferor is a trustee or mortgagee of the property transferred there shall be
implied the following covenant on the
part of the transferor, which covenant
shall be deemed to extend to his own acts only, namely, that he has not executed
or done,
or knowingly suffered, or been party or privy to, any deed or thing
whereby or by means whereof the subject-matter of the transfer
or any part
thereof is or may be impeached, charged, affected or encumbered in title, estate
or otherwise, or whereby or by means
whereof he is in any wise hindered from
transferring the subject-matter of the transfer or any part thereof in the
manner in which
it is expressed to be transferred.
PART VIII - MORTGAGES
Mortgage of a lease to include tenant's fixtures
67. A mortgage of
a lease shall include and be a charge on all fixtures on the land the subject of
the lease which by the express or
implied terms of the lease are removable by
the lessee and shall also be a charge on all compensation moneys which by the
express
or implied terms of the lease or by or under the provisions of any Act
are payable to the lessee in respect of any improvements made
on the
land.
Covenants, etc., implied in all mortgages
68. In every
mortgage of land there shall be implied the covenants by the mortgagor and the
powers and conditions set forth in the Schedule,
except in so far as the same
are varied or negatived in the mortgage, and except also that clauses (9), (10)
and (11) of that Schedule
shall be implied only in mortgages subject to a prior
mortgage or mortgages, and that clauses (12), (13) and (14) of that Schedule
shall be implied only in mortgages of a lease.
Transferee of land subject to mortgage personally liable to mortgagee
69. In every
transfer of land subject to a mortgage the transferee shall, unless a contrary
intention appears in such mortgage and irrespective
of whether he has signed the
transfer become personally liable to the mortgagee for the payment of all money
secured by such mortgage
and shall also become personally liable to the
mortgagee for the fulfilment and observance of all covenants, conditions and
other
provisions contained or implied in such mortgage as if he were an original
mortgagor of the land and had covenanted with the mortgagee
for such payment as
aforesaid and for the fulfilment and observance of such covenants, conditions
and other provisions as aforesaid,
and the mortgagee shall have remedy directly
against the transferee accordingly, but nothing herein shall extinguish the
liability
of any original mortgagor under the mortgage or the liability of any
intermediate transferee of the land subject to the mortgage:
Provided
that nothing in this section shall render an executor or administrator or
trustee personally liable in respect of the estate
of a deceased person or in
respect of any land subject to a trust, as the case may be, except to the extent
of the property under
his control as such executor or administrator or
trustee.
Effect of advance on joint account, etc.
70. -(1) Where,
in a mortgage, or an obligation for payment of money, or a transfer of a
mortgage or of such an obligation, the sum,
or any part of the sum, advanced or
owing is expressed to be advanced by or owing to more persons than one, out of
money or as money
belonging to them on a joint account, or where a mortgage, or
such an obligation, or such a transfer, is made to more persons than
one jointly
and not in shares, the mortgage money or other money or money's worth for the
time being due to those persons on the
mortgage or obligation shall, as between
them and the mortgagor or obligor, be deemed to be and remain money or money's
worth belonging
to them on a joint account; and the receipt in writing of the
survivors or last survivor of them, or of the personal representatives
of the
last survivor, or their or his assigns, shall be a complete discharge for all
money or money's worth for the time being due,
notwithstanding any notice to the
payer of a severance of the joint account.
(2) This section applies only
in so far as a contrary intention is not expressed in the mortgage, obligation
or transfer, and shall
have effect subject to the terms and provisions
thereof.
Security for further advances
71. Where a
mortgage purports to secure a principal sum the amount of which is specified
therein (whether or not the mortgage also purports
to secure further advances),
the mortgagee shall have the right to advance from time to time to the mortgagor
the whole or any part
of the principal sum the amount of which is so specified
so as to rank in priority to any subsequent mortgage, notwithstanding that
the
advance is made after the execution or registration of the subsequent mortgage,
and whether or not the mortgagee has actual or
constructive notice of the
subsequent mortgage at the time of making the advance:
Provided that,
except in the case of a mortgage securing advances on current account, any part
of the principal sum which has been
repaid to the mortgagee and readvanced to
the mortgagor shall be deemed for the purposes of this section not to form part
of the
principal sum specified in the mortgage.
Repayment of mortgages
72.-(1) A
mortgagor is entitled to redeem the mortgaged property at any time before the
same has been actually sold by the mortgagee
under his power of sale, on payment
of all moneys due and owing under the mortgage at the time of
payment.
(2) A mortgagor is entitled to redeem the mortgaged property
although the time for redemption appointed in the mortgage has not arrived;
but
in that case he shall pay to the mortgagee, in addition to any other moneys then
due and owing under the mortgage, interest on
the principal sum secured thereby
for the unexpired portion of the term of the mortgage.
(3) A mortgagor
seeking to redeem after the expiry of the term of the mortgage, or of any
further term for which it has been renewed
or extended, shall give to the
mortgagee three clear months' notice in writing of his intention to redeem, or
shall pay to the mortgagee
three months interest in lieu
thereof:
Provided that this subsection shall not apply in any case where
the mortgagee has entered into possession of the mortgaged property
or any part
thereof, or has taken any steps to realize his security.
(4) For the
purposes of this section, the expression "moneys due and owing under a mortgage"
includes all expenses reasonably incurred
by the mortgagee-
(a) for the protection and preservation of the mortgaged property or otherwise in accordance with the provisions of the mortgage; and
(b) with a view to the realization of his security,
and in either case includes
interest on the sums so expended at the rate expressed in the mortgage.
Mortgagor may require mortgagee to transfer instead of discharging
73.-(1) Where a
mortgagor is entitled to redeem he shall by virtue of this Act have power to
require the mortgagee, instead of discharging,
and on the terms on which he
would be bound to discharge, to transfer the mortgage to any third person as the
mortgagor directs;
and the mortgagee shall by virtue of this Act be bound to
transfer accordingly.
(2) This section applies to mortgages made either
before or after the commencement of this Act, and shall have effect
notwithstanding
any stipulation to the contrary; but does not apply where the
mortgagee is or has been in possession.
Encumbrancee to have the like right
74. The like
right to require a mortgagee to transfer the mortgage to a third person shall
belong to and may be enforced by each encumbrancee
or by the mortgagor,
notwithstanding any intermediate encumbrance; but a requisition of an
encumbrancee shall prevail over a requisition
of the mortgagor, and, as between
encumbrancees, a requisition of a prior encumbrancee shall prevail over a
requisition of a subsequent
encumbrancee.
Mortgagee may, after default, enter into possession
75. A mortgagee,
upon default in payment of the mortgage money or any part thereof, may enter
into possession of the mortgaged land
by receiving the rents and profits thereof
or may distrain upon the occupier or tenant of the said land for the rent then
due.
Further powers of mortgagee as to receipt of rent, etc.
76. Whenever a
mortgagee gives notice of his demand to receive the rents and profits of the
mortgaged land to the tenant or occupier
or other person liable to pay on
account of the rents and profits thereof, all the powers and remedies of the
mortgagor in regard
to receipt and recovery of and giving discharges for such
rents and profits shall be suspended and transferred to such mortgagee
until
such notice be withdrawn or the mortgage is satisfied and a discharge thereof
duly registered, and in every such case the receipt
in writing of the mortgagee
shall be sufficient discharge for any rents and profits therein expressed to be
received, and no person
paying the same shall be bound to inquire concerning any
default or other circumstance affecting the right of the person giving such
notice beyond the fact of his being duly registered as mortgagee of the
land:
Provided that nothing herein contained shall interfere with the
effect of any rule, order or judgment of the court in regard to the
payment of
rent under the special circumstances of any case, nor shall prejudice any remedy
of the mortgagor against the mortgagee
for wrongful entry or for an
account.
Mortgagor in default
77. If default is
made in payment of the mortgage money or any part thereof, or in the performance
or observance of any covenant expressed
in any mortgage or in this Act declared
to be implied in any mortgage, and such default is continued for one month or
for such other
period of time as is in such mortgage for that purpose expressly
fixed, the mortgagee may serve on the mortgagor notice in writing
to pay the
mortgage money or to perform and observe the covenants therein expressed or
implied, as the case may be.
Notice not required when money payable on demand
78. Where money
secured by a mortgage is made payable on demand, a demand in writing pursuant to
the provisions of the mortgage shall
be deemed to be the notice in writing to
pay the money owing provided for by section
77, and no other notice shall be
required to create the default in payment mentioned in section
79.
Mortgagee may sell
79. -(1) If
default in payment of the mortgage money or in the performance or observance of
any covenant continues for one month after
the service of the notice referred to
in section 77, the mortgagee may sell
or concur with any other person in selling the mortgaged property, or any part
thereof, either subject to
prior leases, mortgages and encumbrances or
otherwise, and either together or in lots, by public auction or by private
contract,
or partly by the one and partly by the other of those methods of sale,
and subject to such condition as to title or evidence of title,
time or method
of payment of the purchase money or otherwise as the mortgagee thinks fit, with
power to vary any contract for sale
and to buy in at any auction or to vary or
rescind any contract for sale and to resell without being answerable for any
loss occasioned
thereby, with power to make such roads, streets and passages and
grant such easements of right of way or drainage over the same as
the
circumstances of the case require and the mortgagee thinks fit, and may make and
sign such transfers and do such acts and things
as are necessary for
effectuating any such sale.
(2) No purchaser shall be bound to see or
inquire whether default has been made or has happened, or has continued, or
whether notice
has been served, or otherwise into the propriety or regularity of
any such sale.
(3) Where a transfer is made in purported exercise of the
power of sale conferred by this Act, the title of the transferee shall not
be
impeachable on the ground that no cause had arisen to authorize the sale or that
due notice was not given or that the power was
otherwise improperly or
irregularly exercised, but any person damnified by any unauthorized or improper
or irregular exercise of
the power shall have his remedy in damages against the
person exercising the power.
Restriction on power of variation in case of land
80. Except as
therein provided the provisions of sections
77,
78 and
79 may not be negatived or varied in
the case of a mortgage of land.
Application of purchase money
81. The purchase
money arising from the sale by the mortgagee of any mortgaged property shall be
applied as follows:-
(a) first, in payment of the expenses of and incidental to the sale and consequent on the default;
(b) Secondly, in payment of the moneys which are due or owing under the mortgage;
(c) thirdly, in payment of subsequent mortgages or encumbrances, if any, in the order of their respective priorities; and
(d) fourthly, the surplus, if any, shall be paid to the mortgagor.
Mortgagee may appoint receiver
82.-(1) When a
mortgagee has become entitled to exercise the power of sale conferred by the
provisions of this Act, he may by writing
under his hand appoint such person as
he thinks fit to be receiver, and the person so appointed shall be entitled to
exercise the
powers by this Act conferred on a receiver.
(2) The receiver
shall be deemed to be the agent of the mortgagor and the mortgagor shall be
solely responsible for the receiver's
acts or defaults unless the mortgage
otherwise provides.
(3) The receiver shall have power to demand and
recover all the income of the property of which he is appointed receiver by
action,
distress or otherwise in the name either of the mortgagor or of the
mortgagee to the full extent of the estate or interest which
the mortgagor could
dispose of and to give effectual receipts accordingly for the same.
(4) A
person paying money to the receiver shall not be concerned to inquire whether
any case has happened to authorize the receiver
to act.
(5) The receiver
may be removed and a new receiver may be appointed from time to time by the
mortgagee by writing under his hand.
(6) The receiver shall be entitled
to retain out of any moneys received by him for his remuneration and in
satisfaction of all costs,
charges and expenses incurred by him as receiver a
commission at such rate not exceeding five per cent on the gross amount of all
moneys received as is specified in his appointment, and, if no rate is so
specified, then at the rate of five per cent or at such
higher rate as the court
thinks fit to allow on application made by him for the purpose.
(7) The
receiver shall, if so directed in writing by the mortgagee, insure and keep
insured against loss or damage by fire out of
the moneys received by him any
building, effects or property comprised in the mortgage, whether affixed to the
land or not, being
of an insurable nature.
(8) The receiver shall apply
all moneys received by him as follows:-
(a) in discharge of all rents, taxes, rates and outgoings whatsoever affecting the mortgaged property; and
(b) in keeping down all annual sums or other payments and the interest on all principal sums having priority to the mortgage in right whereof he is the receiver; and
(c) in payment of his commission and of the premiums on fire, life or other insurance, if any, payable under the provisions of the mortgage or of this Act and the costs of executing necessary or proper repairs directed in writing by the mortgagee; and
(d) in payment of the interest due and unpaid and accruing due in respect of any money due under the mortgage; and
(e) in or towards discharge of the principal money, annuity, rent-charge or periodical payment due under the mortgage, if so directed in writing by the mortgagee, and shall pay the residue, if any, of the moneys received by him to the person who, but for the possession of the receiver, would have been entitled to receive the income of the mortgaged property or who is otherwise entitled to that property.
Mortgagee of leasehold liable for rent after entry
83. Every
mortgagee of an estate in leasehold in land or any person claiming such an
estate in the land as a purchaser or otherwise
from or under any such mortgagee,
after entering into possession of the land or the rents and profits thereof,
shall, during that
possession and to the extent of any rents and profits which
may be received by him, become and be subject and liable to the lessor
of the
land, or the person for the time being entitled to the lessor's estate or
interest in the land, to the same extent as the
lessor was subject to and liable
for prior to that mortgagee, or other person, entering into possession of the
land or the rents
and profits thereof.
Mortgagee's receipts, discharges, etc.
84.-(1) The
receipt in writing or a mortgagee shall be a sufficient discharge for any money
arising under the power of sale conferred
by this Act, or for any money or
securities comprised in his mortgage or arising thereunder, and a person paying
or transferring
the same to the mortgagee shall not be concerned to inquire
whether any money remains due under the mortgage or to see to the application
of
the money or securities so paid or transferred.
(2) Money received by a
mortgagee under his mortgage, or from the proceeds of securities comprised in
his mortgage, shall be applied
in like manner as in this Act directed respecting
money received by him arising from a sale under the power of sale conferred by
this Act, but with this variation: that the costs, charges and expenses payable
shall include the costs, charges and expenses properly
incurred of recovering
and receiving the money or securities, and of conversion of securities into
money instead of those incident
to sale.
Sections 68 to 83 to apply only in case of mortgage by deed
85. The
provisions of sections 68 to
83 inclusive shall only apply in cases
where the mortgage is made by deed or under the provisions of this or any other
Act is deemed
to be so made or to have the effect of a deed.
Equitable mortgages and charges
86.-(1) A person
having an equitable mortgage or charge on land created by writing or by deposit
of an instrument of title registered
under the provisions of the Land Transfer
Act, for securing the payment of money and who has obtained a judgment of the
court for the sum due may apply for and obtain an order
for sale of the property
subject to such terms and conditions as the court may
direct.
(Cap. 131.)
(2) A
person who has, under the provisions of section
32 of the Supreme Court Act, obtained
an order imposing a charge on any land for securing the payment of any moneys
due or to become due under any judgment or
order of the court may, subject to
the provisions of any law for the time being in force requiring the registration
of such charge,
on default being made by the debtor in payment of any such
money, apply to the court for and obtain an order for the sale of such
land,
subject to such terms and conditions as the court may
direct.
(Cap. 13.)
(3) Where
an order for sale is made by the court under the provisions of this section, the
court may in favour of the purchaser make
a vesting order transferring the
property or may appoint a person to transfer the same.
Restriction on consolidation
87. A mortgagor
seeking to redeem any one mortgage shall, by virtue of this Act, be entitled to
do so without paying any money due under
any separate mortgage made by him or by
any person through whom he claims, on property other than that comprised in the
mortgage
that he seeks to redeem.
Retrospective operation of Part VIII
88. The
provisions of this Part, with the exception of section
68, apply to all mortgages of land
whether executed before or after the commencement of this Act.
PART IX-LEASES AND TENANCIES
Termination of tenancies
89.-(1) No
tenancy from year to year is implied by payment of rent.
(2) In the
absence of express agreement between the parties, a tenancy of no fixed duration
in respect of which the rent is payable
weekly, monthly, yearly or for any other
recurring period may be terminated by either party giving to the other written
notice as
follows:-
(a) where the rent is payable yearly or for any recurring period exceeding one year, at least six months' notice expiring at the end of any year of the tenancy; or
(b) where the rent is payable for any recurring period of less than one year, notice for at least a period equal to one rent period under the tenancy and expiring at any time, whether at the end of a rent period or not.
Covenants implied in leases
90.
In every lease of land there shall be implied the following covenants by the
lessee, for himself, his personal representative, transferees
and assigns with
the lessor and his personal representatives and transferees: -
(a) that he or they will pay the rent thereby reserved at the time therein mentioned:
Provided that in case the demised premises or any part thereof shall at any time during the continuance of the lease, without neglect or default of the lessee, be destroyed or damaged by fire, flood, lightning, storm, tempest or earthquake so as to render the same unfit for the occupation and use of the lessee, then and so often as the same shall happen, the rent thereby reserved, or a proportionate part thereof, according to the nature and extent of the damage, shall abate, and all or any remedies for the recovery of the rent or the proportionate part thereof shall be suspended until the demised premises shall have been rebuilt or made fit for the occupation and use of the lessee, and in case of any dispute arising under this proviso the same shall be referred to arbitration under the provisions of the Arbitration Act;
(b) that he or they will, at all times during the continuance of the said lease, keep, and at the termination thereof yield up, the demised premises in good and tenantable repair, having regard to their condition at the commencement of the said lease, accidents and damage from fire, flood, lightning, storm, tempest, earthquake and fair wear and tear (all without neglect or default of the lessee) excepted.
Powers in lessor
91. In every
lease of land there shall be implied the following powers in the lessor, his
personal representatives and transferees:
(a) that he or they may, by himself or themselves, or his or their agents, at all reasonable times, enter upon the demised premises and view the state of repair thereof, and may serve upon the lessee, his personal representatives, transferees or assigns, a notice in writing of any defect requiring him or them, within a reasonable time, to be therein prescribed, to repair the same in accordance with the covenant in that behalf contained or implied in the lease;
(b) that whenever the rent reserved is in arrear he or they may levy the same by distress;
(c) that whenever the rent or any part thereof, whether legally demanded or not, is in arrear for the space of one month, or whenever the lessee has failed to perform or observe any of the covenants, conditions or stipulations contained or implied in the lease, and on the part of the lessee to be performed, or observed, he or they may re-enter upon the demised premises (or any part thereof in the name of the whole) and thereby determine the estate of the lessee, his personal representatives, transferees or assigns, therein, but without releasing him or them from liability in respect of the breach or non-observance of any such covenant, condition or stipulation.
Implied covenant in a sublease
92. There shall
be implied in every sublease a covenant by the sublessor, his personal
representatives and transferees with the sublessee,
his personal
representatives, transferees and permitted assigns that the sublessor shall pay
the rent and perform and observe all
the covenants and conditions in. the
headlease contained or implied and by him to be performed or observed.
Effect of licence to assign
93. A condition
or covenant not to assign or underlet or to do any other act without licence
shall not be released or determined by any
such licence.
No fine for licence to assign
94. In all leases
containing a covenant, condition or agreement that the lessee shall not, without
the licence or consent of the lessor,
assign, underlet, part with the possession
or dispose of the demised premises or any part thereof, that covenant, condition
or agreement
shall, unless the lease contains an express provision to the
contrary, be deemed to be subject to a proviso to the effect that no
fine or sum
of money in the nature of a fine shall be payable for or in respect of any such
licence or consent; but this proviso
shall not preclude the right to require the
payment of a reasonable sum in respect of any legal or other expenses incurred
in relation
to the licence or consent.
Assignment by trustee or liquidator etc.
95. Neither the
assignment or underletting of any leasehold by a trustee in bankruptcy, or by
the liquidator of a company, or by the
Sheriff under an execution, nor the
bequest of a leasehold, shall be deemed to be a breach of any covenant,
condition or agreement
referred to in section
94 unless the contrary is expressly
declared in the lease.
Merger of reversion not to affect remedies
96. Where the
reversion of land subject to a lease is merged in any remainder or other
reversion or future estate, the person entitled
to the estate into which the
reversion has merged, and his personal representative, shall have the same
remedy for non-performance
or non-observance of the conditions or covenants
expressed or implied in the lease as the person who would for the time being
have
been entitled to the mesne reversion so merged would have had.
Rent and benefit of lessee's covenants to run with reversion
97. -(1) Rent
reserved by a lease and the benefit of every covenant or provision therein
having reference to the subject-matter thereof,
and on the lessee's part to be
observed or performed, and every condition of re-entry and other condition
therein, shall be annexed
and incident to and shall go with the reversionary
estate in the land or in any part thereof immediately expectant on the term
granted
by the lease, notwithstanding severance of that reversionary estate, and
may be recovered, received, enforced and taken advantage
of by the person from
time to time entitled, subject to the term, to the income of the whole or any
part, as the case may require,
of the land leased. This subsection shall extend
to a covenant to do any act relating to the land, notwithstanding that the
subject-matter
may not be in existence when the covenant is made.
(2) The
benefit of every condition of re-entry or forfeiture for a breach of any
covenant or condition contained in a lease shall
be capable of being enforced
and taken advantage of by the person from time to time entitled, subject to the
term, to the income
of the whole or any part, as the case may require, of the
land leased, although that person became, by transfer or otherwise, so
entitled
after the condition of re-entry or forfeiture had become enforceable.
(3)
This section shall not render enforceable any condition of re-entry or other
condition waived or released before that person became
entitled as
aforesaid.
(4) This section shall apply to leases whether made before or
after the commencement of this Act, but with respect only to rent accruing
due
after the commencement of this Act, and to the benefit of a condition of
re-entry or forfeiture for a breach committed after
the commencement of this Act
of any covenant, condition or provisions contained in the lease.
(5) In
the case of leases registered under the provisions of the Land (Transfer and
Registration) Ordinance before the commencement
of this Act, with respect to
rent accrued due before the commencement of this Act, and to the benefit of a
condition of re-entry
or forfeiture for a breach committed before the
commencement of this Act of any covenant, condition or provision contained in
the
lease, the provisions of section 50 of the Land (Transfer and Registration)
Ordinance shall continue to apply notwithstanding the
repeal of that Ordinance
by the Land Transfer Act.
(Cap. 136, 1955
Edition) (Cap. 131.)
Obligation of lessor's covenants to run with reversion
98.- (1) The
obligation under a condition or of a covenant entered into by a lessor with
reference to the subject-matter of the lease shall,
if and as far as the lessor
has power to bind the reversionary estate immediately expectant on the term
granted by the lease, be
annexed and incident to and shall go with that
reversionary estate, or the several parts thereof, notwithstanding severance of
that
reversionary estate, and may be taken advantage of and enforced by the
person in whom the term is from time to time vested by conveyance,
devolution in
law, or otherwise; and if and as far as the lessor has power to bind the person
from time to time entitled to that
reversionary estate, that obligation may be
taken advantage of and enforced against any person so entitled.
(2) This
section applies to leases made before or after the commencement of this Act but
not to any severance of the reversionary
estate which was effected before such
commencement.
(3) This section takes effect without prejudice to any
liability affecting a covenantor or his estate.
Apportionment of conditions on severance, etc.
99.
Notwithstanding the severance by transfer, surrender or otherwise of the
reversionary estate in any land comprised in a lease, and
notwithstanding the
avoidance or cesser in any other manner of the term granted by a lease as to
part only of the land comprised
therein, every condition or right of re-entry,
and every other condition in the lease, shall be apportioned and shall remain
annexed
to the several parts of the reversionary estate so severed, and shall be
in force with respect to the term whereon each severed part
is reversionary or
the term in any land that has not been surrendered, or as to which the term has
not been avoided or has not otherwise
ceased, in like manner as if the land
comprised in each severed part, or the land as to which the term remains
subsisting, as the
case may be, had been the only land comprised in the
lease.
Restriction on effect of waiver
100.-(1) Where
any actual waiver of the benefit of any covenant or condition in any lease on
the part of any lessor or his personal representatives,
or assigns is proved to
have taken place on or after the commencement of this Act, in any one particular
instance, that actual waiver
shall not be deemed to extend to any instance or
any breach of covenant or condition other than that to which the waiver
specially
relates, or to be a general waiver of any such covenant or condition,
unless an intention to that effect appears.
(2) After the giving of a
notice to quit acceptance of rent expressed to be without prejudice to the
notice shall not operate as a
waiver of the right to enforce the notice or
create or revive a tenancy.
Personal representatives not personally liable for covenants
101. Personal
representatives shall not be personally liable on any covenant entered into by a
testator or intestate as a lessee of land,
any rule of law
notwithstanding.
Tenant not prejudiced by assignment before notice
102. A lessee
shall not be prejudiced or damaged by payment of any rent to any grantor,
transferor or assignor of any reversion or by
breach of any condition for
non-payment of rent before notice is given to him by the grantee, transferee or
assignee to whom the
grant, transfer or assignment is made by the grantor,
transferor or assignor.
Abolition of interesse termini, and as to reversionary leases and leases for lives
103.-(1) The
doctrine of interesse
termini is abolished.
(2) As
from the commencement of this Act all terms of years absolute are, whether the
interest is created before or after such commencement,
capable of taking effect
at law or in equity, according to the estate, interest or powers of the grantor,
from the date fixed for
commencement of the term, without actual
entry.
(3) A term, at a rent or granted in consideration of a fine,
limited after the commencement of this Act to take effect more than twenty-one
years from the date of the instrument purporting to create it, is void, and any
contract made after that date to create such a term
is likewise void; but this
subsection does not apply to any term taking effect under a settlement, or
created out of an interest
under a settlement, or under a power for mortgage,
indemnity or other like purposes.
(4) Nothing in subsections (1) and (2)
prejudicially affects the right of any person to recover any rent or to enforce
or take advantage
of any covenants or conditions, or, as respects terms or
interests created before the commencement of this Act, operates to vary
any
statutory or other obligations imposed in respect of those terms or
interests.
(5) Nothing in this Part affects the rule of law that a legal
term, whether or not being a mortgage term, may be created to take effect
in
reversion expectant on a longer term and that rule is hereby confirmed.
Effect of extinguishment of reversion
104.-(1) Where a
reversion expectant on a lease of land is surrendered or merged, the estate or
interest which as against the lessee
for the time being confers the next vested
right to the land, shall be deemed the reversion for the purpose of preserving
the same
incidents and obligations as would have affected the original reversion
had there been no surrender or merger thereof.
(2) This section shall
apply to surrenders or mergers effected after the commencement of this
Act.
Restrictions on and relief against forfeiture of leases
105. -(1) A right
of re-entry or forfeiture under any proviso or stipulation in a lease for a
breach of any covenant or condition, express
or implied, in the lease shall not
be enforceable, by action or otherwise, unless and until the lessor serves on
the lessee a notice
-
(a) specifying the particular breach complained of; and
(b) if the breach is capable of remedy, requiring the lessee to remedy the breach; and
(c) in any case, requiring the lessee to make compensation in money for the breach, and the lessee fails, within a reasonable time thereafter, to remedy the breach, if it is capable of remedy, and to make reasonable compensation in money, to the satisfaction of the lessor, for the breach.
(2) Where a lessor is
proceeding, by action or otherwise, to enforce a right of re-entry or
forfeiture, the lessee may, in the lessor's
action, if any, or in any action
brought by himself, apply to the court for relief; and the court may grant or
refuse relief, as
the court, having regard to the proceedings and conduct of the
parties under the foregoing provisions of this section, and to all
the other
circumstances, thinks fit; and in case of relief may grant it on such terms, if
any, as to costs, expenses, damages, compensation,
penalty or otherwise,
including the granting of an injunction to restrain any like breach in the
future, as the court, in the circumstances
of each case, thinks fit.
(3)
A lessor shall be entitled to recover as a debt due to him from a lessee, and in
addition to damages, if any, all reasonable costs
and expenses properly incurred
by the lessor in the employment of a barrister and solicitor or a surveyor or
valuer, or otherwise,
in reference to any breach giving rise to a right of
re-entry or forfeiture which, at the request of the lessee, is waived by the
lessor, or from which the lessee is relieved, under the provisions of this
section.
(4) Where a lessor is proceeding by action or otherwise to
enforce a right of re-entry or forfeiture under any covenant, proviso or
stipulation in a lease, or for non-payment of rent, the court may, on
application by any person claiming as sub lessee any estate
or interest in the
property comprised in the lease or any part thereof, either in the lessor's
action, if any, or in any action brought
by such person for that purpose, make
an order vesting, for the whole term of the lease or any less term, the property
comprised
in the lease or any part thereof in any person entitled as sublessee
to any estate or interest in such property upon such conditions
as to execution
of any deed or other document, payment of rent, costs, expenses, damages,
compensation, giving security or otherwise,
as the court in the circumstances of
each case may think fit, but in no case shall any such sublessee be entitled to
require a lease
to be granted to him for any longer term than he had under his
original sublease.
(5) For the purposes of this section -
(a) "lease" includes an original or derivative sublease; also an agreement for a lease where the lessee has become entitled to have his lease granted;
(b) "lessee" includes an original or derivative sublessee, and the persons deriving title under a lessee; also a grantee under any such grant as aforesaid and the persons deriving title under him;
(c) "lessor" includes an original or derivative sublessor, and the persons deriving title under a lessor; also a person making such grant as aforesaid and the persons deriving title under him;
(d) "sublease" includes an agreement for a sublease where the sublessee has become entitled to have his sublease granted;
(e) "sublessee" includes any person deriving title under a sublessee.
(6) This
section shall apply although the proviso or stipulation under which the right of
re-entry or forfeiture accrues is inserted
in the lease in pursuance of the
directions of any Act.
(7) For the purposes of this section, a lease
limited to continue as long only as the lessee abstains from committing a breach
of
covenant shall be and take effect as a lease to continue for any longer term
for which it could subsist, but determinable by a proviso
for re-entry on such a
breach.
(8) The provisions of this section shall not extend -
(a) to a covenant or condition against assigning, subletting, parting with the possession or disposing of the land leased; or
(b) in the case of a mining lease, to a covenant or condition for allowing the lessor to have access to or inspect books, accounts, records, weighing machines or other things, or to enter or inspect the mine or the workings thereof; or
(c) to a condition for forfeiture on the bankruptcy of the lessee or on taking in execution of the lessee's interest; or
(d) to a condition for forfeiture for breach of any liquor or distillation laws; or
(e) to any contract of tenancy of agricultural land which is subject to the provisions of the Agricultural Landlord and Tenant Act. (Cap 270)
(9) This section shall not, save
as otherwise mentioned, affect the law relating to re-entry or forfeiture or
relief in case of non-payment
of rent.
(10) This section shall have
effect notwithstanding any stipulation to the contrary.
PART X-EASEMENTS, ENCROACHMENTS AND MISTAKE
Easement in gross permitted
106. An easement
over land may be created without being attached or made appurtenant to other
land, and such an easement shall run with
and bind the land over which it is
created, and all persons claiming title to that land by, through or under the
person creating
the easement; and the easement so created shall be to all
intents and purposes an incorporeal hereditament, and shall be assignable
accordingly.
Access or use of light or air
107.-(1) Subject
to the provisions of subsection (2) no tenement shall be servient to any other
in respect of the access of either light
or air, and no person shall have or
acquire by prescription, grant or otherwise any claim or right to the access of
light or air
to any land or building from or over the land of any other
person.
(2) A grant of the right of access of light or air made at any
time after the commencement of this Act may be enforced if the grant
-
(a) is made by an instrument in an appropriate form provided by the Land Transfer Act;
(Cap. 131.)
(b) is duly registered under the provisions of that Act; and
(c) limits and defines the area or parcel of land on, to or over which the uninterrupted access of light or air, or light and air, is intended to be provided for.
(3) Every such grant shall, if duly
registered as required by subsection (2), confer upon the owner for the time
being of the dominant
tenement such rights as may be therein defined in respect
of the access of light or air, or light and air; and those rights shall
ensure,
unless otherwise provided, notwithstanding that any buildings erected upon the
dominant tenement may be altered or destroyed
and replaced by other
buildings.
(4) The erection of buildings of any height not encroaching
upon the area limited and defined as aforesaid shall not be deemed to
be an
infringement of the right or a derogation from the grant.
Court may authorize entry for erecting or repairing buildings, etc.
108. -(1) The
owner of any land may at any time apply to the court by originating summons for
an order authorizing him, or any person
authorized by him in writing in that
behalf, to enter upon any adjoining land for the purpose of erecting, repairing,
adding to or
painting the whole or any part of any building, wall, fence or
other structure on the applicant's land, and to do on the land so
entered upon
such things as may reasonably be considered necessary for any such purpose as
aforesaid.
(2) On any such application the court may make such order as
it thinks fit, and any such order, or any provision thereof, may be made
upon
and subject to such terms and conditions as the court thinks fit.
Power of court to grant special relief in cases of encroachment
109. -(1) Where
any building on any land, whether erected before or after the commencement of
this Act, encroaches on any part of any
adjoining land (that part being referred
to in this section as the piece of land encroached upon), whether the building
was erected
by the owner of the first-mentioned land (in this section referred
to as the encroaching owner) or by any of his predecessors in
title, either the
encroaching owner or the owner of the piece of land encroached upon may apply to
the court, whether in any action
or proceeding then pending or in progress and
relating to the piece of land encroached upon or by an originating summons, to
make
an order in accordance with the provisions of this section in respect of
that piece of land.
(2) If it is proved to the satisfaction of the court
that the encroachment was not intentional and did not arise from gross
negligence,
or, where the building was not erected by the encroaching owner, if
in the opinion of the court it is just and equitable in the circumstances
that
relief should be granted to the encroaching owner or any other person, the
court, without ordering the encroaching owner or
any other person to give up
possession of the piece of land encroached upon or to pay damages, and without
granting an injunction,
may in its discretion make an order -
(a) vesting in the encroaching owner or any other person any estate or interest in the piece of land encroached upon; or
(b) creating in favour of the encroaching owner or any other person any easement over the piece of land encroached upon; or
(c) giving the encroaching owner or any other person the right to retain possession of the piece of land encroached upon.
(3) Where the court makes any order
under the provisions of this section, the court may, in the order, declare any
estate or interest
so vested to be free from any mortgage or other encumbrance
affecting the piece of land encroached upon, or vary, to such extent
as it
considers necessary in the circumstances, any mortgage, lease or contract
affecting or relating to that piece of land.
(4) Any order under the
provisions of this section, may be made upon and subject to such terms and
conditions as the court thinks
fit, whether as to the payment by the encroaching
owner or any other person of any sum or sums of money, or the execution by the
encroaching owner or any other person of any mortgage, lease, easement, contract
or other instrument, or otherwise.
(5) Every person having any estate or
interest in the piece of land encroached upon or in the adjoining land of the
encroaching owner,
or claiming to be a party to or to be entitled to any benefit
under any mortgage, lease, contract or easement affecting or relating
to any
such land, shall be entitled to apply for an order under the provisions of this
section, or to be heard in relation to any
application for or proposal to make
any such order. For the purposes of this subsection the court may, if in its
opinion notice of
the application or proposal should be given to any such
person, direct that such notice as it thinks fit shall be given to that person
by the encroaching owner or any other person.
(6) Every order vesting any
estate or interest in any person under the provisions of this section shall for
the purposes of the Stamp Duties Act be deemed to be a transfer on sale and
shall be liable to stamp duty
accordingly.
(Cap 205)
Relief in cases of mistake as to boundaries or identity of land
110.-(1) Where,
before or after the commencement of this Act, any person who has or had an
estate or interest in any piece of land (in
this section referred to as the
original piece of land) has, while he had that estate or interest, erected a
building on any other
piece of land (that other piece together with any land
reasonably required as curtilage and for access to the building being in this
section referred to as the piece of land wrongly built upon), if the building
has been so erected because of a mistake as to any
boundary or as to the
identity of the original piece of land, that person, or any other person for the
time being in possession of
the building or having an estate or interest in
either the original piece of land or the piece of land wrongly built upon, or
any
other person mentioned in subsection (6), may apply to the court, whether in
any action or proceeding then pending or in progress
and relating to the piece
of land wrongly built upon, or by an originating summons, to make an order in
accordance with this section.
(2) If in the opinion of the court it is
just and equitable in the circumstances that relief should be granted to the
applicant or
any other person, the court may in its discretion make an order
-
(a) vesting the piece of land wrongly built upon in the person or persons specified in the order;
(b) allowing any person or persons specified in the order to remove the building and any chattels and fixtures or any of them from the piece of land wrongly built upon;
(c) where it allows possession of the building to any person or persons having an estate or interest in the piece of land wrongly built upon, requiring all or any of the persons having an estate or interest in that piece of land to pay compensation in respect of the building and other improvements to the piece of land wrongly built upon to such person or persons as the court may specify;
(d) giving the person who erected the building or any person or persons claiming through him the right to possession of the piece of land wrongly built upon for such period and on such terms and conditions as the court may specify.
(3) Where
appropriate, the court may make any such order without ordering the applicant or
any other person to give up possession
of the piece of land wrongly built upon,
or to pay damages, and without granting an injunction.
(4) Where the
court makes any order under the provisions of this section, the court may, in
the order, declare any estate or interest
in the piece of land wrongly built
upon to be free from any mortgage, lease, easement, or other encumbrance
affecting that piece
of land, or vary, to such extent as it considers necessary
in the circumstances, any mortgage, lease, easement, contract or other
instrument affecting or relating to that piece of land.
(5) Any order
under the provisions of this section, may be made upon and subject to such terms
and conditions as the court thinks
fit, whether as to the payment by any person
of any sum or sums of money, or the execution by any person of any mortgage,
lease,
easement, contract or other instrument, or otherwise.
(6) Every
person for the time being in possession of the building or having any estate or
interest in the piece of land wrongly built
upon or in the original piece of
land, or claiming to be a party to or to be entitled to any benefit under any
mortgage, lease, easement,
contract or other instrument affecting or relating to
any such land, and any local or public authority concerned, shall be entitled
to
apply for an order under the provisions of this section, or to be heard in
relation to any application for or proposal to make
any such order. For the
purposes of this subsection the court may, if in its opinion notice of the
application or proposal should
be given to any such person or authority as
aforesaid, direct that such notice as it thinks fit shall be given to that
person by
the applicant or any other person.
(7) Every order vesting any
estate or interest in any person under the provisions of this section shall for
the purposes of the Stamp Duties Act be deemed to be a transfer on sale and
shall be liable to stamp duty accordingly.
(Cap 205)
(8) Nothing in
this section contained shall restrict the operation of section
109.
Recovery of payments made under mistake of law
111.-(1) Subject
to the provisions of this section, where relief in respect of any payment that
has been made under mistake is sought
in any court, whether in an action or
other proceeding or by way of defence, set off, counterclaim or otherwise, and
that relief
could be granted if the mistake were wholly one of fact, that relief
shall not be denied by reason only that the mistake is one of
law whether or not
it is, in any degree also one of fact.
(2) Nothing in this section
enables relief to be given in respect of any payment made at a time when the law
requires or allows, or
is commonly understood to require or allow, the payment
to be made or enforced, by reason only that the law is subsequently changed
or
shown not to have been as it was commonly understood to be at the time of
payment.
Payments made under mistake of law or fact not always recoverable
112.-(1) Relief,
whether under section 111 or in equity
or otherwise, in respect of any payment made under mistake, whether of law or
fact, shall be denied wholly or in part
if the person from whom relief is sought
received the payment in good faith and has so altered his position in reliance
on the validity
of the payment that in the opinion of the court, having regard
to all possible implications in respect of the parties (other than
the plaintiff
or claimant) to the payment and of other persons acquiring rights or interests
through them, it is inequitable to grant
relief, or to grant relief in
full.
(2) Where the court makes an order for the repayment of any money
paid under a mistake, the court may in that order direct that the
repayment
shall be by periodic payments or by instalments, and may fix the amount or rate
thereof, and may from time to time vary,
suspend or discharge the order for
cause shown, as the court thinks fit.
PART XI - ASSIGNMENTS OF THINGS IN ACTION
Assignment of debts and choses in action
113.-(1) Any
absolute assignment by writing under the hand of the assignor (not purporting to
be by way of charge only) of any debt or
other legal chose in action, of which
express notice in writing has been given to the debtor, trustee, or other person
from whom
the assignor would have been entitled to receive or claim that debt or
chose in action, is effectual in law (subject to equities
having priority over
the right of the assignee), to pass and transfer from the date of the notice
-
(a) the legal right to that debt or chose in action;
(b) all legal and other remedies for the debt or chose in action; and
(c) the power to give a good discharge for the debt or chose in action, without the concurrence of the assignor.
(2) Where the debtor, trustee, or
other person liable in respect of the debt or chose in action referred to in
subsection (1) has
notice -
(a) that the assignment so referred to is disputed by the assignor, or any person claiming under him; or
(b) of any other opposing or conflicting claims, to the debt or chose in action, he may, if he thinks fit, either call upon the persons making claim thereto to interplead concerning the debt or chose in action, or pay the debt or other chose in action into court, under the provisions of the Trustee Act.
(Cap. 65.)
PART XII - POWERS OF ATTORNEY
Execution by attorney in his own name
114. -(1) The
donee of a power of attorney may execute or do any assurance, instrument or
thing in and with his own name and signature
and his own seal (where sealing is
required) by the authority of the donor of the power; and every assurance,
instrument and thing
so executed and done shall be as effectual in law to all
intents as if it had been executed or done by the donee of the power in
the name
and with the signature and seal of the donor thereof.
(2) This section
shall apply to powers of attorney created by instruments executed either before
or after the commencement of this
Act.
Continuance until notice of death or revocation received
115.-(1) Subject
to any stipulation to the contrary contained in the instrument creating a power
of attorney, the power shall, so far
as concerns any act or thing done or
suffered thereunder in good faith, operate and continue in force until notice of
the death of
the donor of the power or until notice of other revocation thereof
has been received by the donee of the power.
(2) Every act or thing
within the scope of the power done or suffered in good faith by the donee of the
power after such death or
other revocation as aforesaid, and before notice
thereof has been received by him, shall be as effectual in all respects as if
that
death or other revocation had not happened or been made.
(3) A
certificate by any such attorney, to the effect that he has not received any
notice or information of the revocation of the
power of attorney shall, if made
immediately before or if made after any such act as aforesaid, be taken to be
conclusive proof of
the non-revocation at the time when the act was done or
suffered in favour of all persons dealing with the donee of the power in
good
faith and for valuable consideration without notice of such
revocation.
(4) Where the donee of the power is a corporation, the
certificate shall be sufficient if made by any director, manager or secretary
of
the corporation or by any officer thereof discharging the functions usually
appertaining to any of those offices or by any officer
of the corporation
appointed for that purpose either generally or in the particular instance by the
board of directors, council or
other governing body by resolution or otherwise,
and if it is to the effect that to the best of the knowledge and belief of the
person
making the same neither the attorney nor any servant or agent of the
attorney has received any such notice or information as is mentioned
in
subsection (3), and where the certificate contains a statement that the person
making the same is a director, manager or secretary
of the corporation or is an
officer of the corporation discharging the functions usually appertaining to any
of those offices or
is an officer of the corporation appointed for the purpose
of making the certificate, that statement shall be conclusive evidence
in favour
of the persons mentioned in that subsection.
(5) Every certificate made
under the provisions of either of subsections (3) or (4) shall be attested by a
qualified witness and shall
have the same force and effect as a statutory
declaration and every person who knowingly and wilfully in any such certificate
makes
a statement false in any material particular shall be guilty of an offence
and liable to imprisonment for a period not exceeding
two years or to a fine not
exceeding two hundred dollars or to both such fine and imprisonment.
(6)
In this section the expression "qualified witness" has the same meaning as in
subsection (1) of section 2 of the Land
Transfer Act.
(Cap.
131.)
(7) This section shall apply to powers of attorney created
by instruments executed in or out of Fiji and whether executed before or
after
the commencement of this Act.
Irrevocable power of attorney for value
116.-(1) Where a
power of attorney given for valuable consideration (whether executed in or out
of Fiji) is in the instrument creating
the power expressed to be irrevocable,
then, in favour of a purchaser -
(a) the power shall not be revoked at any time, either by anything done by the donor of the power without the concurrence of the donee, or by the death, unsoundness of mind or bankruptcy of the donor; and
(b) any act done at any time by the donee of the power in pursuance of the power shall be as valid as if anything done by the donor without the concurrence of the donee, or the death, unsoundness of mind or bankruptcy of the donor, had not been done or had not happened; and
(c) neither the donee of the power nor the purchaser shall at any time be prejudicially affected by notice of anything done by the donor without the concurrence of the donee, or of the death, unsoundness of mind or bankruptcy of the donor.
(2) This section shall apply only to
powers of attorney created by instruments executed either before or after the
commencement of
this Act.
Power of attorney made irrevocable for fixed time
117. -(1) Where a
power of attorney (whether executed in or out of Fiji, and whether given for
valuable consideration or not) is in the
instrument creating the power expressed
to be irrevocable for a fixed time therein specified, not exceeding two years
from the date
of the instrument, then, in favour of a purchaser -
(a) the power shall not be revoked for and during that fixed time, either by anything done by the donor of the power without the concurrence of the donee, or by the death, unsoundness of mind or bankruptcy of the donor; and
(b) any act done within that fixed time by the donee of the power in pursuance of the power shall be as valid as if anything done by the donor without the concurrence of the donee, or the death, unsoundness of mind or bankruptcy of the donor had not been done or had not happened; and
(c) neither the donee of the power nor the purchaser shall at any time be prejudicially affected by notice, either during or after that fixed time, of anything done by the donor during that fixed time without the concurrence of the donee, or of the death, unsoundness of mind or bankruptcy of the donor within that fixed time.
(2) This section shall apply only to
powers of attorney created by instruments executed after the commencement of
this Act.
Application to corporations
118. -(1) The
provisions of this Part shall apply with the necessary modifications with
respect to any power of attorney executed by
any corporation to the same extent
as if the corporation were a person and the dissolution of the corporation
(however occurring)
were the death of a person within the meaning of this
Part.
(2) The provisions of subsection (1) shall not apply to a
corporation which is dissolved before the commencement of this Act, but
shall
apply to powers of attorney created by instruments executed either before or
after its commencement.
PART XIII - PARTITION OF LAND AND DIVISION OF CHATTELS
In action for partition court may direct land to be sold
119.-(1) Where in
an action for partition the party or parties interested, individually or
collectively, to the extent of one moiety
or upwards in the land to which the
action relates requests the court to direct a sale of the land and a
distribution of the proceeds,
instead of a division of the land between or among
the parties interested, the court shall, unless it sees good reason to the
contrary,
direct a sale accordingly.
(2) The court may, if it thinks fit,
on the request of any party interested, and notwithstanding the dissent or
disability of any
other party, direct a sale in any case where it appears to the
court that, by reason of the nature of the land, or of the number
of the parties
interested or presumptively interested therein, or of the absence or disability
of any of those parties, or of any
other circumstance, a sale of the land would
be for the benefit of the parties interested.
(3) The court may also, if
it thinks fit, on the request of any party interested, direct that the land be
sold, unless the other parties
interested, or some of them, undertake to
purchase the share of the party requesting a sale, and, on such an undertaking
being given,
may direct a valuation of the share of the party requesting a
sale.
(4) On directing any such sale or valuation to be made, the court
may give also all necessary or proper consequential directions.
(5) Any
person may maintain such action as aforesaid against any one or more of the
parties interested without serving the other or
others, and it shall not be
competent to any defendant in the action to object for want of parties; and at
the hearing of the cause
the court may direct such inquiries as to the nature of
the land and the persons interested therein, and other matters, as it thinks
necessary or proper, with a view to an order for partition or sale being made on
further considerations:
Provided that all persons who, if this Act had
not been enacted, would have been necessary parties to the action shall be
served with
notice of the decree or order on the hearing, and, after that
notice, shall be bound by the proceedings as if they had originally
been parties
to the action, and shall be deemed parties to the action, and all such persons
may have liberty to attend the proceedings,
and any such person may, within a
time limited by rules of court, apply to the court to add to the decree or
order.
(6) On any sale under the provisions of this section, the court
may allow any of the parties interested in the land to bid at the
sale, on such
terms as the court deems reasonable as to non-payment of deposit, or as to
setting off or accounting for the purchase
money or any part thereof instead of
paying the same, or as to any other matters.
Proceeds of sale, how applied
120. -(1) All
money received under any sale under the provisions of section
119 may, if the court thinks fit, be
paid to trustees appointed by the court, and applied, as the court from time to
time directs -
(a) in the discharge of any encumbrance affecting the land directed to be sold; and, subject thereto,
(b) in the payment of the residue to the parties interested.
(2) Where the court so
directs, the trustees, if any, may in their discretion apply the money in manner
aforesaid; and where no such
direction is given any party interested may apply
to the court for an order that the money be so applied.
(3) Until the
money can be applied as aforesaid it shall be from time to time invested in such
securities as the court may approve,
and the interest and dividends thereof
shall be paid to the parties interested.
Costs in partition suits
121. In an action
for partition, the court may make such order as it thinks just respecting costs
up to the time of the hearing.
Division of chattels
122. Where any
chattels belong to persons jointly or in undivided shares, the persons
interested to the extent of a moiety or upwards
may apply to the court for an
order for division of the chattels or of any of them, according to a valuation
or otherwise, and the
court may make such order and give such consequential
directions as the court thinks fit.
PART XIV - APPORTIONMENT
Interpretation
123. In this
Part, unless the context otherwise requires -
"annuities" includes salaries and pensions;
"dividends" includes (besides dividends strictly so called) all payments made by the name of dividend, bonus or otherwise by a company or corporation divisible between all or any of the members thereof, whether those payments are usually made or declared at any fixed times or otherwise; and all such dividends shall for the purposes of this section be deemed to have accrued by equal daily increment during and within the period for or in respect of which the payment of the same is declared or expressed to be made; but "dividends" does not include payments in the nature of a return or reimbursement of capital;
"rent" includes rents and all periodical payments in lieu of or in the nature of rent.
Income apportionable in respect of time
124. All rents,
annuities, dividends and other periodical payments in the nature of income
(whether reserved or made payable under an
instrument in writing or otherwise)
shall, like interest on money lent, be considered as accruing from day to day,
and shall be apportionable
in respect of time accordingly.
Time when apportioned part payable
125. The
apportioned part of any rent, annuity, dividend or other payment referred to in
section 124 shall be payable or
recoverable in the case of a continuing rent, annuity or other payment as soon
as the entire portion of which
the apportioned part forms part becomes due and
payable, and not before; and where the payment is determined by re-entry, death
or
otherwise, as soon as the next entire portion of the same would have become
payable if the same had not been so determined, and not
before.
Recovery of apportioned parts
126. All persons
and their respective personal representatives and assigns, and also the personal
representatives and assigns respectively
of persons whose interests determined
with their own death, shall have such or the same remedies, legal and equitable,
for recovering
such apportioned parts as aforesaid when payable (allowing for a
proportionate part of all just allowance) as they respectively would
have had
for recovering such entire portions as aforesaid if entitled thereto
respectively:
Provided that where any person is liable to pay rent
reserved out of or charged on land that person and the land shall not be
resorted
to for any such apportioned part forming part of an entire or
continuing rent as aforesaid; but the entire or continuing rent, including
the
apportioned part, shall be recovered and received by the person who, if the rent
had not been apportionable under the provisions
of this Part or otherwise, would
have been entitled to the entire or continuing rent; and the apportioned part
shall be recoverable
from the last mentioned person by the personal
representative, or other parties entitled thereto under the provisions of this
Part.
Exceptions and application
127.-(1) Nothing
in this Part shall render apportionable any annual sums payable under policies
of assurance of any description.
(2) This Part shall not extend to any
case in which it is expressly stipulated that apportionment shall not take
place.
PART XV - SERVICE OF NOTICES
Service of notices in case of registered land
128. Subject to
the provisions of the Land Transfer Act, any notice required or authorised by
the provisions of this Act to be served on the proprietor of any estate or
interest in land
registered under the provisions of that Act may be served on
him -
(Cap. 131.)
(a) by delivering the same to him personally;
(b) by posting the same to him by registered letter addressed to him at his address as appearing in the register in which case such notice shall be deemed to have been served at the time when the registered letter would be delivered in the ordinary course of post; or
(c) in the case of a notice to be served on a lessee or mortgagor if there be no such address by leaving the same on the land the subject of such lease or mortgage.
Service of notices in other cases
129.-(1) In cases
other than those to which the provisions of section
128 applies any notice required or
authorized by this Act to be served on any person may be served on him by
delivering the same to him
personally or by posting it by registered letter
addressed to that person -
(a) in the case of a company incorporated or registered under the provisions of the Companies Act in the manner in which notices are required to be served on companies under the provisions of that Act; or (Cap. 247.)
(b) in any other case at his last known place of abode or business in Fiji, and a notice so posted shall be deemed to have been served at the time when the registered letter would be delivered in the ordinary course of post.
(2) If the person
is absent from Fiji, the notice may be delivered as aforesaid to his agent in
Fiji. If he is deceased, the notice
may be delivered as aforesaid to his
personal representative.
(3) If the person is not known, or is absent
from Fiji and has no known agent in Fiji, or is deceased and has no personal
representative,
the notice shall be delivered in such manner as may be directed
by an order of the court.
(4) Notwithstanding anything in the foregoing
provisions of this section, the court may in any case make an order directing
the manner
in which any notice may be served, or dispensing with the service
thereof.
(5) This section shall apply only if and so far as a contrary
intention is not expressed in any instrument, and shall have effect
subject to
the provisions of any instrument.
SCHEDULE
(Section
68)
COVENANTS,
CONDITIONS AND POWERS IMPLIED
IN
MORTGAGES
(1) That the mortgagor will pay to the mortgagee the
principal, interest and other moneys secured by the mortgage in accordance with
the provisions of the mortgage.
(2) That the mortgagor will forthwith
insure and, so long as any money remains owing on the security, will keep
insured against loss
or damage by fire all buildings and erections for the time
being situate on the land described in the mortgage, the insurance to
be
effected in the name of the mortgagee, and with some insurance office in Fiji to
be approved by the mortgagee, and to be for the
full insurable value of such
buildings and erections; and will deliver the policy or policies of insurance,
or cause the same to
be delivered, to the mortgagee, who shall be entitled to
the exclusive custody thereof; and will duly and punctually pay all premiums
and
sums of money necessary for the purpose of keeping every such insurance in
force; and will, not later than the forenoon of the
day on which any premium
falls due, deliver or cause to be delivered the receipt therefore to the
mortgagee.
(3) That the mortgagor will during the continuance of the
mortgage punctually pay all rates, taxes and charges as and when the same
become
due in respect of the said land.
(4) That the mortgagor will from time to
time, so long as any money remains owing on the security, well and substantially
repair,
and keep in good and substantial repair and condition, all buildings or
other improvements erected and made upon the said land; and
that the mortgagee
shall at all reasonable times be at liberty, by himself, his agents or servants,
to enter upon the land to view
and inspect the said buildings and
improvements.
(5) That if the mortgagor fails to insure or keep insured
the said buildings and erections, or to pay the said rates, taxes and charges,
or to repair the said buildings and improvements, or to keep them in good and
substantial repair and condition as aforesaid, then
and in any such case, and as
often as the same shall happen, it shall be lawful for but not obligatory on the
mortgagee, at the cost
and expense in all things of the mortgagor, to insure the
said buildings and erections or any of them in the amount of their full
insurable value or in any less amount, or to pay any such premium, or to pay the
said rates, taxes and charges, or to repair the
said buildings and improvements
and keep them in good and substantial repair and condition.
(6) That in
the event of the said buildings and erections or any of them being destroyed or
damaged by fire, all moneys received by
the mortgagee under any insurance in
respect of any such destruction or damage shall be applied, at his sole option,
either in or
towards rebuilding or repairing the buildings and erections so
destroyed or damaged, or in or towards payment of the principal, interest
and
other moneys for the time being covered by the security, notwithstanding that
the same or any of them may not have accrued due
under the terms of the
mortgage:
Provided that, if the mortgagee applies the said moneys in or
towards payment of the principal and other moneys as aforesaid, the
mortgagor
shall have the right to pay off the whole amount remaining due under the
mortgage at any time within two months after the
application of the said moneys
has been made.
(7) That all moneys expended by the mortgagee in and about
effecting or keeping in force any insurance as aforesaid, or in paying
any of
the said rates, taxes and charges, or in repairing or keeping in repair any of
the said buildings and improvements as aforesaid,
or in lawfully exercising or
enforcing any power, right or remedy in the mortgage contained or implied in
favour of the mortgagee,
shall be payable to him by the mortgagor on demand, and
until paid shall be charged on the said land, together with interest at the
rate
agreed upon in the mortgage, computed from the date or dates of the said moneys
being expended.
(8) That the mortgagee will, on payment by the mortgagor
of all moneys due under the mortgage at the time and in the manner mentioned
in
the mortgage for payment of the principal sum, or at any time thereafter on
payment of all moneys then due (three clear months'
notice of the intention to
pay the same having been given) execute a proper (and registrable where
necessary) discharge, release
or satisfaction of the mortgage to be prepared and
stamped (and registered where necessary) by or at the cost of the
mortgagor.
COVENANTS,
CONDITIONS AND POWERS IMPLIED
IN
MORTGAGES SUBJECT TO PRIOR
MORTGAGES
(9) That the mortgagor will duly and punctually pay all
principal, interest and other moneys secured by, and will perform and observe
all the covenants and conditions contained or implied in, any mortgage having
priority to this present mortgage.
(10) That if the mortgagor makes
default in the payment of any moneys secured by or in the performance or
observance of any of the
covenants and conditions contained or implied in any
mortgage having priority to this present mortgage it shall be lawful for but
not
obligatory upon this present mortgagee to pay those moneys and perform and
observe those covenants or conditions, and the provisions
of the foregoing
clause (7) shall, with the necessary modifications, apply with respect to all
moneys so paid and all expenses incurred
in performing or observing the
covenants or conditions of the prior mortgage.
(11) That compliance with
the provisions of any mortgage having priority to this present mortgage, which
relate to insurance against
loss or damage by fire shall be deemed, so far as it
extends, to be compliance with any provisions as to the like insurance contained
or implied in this present mortgage.
COVENANTS IMPLIED IN MORTGAGES OF LEASES
(12) That the rent reserved by the lease under which the
mortgagor holds the land has been paid, and the covenants and conditions
expressed or implied in the lease, and to be performed and observed by the
lessee, have been performed and observed up to the date
of the
mortgage.
(13) That the mortgagor will from time to time, so long as any
money remains owing on the security, pay the rent reserved by the lease
under
which the mortgagor holds the land, and perform and observe the covenants and
conditions expressed or implied in the lease
and to be performed and observed by
the lessee, and will at all times keep the mortgagee indemnified against all
actions, expenses
and claims on account of the non-payment of the said rent, or
the breach or non-observance of the said covenants or conditions, or
any of
them.
(14) That if the mortgagor makes default in the payment of the rent
reserved by the lease under which the mortgagor holds the land,
or in the
performance or observance of any of the covenants and conditions expressed or
implied in the lease and to be performed
and observed by the lessee, it shall be
lawful for but not obligatory upon the mortgagee to pay that rent and to perform
and observe
those covenants and conditions, and the provisions of the foregoing
clause (7) shall, with the necessary modifications, apply with
respect to all
moneys so paid and all expenses incurred in performing or observing the
covenants and conditions of the lease.
INTERPRETATION
(15) The expressions - "mortgagor" and "mortgagee" in the
foregoing provisions shall, where such meaning is not inconsistent with
the
context, extend to and include the personal representative, or in the case of a
corporation the successors and the assigns of
the mortgagor and mortgagee
respectively.
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Controlled by Ministry of the Attorney-General
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