Part I Preliminary

1 Short title and commencement

[Section 1 Amended by 26 Geo. V No. 97, s. 3 ]

(1)  This Act may be cited as the Conveyancing and Law of Property Act 1884 .

(2)  *[Section 1 Subsection (2) amended by 25 Geo. V No. 78, s. 3 ]*This Act shall commence on 1st January 1884.

2 Interpretation

*[Section 2 Amended by 25 Geo. V No. 78 ][Section 2 Amended by 25 Geo. V No. 97, s. 3 ][Section 2 Amended by 26 Geo. V No. 97, s. 3 ][Section 2 Amended by No. 67 of 1964, s. 2 ][Section 2 Amended by No. 75 of 1973, s. 2 and Sched. 1 ][Section 2 Amended by No. 19 of 1980, s. 171 and Sched. 1 ][Section 2 Amended by No. 28 of 1994, s. 39 ]**[Section 2 Amended by No. 30 of 1995, s. 3 and Sched. 1 ]*In this Act, unless the contrary intention appears –

bankruptcy includes liquidation by arrangement, and any other act or proceeding having, under any Act, effects or results similar to those of bankruptcy;

building purposes include the erecting and the improving of, and the adding to, and the repairing of buildings; and a building lease is a lease for building purposes or purposes connected therewith;

conveyance includes assignment, appointment, lease, settlement, and other assurance, made by deed, on a sale, mortgage, demise, or settlement of any property, or on any other dealing with or for any property;

Court means the Supreme Court;

covenant in gross means a covenant created under section 90AB ;

incumbrance includes a mortgage in fee, or for a less estate, and a trust for securing money, and a lien, and a charge of a portion, annuity, or other capital or annual sum; and incumbrancer includes every person entitled to the benefit of an incumbrance, or to require payment or discharge thereof;

instrument includes deed, will, schedule of easements under the Local Government (Building and Miscellaneous Provisions) Act 1993 , and Act;

land includes land of any tenure, and tenements and hereditaments corporeal or incorporeal, and houses and other buildings, also an undivided share in land; in relation to land income includes rents and profits, and possession includes receipt of income;

mortgage includes any charge on any property for securing money or money's worth; and mortgage money means money or money's worth, secured by a mortgage; and mortgagor includes any person from time to time deriving title under the original mortgagor, or entitled to redeem a mortgage, according to his estate, interest, or right in the mortgaged property; and mortgagee includes any person from time to time deriving title under the original mortgagee; and mortgagee in possession is, for the purposes of this Act, a mortgagee who, in right of the mortgage, has entered into and is in possession of the mortgaged property;

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;

purchaser includes a lessee or mortgagee, and an intending purchaser, lessee, or mortgagee, or other person who, for valuable consideration, takes or deals for any property; but sale means only a sale properly so called;

Register has the same meaning as it has in the Land Titles Act 1980 ;

rent includes yearly or other rent, toll, duty, royalty, or other reservation, by the hectare, the tonne, or otherwise; and fine includes premium or fore-gift, and any payment, consideration, or benefit in the nature of a fine, premium, or fore-gift;

securities include Government debentures, Treasury bills, and shares;

timber includes all indigenous or foreign trees, the wood of which is ordinarily used for building or manufacturing purposes, and the bark of such trees, but does not include brushwood, scrub, or underwood.

Part II Sales and Other Transactions

3 Conditions applicable to all contracts of sale of lands

(1)  [Section 3 Subsection (1) omitted by No. 3 of 1978, s. 2 ].  .  .  .  .  .  .  .  

(2)  A purchaser of any property shall not require the production, or any abstract or copy of any deed, will, or other document dated or made before the time prescribed by law, or stipulated, for commencement of the title, even though the same creates a power subsequently exercised by an instrument abstracted in the abstract furnished to the purchaser; nor shall he require any information, or make any requisition, objection, or inquiry with respect to any such deed, will, or document, or the title prior to that time, notwithstanding that any such deed, will, or other document, or that prior title, is recited, covenanted to be produced, or noticed; and he shall assume, unless the contrary appears, that the recitals contained in the abstracted instruments of any deed, will, or other document forming part of that prior title, are correct, and give all the material contents of the deed, will, or other document so recited, and that every document so recited was duly executed by all necessary parties, and perfected, if and as required, by acknowledgment, enrolment, or otherwise.

(3)  Where land sold is held by lease (not including under-lease), the purchaser shall assume, unless the contrary appears, that the lease was duly granted; and on production of the receipt for the last payment due for rent under the lease before the date of actual completion of the purchase, he shall assume, unless the contrary appears, that all the covenants and provisions of the lease have been duly performed and observed up to the date of actual completion of the purchase.

(4)  Where land sold is held by under-lease, the purchaser shall assume, unless the contrary appears, that the under-lease and every superior lease were duly granted; and on production of the receipt for the last payment due for rent under the under-lease before the date of actual completion of the purchase he shall assume, unless the contrary appears, that all the covenants and provisions of the under-lease have been duly performed and observed up to the date of actual completion of the purchase, and further that all rent due under every superior lease, and all the covenants and provisions of every superior lease, have been paid and duly performed and observed up to that date.

(5)  On a sale of any property, the expenses of the production and inspection of all Acts, records, deeds, wills, probates, letters of administration, and other documents, not in the vendor's possession, and the expenses of all journeys incidental to such production or inspection, and the expenses of searching for, procuring, making, verifying, and producing all certificates, declarations, evidences, and information not in the vendor's possession, and all attested, stamped, office, or other copies or abstracts of or extracts from any Acts or other documents aforesaid, not in the vendor's possession, if any such production, inspection, journey, search, procuring, making, or verifying is required by a purchaser, either for verification of the abstract, or for any other purpose, shall be borne by the purchaser who requires the same; and where the vendor retains possession of any document, the expenses of making any copy thereof, attested or unattested, which a purchaser requires to be delivered to him, shall be borne by that purchaser.

(6)  On a sale of any property in lots, a purchaser of two or more lots held wholly or partly under the same title shall not have a right to more than one abstract of the common title, except at his own expense.

(7)  This section applies only to titles and purchasers on sales properly so called, notwithstanding any interpretation in this Act.

(8)  This section applies only if and as far as a contrary intention is not expressed in the contract of sale, and shall have effect subject to the terms of the contract and to the provisions therein contained.

(9)  Nothing in this section shall be construed as binding a purchaser to complete his purchase in any case where, on a contract made independently of this section, and containing stipulations similar to the provisions of this section, or any of them, specific performance of the contract would not be enforced against him by the Court.

4 Provision by Court for incumbrances and giving effect to sale freed therefrom

(1)  Where land subject to any incumbrance, whether immediately payable or not, is sold by the Court, or out of Court, the Court may, if it thinks fit, on the application of any party to the sale, direct or allow payment into Court, in case of an annual sum charged on the land, or of a capital sum charged on a determinable interest in the land, of such amount as, when invested in Government securities, the Court considers will be sufficient, by means of the dividends thereof, to keep down or otherwise provide for that charge, and in any other case of capital money charged on the land, of the amount sufficient to meet the incumbrance and any interest due thereon; but in either case there shall also be paid into Court such additional amount as the Court considers will be sufficient to meet the contingency of further costs, expenses, and interest, and any other contingency except depreciation of investments, not exceeding one-tenth part of the original amount to be paid in unless the Court for special reason thinks fit to require a larger additional amount.

(2)  Thereupon the Court may, if it thinks fit, and either after or without any notice to the incumbrancer, as the Court thinks fit, declare the land to be freed from the incumbrance, and make any order for conveyance or vesting order proper for giving effect to the sale, and give directions for the retention and investment of the money in Court.

(3)  After notice served on the persons interested in or entitled to the money or fund in Court, the Court may direct payment or transfer thereof to the persons entitled to receive or give a discharge for the same, and generally may give directions respecting the application or distribution of the capital or income thereof.

5 Constructive notice: Restriction on

(1)  A purchaser shall not be prejudicially affected by notice of any instrument, fact, or thing, unless –

(a) it is within his own knowledge, or would have come to his knowledge if such inquiries and inspections had been made as ought reasonably to have been made by him; or

(b) [Section 5 Subsection (1) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] in the same transaction with respect to which a question of notice to the purchaser arises, it has come to the knowledge of his counsel, as such, or of his Australian legal practitioner, or other agent, as such, or would have come to the knowledge of his Australian legal practitioner, or other agent, as such, if such inquiries and inspections had been made as ought reasonably to have been made by the Australian legal practitioner or other agent.

(1A)  *[Section 5 Subsection (1A) inserted by No. 101 of 1973, s. 2 ]**[Section 5 Subsection (1A) amended by No. 9 of 1982, s. 7 and Sched. 10 ]*For the purposes of this section, a purchaser is not bound to inquire concerning, or to inspect –

(a) [Section 5 Subsection (1A) amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] the register kept pursuant to section 265 of the Corporations Act; or

(b) [Section 5 Subsection (1A) amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] the copies of instruments or the register of charges required by section 271 of the Corporations Act to be kept by a company.

(2)  This section shall not exempt a purchaser from any liability under, or any obligation to perform or observe, any covenant, condition, provision, or restriction contained in any instrument under which his title is derived, mediately or immediately; and such liability or obligation may be enforced in the same manner and to the same extent as if this section had not been enacted.

(3)  A purchaser shall not by reason of anything in this section be affected by notice in any case where he would not have been so affected if this section had not been enacted.

6 What is included in a conveyance of land

(1)  A conveyance of land shall be deemed to include and shall by virtue of this Act operate to convey, with the land, all buildings, erections, fixtures, hedges, ditches, fences, ways, waters, watercourses, liberties, privileges, easements, rights, and advantages whatsoever appertaining or reputed to appertain to the land, or any part thereof, or at the time of conveyance demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land or any part thereof.

(2)  A conveyance of land having houses or other buildings thereon shall be deemed to include, and shall by virtue of this Act operate to convey with the land, houses, or other buildings, all outhouses, erections, fixtures, cellars, areas, courts, courtyards, cisterns, sewers, gutters, drains, ways, passages, lights, watercourses, liberties, privileges, easements, rights, and advantages whatsoever appertaining or reputed to appertain to the land, houses, or other buildings conveyed, or any of them, or any part thereof, or at the time of conveyance demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land, houses, or other buildings conveyed, or any of them, or any part thereof.

(3)  This section applies only if and as far as a contrary intention is not expressed in the conveyance, and shall have effect subject to the terms of the conveyance and to the provisions therein contained.

(4)  This section shall not be construed as giving to any person a better title to any property, right, or thing in this section mentioned than the title which the conveyance gives to him to the land expressed to be conveyed, or as conveying to him any property, right, or thing in this section mentioned further or otherwise than as the same could have been conveyed to him by the conveying parties.

(5)  This section applies only to conveyances made after the commencement of this Act.

7 Covenants for title implied in certain cases

[Section 7 Amended by 25 Geo. V No. 78 ]

(1)  *[Section 7 Subsection (1) amended by No. 101 of 1973, s. 3 ]*In a conveyance there shall, in the several cases in this section mentioned, be deemed to be included and there shall in those several cases, by virtue of this Act, be implied, a covenant to the effect in this section stated, by the person, or by each person who conveys, as far as regards the subject-matter or share of subject-matter expressed to be conveyed by him, with the person, if one, to whom the conveyance is made, or with the persons jointly, if more than one, to whom the conveyance is made as joint tenants, or with each of the persons, if more than one, to whom the conveyance is made as tenants in common, that is to say –

(a) In a conveyance for valuable consideration, other than a mortgage, the following covenant by a person who conveys as beneficial owner, namely:

That the person who so conveys has, with the concurrence of every other person, if any, conveying by his direction, full power to convey the subject-matter expressed to be conveyed, subject as, if so expressed, and in the manner in which it is expressed to be conveyed, and that that subject-matter shall remain to and be quietly entered upon, received, and held, occupied, enjoyed, and taken, by the person to whom the conveyance is expressed to be made, and any person deriving title under him, and the benefit thereof shall be received and taken accordingly without any lawful interruption or disturbance by the person who so conveys, or any person conveying by his direction, or rightfully claiming, or to claim, by, through, under, or in trust for the person who so conveys, or any person conveying by his direction, or by, through, or under any one not being a person claiming in respect of an estate or interest subject whereto the conveyance is expressly made, through whom the person who so conveys derives title; and that, freed and discharged from, or otherwise by the person who so conveys sufficiently indemnified against, all such estates, incumbrances, claims, and demands other than those subject to which the conveyance is expressly made, as either before or after the date of the conveyance have been or shall be made, occasioned, or suffered by that person or by any person conveying by his direction, or by any person rightfully claiming by, through, under, or in trust for the person who so conveys, or by, through, or under any person conveying by his direction, or by, through, or under any one through whom the person who so conveys derives title; and further, that the person who so conveys, and any person conveying by his direction, and every other person having or rightfully claiming any estate or interest in the subject-matter of conveyance, other than an estate or interest subject whereto the conveyance is expressly made, by, through, under, or in trust for the person who so conveys, or by, through, or under any person conveying by his direction, or by, through, or under any one through whom the person who so conveys derives title, will from time to time and at all times after the date of the conveyance, on the request and at the cost of any person to whom the conveyance is expressed to be made, or of any person deriving title under him, execute and do all such lawful assurances and things for further or more perfectly assuring the subject-matter of the conveyance to the person to whom the conveyance is made, and to those deriving title under him, subject as, if so expressed, and in the manner in which the conveyance is expressed to be made, as by him or them or any of them shall be reasonably required.

(b) In a conveyance of leasehold property for valuable consideration other than a mortgage, the following further covenant by a person who conveys as beneficial owner, namely:

That, notwithstanding anything by the person who so conveys, or any one through whom he derives title made, done, executed, or omitted, or knowingly suffered, the lease or grant creating the term or estate for which the land is conveyed is, at the time of conveyance, a good, valid, and effectual lease or grant of the property conveyed, and is in full force, unforfeited, unsurrendered, and in no wise become void or voidable, and that, notwithstanding anything as aforesaid, all the rents reserved by, and all the covenants, conditions, and agreements contained in the lease or grant, and on the part of the lessee or grantee and the persons deriving title under him to be paid, observed, and performed, have been paid, observed, and performed up to the time of conveyance.

(c) In a conveyance by way of mortgage, the following covenant by a person who conveys as beneficial owner, namely:

That the person who so conveys has, with the concurrence of every other person, if any, conveying by his direction, full power to convey the subject-matter expressed to be conveyed by him, subject as, if so expressed, and in the manner in which it is expressed to be conveyed; and also that, if default is made in payment of the money intended to be secured by the conveyance, or any interest thereon, or any part of that money or interest, contrary to any provision in the conveyance, it shall be lawful for the person to whom the conveyance is expressed to be made, and the persons deriving title under him, to enter into and upon, or receive, and thenceforth quietly hold, occupy, and enjoy or take and have the subject-matter expressed to be conveyed, or any part thereof, without any lawful interruption or disturbance by the person who so conveys, or any person conveying by his direction, or any other person not being a person claiming in respect of an estate or interest subject whereto the conveyance is expressly made; and that, freed and discharged from, or otherwise by the person who so conveys sufficiently indemnified against, all estates, incumbrances, claims, and demands whatever, other than those subject whereto the conveyance is expressly made; and further, that the person who so conveys, and every person conveying by his direction, and every person deriving title under any of them, and every other person having or rightfully claiming any estate of interest in the subject-matter of conveyance, or any part thereof, other than an estate or interest subject whereto the conveyance is expressly made, will from time to time and at all times, on the request of any person to whom the conveyance is expressed to be made, or of any person deriving title under him, but, as long as any right of redemption exists under the conveyance, at the cost of the person so conveying, or of those deriving title under him, and afterwards at the cost of the person making the request, execute and do all such lawful assurances and things for further or more perfectly assuring the subject-matter of conveyance and every part thereof to the person to whom the conveyance is made, and to those deriving title under him, subject as, if so expressed, and in the manner in which the conveyance is expressed to be made, as by him or them or any of them shall be reasonably required.

(d) In a conveyance by way of mortgage of leasehold property, the following further covenant by a person who conveys as beneficial owner, namely:

That the lease or grant creating the term or estate for which the land is held is, at the time of conveyance, a good, valid, and effectual lease or grant of the land conveyed, and is in full force, unforfeited, and unsurrendered, and in nowise become void or voidable, and that all the rents reserved by, and all the covenants, conditions, and agreements contained in, the lease or grant, and on the part of the lessee or grantee and the persons deriving title under him to be paid, observed, and performed, have been paid, observed, and performed up to the time of conveyance; and also that the person so conveying, or the persons deriving title under him, will at all times, as long as any money remains on the security of the conveyance, pay, observe, and perform, or cause to be paid, observed, and performed, all the rents reserved by, and all the covenants, conditions, and agreements contained in the lease or grant, and on the part of the lessee or grantee and the persons deriving title under him to be paid, observed, and performed, and will keep the person to whom the conveyance is made, and those deriving title under him, indemnified against all actions, proceedings, costs, charges, damages, claims, and demands, if any, to be incurred or sustained by him or them by reason of the non-payment of such rent or the non-observance or non-performance of such covenants, conditions, and agreements, or any of them.

(e) In a conveyance by way of settlement, the following covenant by a person who conveys as settlor, namely:

That the person so conveying, and every person deriving title under him by deed or act or operation of law in his lifetime subsequent to that conveyance, or by testamentary disposition or devolution in law, on his death, will, from time to time, and at all times after the date of that conveyance, at the request and cost of any person deriving title thereunder, execute and do all such lawful assurances and things for further or more perfectly assuring the subject-matter of the conveyance to the persons to whom the conveyance is made and those deriving title under them, subject as, if so expressed, and in the manner in which the conveyance is expressed to be made, as by them or any of them shall be reasonably required.

(f) In any conveyance, the following covenant by every person who conveys as trustee or mortgagee, or as personal representative of a deceased person or as committee of a lunatic so found by inquisition or under an order of the Court, which covenant shall be deemed to extend to every such person's own acts only, namely:

That the person so conveying 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 conveyance, or any part thereof, is or may be impeached, charged, affected, or incumbered in title, estate, or otherwise, or whereby or by means whereof the person who so conveys is in anywise hindered from conveying the subject-matter of the conveyance, or any part thereof, in the manner in which it is expressed to be conveyed.

(2)  *[Section 7 Subsection (2) amended by No. 101 of 1973, s. 3 ]*Where in a conveyance it is expressed that by direction of a person who directs as beneficial owner another person conveys, then, within this section, the person giving the direction, whether he conveys as beneficial owner or not, shall be deemed to convey as beneficial owner the subject-matter so conveyed by his direction; and a covenant on his part shall be implied accordingly.

(3)  *[Section 7 Subsection (3) amended by No. 101 of 1973, s. 3 ]*Where in a conveyance a person conveying does not convey as beneficial owner, or as settlor, or as trustee, or as mortgagee, or as personal representative of a deceased person, or as committee of a lunatic so found by inquisition or under an order of the Court, or by direction of a person as beneficial owner, no covenant on the part of the person conveying shall be, by virtue of this section, implied in the conveyance.

(4)  The benefit of a covenant implied as aforesaid shall be annexed and incident to and shall go with the estate or interest of the implied covenantee, and shall be capable of being enforced by every person in whom that estate or interest is, for the whole or any part thereof, from time to time vested.

(4A)  *[Section 7 Subsection (4A) inserted by No. 101 of 1973, s. 3 ]*For the purposes of this section, a person who is expressed to convey or direct as a person having a specified capacity mentioned in this section shall be deemed to convey or direct as such a person, whether or not he is in fact such a person, and to be liable on the covenants implied by this section even if he is not such a person.

(5)  A covenant implied as aforesaid may be varied or extended by deed, and as so varied or extended shall, as far as may be, operate in the like manner, and with all the like incidents, effects, and consequences, as if such variations or extensions were directed in this section to be implied.

(6)  This section applies only to conveyances made after the commencement of this Act.

8 Rights of purchaser regarding execution

[Section 8 Amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] On a sale, the purchaser shall not be entitled to require that the conveyance to him be executed in his presence, or in that of his Australian legal practitioner, as such; but shall be entitled to have at his own cost the execution of the conveyance attested by some person appointed by him, who may, if he thinks fit, be his Australian legal practitioner.

9 Acknowledgment of right to production: Undertaking for safe custody of documents

(1)  Where a person retains possession of documents, and gives to another an acknowledgment in writing of the right of that other to production of those documents, and to delivery of copies thereof (in this section called an acknowledgment), that acknowledgment shall have effect as in this section provided.

(2)  An acknowledgment shall bind the documents to which it relates in the possession or under the control of the person who retains them, and in the possession or under the control of every other person having possession or control thereof from time to time, but shall bind each individual possessor or person as long only as he has possession or control thereof; and every person so having possession or control from time to time shall be bound specifically to perform the obligations imposed under this section by an acknowledgment, unless prevented from so doing by fire or other inevitable accident.

(3)  The obligations imposed under this section by an acknowledgment are to be performed at the request in writing of the person to whom an acknowledgment is given, or of any person, not being a lessee at a rent, having or claiming any estate, interest, or right through or under that person, or otherwise becoming through or under that person interested in or affected by the terms of any document to which the acknowledgment relates.

(4)  The obligations imposed under this section by an acknowledgment are –

(a) an obligation to produce the documents or any of them at all reasonable times for the purpose of inspection, and of comparison with abstracts or copies thereof, by the person entitled to request production or by any one by him authorized in writing;

(b) an obligation to produce the documents or any of them at any trial, hearing, or examination in any court, or in the execution of any commission, or elsewhere in Tasmania, on any occasion on which production may properly be required, for proving or supporting the title or claim of the person entitled to request production, or for any other purpose relative to that title or claim; and

(c) an obligation to deliver to the person entitled to request the same true copies, or extracts, attested or unattested, of or from the documents or any of them.

(5)  All costs and expenses of or incidental to the specific performance of any obligation imposed under this section by an acknowledgment shall be paid by the person requesting performance.

(6)  An acknowledgment shall not confer any right to damages for loss or destruction of, or injury to, the documents to which it relates, from whatever cause arising.

(7)  Any person claiming to be entitled to the benefit of an acknowledgment may apply to the Court for an order directing the production of the documents to which it relates, or any of them, or the delivery of copies of or extracts from those documents or any of them to him, or some person on his behalf; and the Court may, if it thinks fit, order production, or production and delivery, accordingly, and may give directions respecting the time, place, terms, and mode of production or delivery, and may make such order as it thinks fit respecting the costs of the application, or any other matter connected with the application.

(8)  An acknowledgment shall by virtue of this Act satisfy any liability to give a covenant for production and delivery of copies of or extracts from documents.

(9)  Where a person retains possession of documents and gives to another an undertaking in writing for safe custody thereof, that undertaking shall impose on the person giving it, and on every person having possession or control of the documents from time to time, but on each individual possessor or person as long only as he has possession or control thereof, an obligation to keep the documents safe, whole, uncancelled, and undefaced, unless prevented from so doing by fire or other inevitable accident.

(10)  Any person claiming to be entitled to the benefit of such an undertaking may apply to the Court to assess damages for any loss, destruction of, or injury to the documents or any of them, and the Court may, if it thinks fit, direct an inquiry respecting the amount of damages, and order payment thereof by the person liable, and may make such order as it thinks fit respecting the costs of the application, or any other matter connected with the application.

(11)  An undertaking for safe custody of documents shall, by virtue of this Act, satisfy any liability to give a covenant for safe custody of documents.

(12)  The rights conferred by an acknowledgment or an undertaking under this section shall be in addition to all such other rights relative to the production, or inspection, or the obtaining of copies of documents as are not, by virtue of this Act, satisfied by the giving of the acknowledgment or undertaking, and shall have effect subject to the terms of the acknowledgment or undertaking, and to any provisions therein contained.

(13)  This section applies only if and as far as a contrary intention is not expressed in the acknowledgment or undertaking.

(14)  This section applies only to an acknowledgment or undertaking given, or a liability respecting documents incurred, after the commencement of this Act.

9A Revival of easements, &c., on disunity of seisin

[Section 9A Inserted by No. 72 of 1963, s. 2 ]

(1)  Where –

(a) the seisin in fee simple is united of two parcels of land of which there was theretofore separate seisin in fee simple; and

(b) over or upon one of those parcels any easement or restriction then existed for the benefit of the other –

the provisions of this section apply when the seisin of the two parcels is to be disunited in fee simple.

(2)  There shall be implied, unless the contrary intention appears –

(a) in any contract of sale of either parcel which leads to the disunity a provision that it is sold –

(i) with all such rights and advantages as belonged to it; and

(ii) with all such burdens and disadvantages as it was subject to –

when it belonged to the predecessor in title of the person in whom seisin was united as mention in subsection (1) ; and

(b) in the conveyance of either parcel which effects that disunity –

(i) such grants and reservations as will create afresh the easements; and

(ii) such covenants, conditions, and declarations of trust as will renew the restrictions –

to which the other parcel was subject for its benefit or it was subject for the other parcel's benefit, when it belonged to that predecessor.

Part III Leases

10 Rent and benefit of lessee's covenants run with reversion

(1)  Rent reserved by a lease, and the benefit of every covenant or provision therein contained, 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 contained, 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 shall be capable of being 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.

(2)  This section applies only to leases made after the commencement of this Act.

11 Obligation of lessor's covenants runs with reversion

(1)  The obligation 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, the obligation aforesaid may be taken advantage of and enforced against any person so entitled.

(2)  This section applies only to leases made after the commencement of this Act.

11A Provisions as to attornments by tenants

[Section 11A Inserted by No. 72 of 1962, s. 3 ]

(1)  Where land is subject to a lease –

(a) the conveyance of a reversion in the land expectant on the determination of the lease; or

(b) the creation or conveyance of a rent-charge to issue or issuing out of the land –

shall be valid without any attornment of the lessee.

(2)  Nothing in subsection (1) –

(a) affects the validity of any payment of rent by the lessee to the person making the conveyance or grant before notice of the conveyance or grant is given to him by the person entitled thereunder; or

(b) renders the lessee liable for any breach of covenant to pay rent, on account of his failure to pay rent to the person entitled under the conveyance or grant before such notice is given to the lessee.

(3)  An attornment by the lessee in respect of any land to a person claiming to be entitled to the interest in the land of the lessor, if made without the consent of the lessor is void.

(4)  Subsection (3) does not apply to an attornment –

(a) made pursuant to a judgment of a court of competent jurisdiction;

(b) to a mortgagee, by a lessee holding under a lease from the mortgagor where the right of redemption is barred; or

(c) to any person rightfully deriving title under the lessor.

(5)  An attornment by a lease of land to a stranger claiming title to the lessor's estate is void without the lessor's consent.

(6)  Sections 9 and 10 of the Imperial Act referred to either as the fourth year of Queen Anne, Chapter 3, and section 11 of the Imperial Act of the eleventh year of King George the Second, Chapter 19, are repealed so far as they apply to this State.

12 Apportionment of conditions on severance, &c., of reversion

Notwithstanding the severance by conveyance, 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, contained in the lease, shall be apportioned, and shall remain annexed to the severed parts of the reversionary estate as severed, and shall be in force with respect to the term whereon each severed part is reversionary, or the term in any land which 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 alone originally been comprised in the lease.

13.

[Section 13 Repealed by No. 3 of 1978, s. 2 ]

14.

[Section 14 Repealed by No. 3 of 1978, s. 2 ]

15 Restrictions on and relief against forfeiture of leases

[Section 15 Subsection (6) amended by No. 68 of 1994, s. 3 and Sched. 1 ]

(1)  A right of re-entry or forfeiture under any proviso or stipulation in a lease, for a breach of any covenant or condition in the lease, shall not be enforceable, by action or otherwise, unless and until the lessor serves on the lessee a notice specifying the particular breach complained of and, if the breach is capable of remedy, requiring the lessee to remedy the breach, and 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 such 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)  For the purposes of this section a lease includes an original or derivative under-lease, also a grant at a fee farm rent, or securing a rent by condition; and a lessee includes an original or derivative under-lessee, and the executors, administrators, and assigns of a lessee, also a grantee under such a grant as aforesaid, his successors and assigns, and a lessor includes an original or derivative under-lessor, and the executors, administrators, and assigns of a lessor, also a grantor as aforesaid, and his successors and assigns.

(4)  This section applies, 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.

(5)  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.

(6)  [Section 15 Subsection (6) amended by No. 24 of 2004, s. 29, Applied:01 Jan 2005] *[Section 15 Subsection (6) amended by No. 47 of 1958, s. 2 ]*This section does not extend to a covenant or condition against the assigning, under-letting, parting with the possession, or disposing of the land leased, or to a condition for forfeiture on the bankruptcy of the lessee, or on the taking in execution of the lessee's interest, or, in the case of a lease of any premises in respect of which an hotel licence or public-house licence is in force under the Liquor Licensing Act 1990 , to a covenant not to do or omit any act or thing whereby the licence may be forfeited or the premises delicensed.

(7)  This section shall not affect the law relating to re-entry or forfeiture or relief in case of non-payment of rent.

(8)  This section applies to leases made either before or after the commencement of this Act, and shall have effect notwithstanding any stipulation to the contrary.

16 Effect of licences

[Section 16 Amended by 26 Geo. V No. 97, s. 3 ]

(1)  Where a licence is granted to a lessee to do any act, the licence, unless otherwise expressed, extends only to –

(a) the permission actually given;

(b) the specific breach of any provision or covenant referred to; or

(c) any other matter thereby specifically authorized to be done –

and the licence does not prevent any proceeding for any subsequent breach unless otherwise specified in the licence.

(2)  Notwithstanding any such licence –

(a) all rights under covenants and powers of re-entry contained in the lease remain in full force and are available as against any subsequent breach of covenant, condition, or matter not specifically authorized or waived in the same manner as if no licence had been granted; and

(b) the condition or right of entry remains in force in all respects as if the licence had not been granted, save in respect of the particular matter authorized to be done.

(3)  Where in any lease there is a power or condition of re-entry on the lessee assigning, subletting, or doing any other specified act without a licence, and a licence is granted to –

(a) any one of two or more lessees to do any act, or to deal with his equitable share or interest; or

(b) any lessee, or any one of two or more lessees, to assign or underlet part only of the property, or to do any act in respect of part only of the property –

the licence does not operate to extinguish the right of entry in case of any breach of covenant or condition by the co-lessees of the other shares or interests in the property, or by the lessee or lessees of the rest of the property, as the case may be, in respect of such shares or interests or remaining property, but the right of entry remains in force in respect of the shares, interests, or property not subject to the licence.

(4)  This section applies to licences granted after 4th October 1860.

Part IV Mortgages

17 Obligation on mortgagee to transfer instead of reconveying

(1)  Where a mortgagor is entitled to redeem, he shall, by virtue of this Act, have power to require the mortgagee, instead of reconveying, and on the terms on which he would be bound to reconvey, to assign the mortgage debt and convey the mortgaged property to any third person, as the mortgagor directs; and the mortgagee shall, by virtue of this Act, be bound to assign and convey accordingly.

(2)  The right conferred on the mortgagor by this section shall belong to and be capable of being enforced by each incumbrancer, or by the mortgagor, notwithstanding any intermediate incumbrance; but a requisition of an incumbrancer shall prevail over a requisition of the mortgagor, and, as between incumbrancers, a requisition of a prior incumbrancer shall prevail over a requisition of a subsequent incumbrancer.

(3)  This section does not apply in the case of a mortgagee being or having been in possession.

(4)  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.

18 Power of mortgagor to inspect title deeds

(1)  A mortgagor, as long as his right to redeem subsists, shall, by virtue of this Act, be entitled, at reasonable times, on his request, and at his own cost, and on payment of the mortgagee's costs and expenses in this behalf, to inspect and make copies or abstracts of or extracts from the documents of title relating to the mortgaged property in the custody or power of the mortgagee.

(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.

19 Leasing power of mortgagor and mortgagee in possession

(1)  A mortgagor of land while in possession shall, as against every incumbrancer, have, by virtue of this Act, power to make any such lease of the mortgaged land, or any part thereof, as is in this section described and authorized.

(2)  A mortgagee of land while in possession shall, as against all prior incumbrancers, if any, and as against the mortgagor, have, by virtue of this Act, power to make any such lease as aforesaid.

(3)  The leases which this section authorizes are –

(a) an agricultural or occupation lease for any term not exceeding 21 years; and

(b) a building lease for any term not exceeding 99 years.

(4)  Every person making a lease under this section may execute and do all assurances and things necessary or proper in that behalf.

(5)  Every such lease shall be made to take effect in possession not later than 12 months after its date.

(6)  Every such lease shall reserve the best rent that can reasonably be obtained, regard being had to the circumstances of the case, but without any fine being taken.

(7)  Every such lease shall contain a covenant by the lessee for payment of the rent, and a condition of re-entry on the rent not being paid within a time therein specified not exceeding 30 days.

(8)  A counterpart of every such lease shall be executed by the lessee and delivered to the lessor, of which execution and delivery the execution of the lease by the lessor shall, in favour of the lessee and all persons deriving title under him, be sufficient evidence.

(9)  Every such building lease shall be made in consideration of the lessee, or some person by whose direction the lease is granted, having erected, or agreeing to erect within not more than 5 years from the date of the lease, buildings, new or additional, or having improved or repaired buildings, or agreeing to improve or repair buildings, within that time, or having executed, or agreeing to execute, within that time, on the land leased, an improvement for or in connection with building purposes.

(10)  In any such building lease a peppercorn rent, or a nominal or other rent less than the rent ultimately payable, may be made payable for the first 5 years, or any less part of the term.

(11)  In case of a lease by the mortgagor, he shall, within one month after making the lease, deliver to the mortgagee, or, where there are more than one, to the mortgagee first in priority, a counterpart of the lease duly executed by the lessee; but the lessee shall not be concerned to see that this provision is complied with.

(12)  A contract to make or accept a lease under this section may be enforced by or against every person on whom the lease if granted would be binding.

(13)  This section applies only if and as far as a contrary intention is not expressed by the mortgagor and mortgagee in the mortgage deed, or otherwise by them in writing, and shall have effect subject to the terms of the mortgage deed or of any such writing and to the provisions therein contained.

(14)  This section applies only in case of a mortgage made after the commencement of this Act; but the provisions thereof, or any of them, may, by agreement in writing made after the commencement of this Act, between mortgagor and mortgagee, be applied to a mortgage made before the commencement of this Act, so nevertheless, that any such agreement shall not prejudicially affect any right or interest of any mortgagee not joining in or adopting the agreement.

(15)  The provisions of this section referring to a lease shall be construed to extend and apply, as far as circumstances admit, to any letting, and to an agreement, whether in writing or not, for leasing or letting.

20 Further leasing powers; Limitation of term

(1)  Nothing in this Act shall prevent the mortgage deed from reserving to or conferring on the mortgagor or the mortgagee, or both, any further or other powers of leasing or having reference to leasing; and any further or other powers so reserved or conferred shall be exercisable, as far as may be, as if they were conferred by this Act, and with all the like incidents, effects, and consequences, unless a contrary intention is expressed in the mortgage deed.

(2)  Nothing in this Act shall be construed to enable a mortgagor or mortgagee to make a lease for any longer term or on any other conditions than such as could have been granted or imposed by the mortgagor, with the concurrence of all the incumbrancers, if this Act had not been passed.

21 Powers incident to estate or interest of mortgagee

(1)  *[Section 21 Subsection (1) amended by 25 Geo. V No. 78, s. 3 ]*A mortgagee, where the mortgage is made by deed, shall, by virtue of this Act, have the following powers, to the like extent as if they had been in terms conferred by the mortgage deed, but not further, namely, a power:

(a) When the mortgage money or any interest thereon has become due, to sell, or to concur with any other person in selling, the mortgaged property, or any part thereof, either subject to proper charges or not, and either together or in lots, by public auction or by private contract, subject to such conditions respecting title, or evidence of title, or other matter, as he (the mortgagee) thinks fit, with power to vary any contract for sale, and to buy in at an auction, or to rescind any contract for sale, and to resell, without being answerable for any loss occasioned thereby;

(b) At any time after the date of the mortgage deed, to insure and keep insured against loss or damage by fire any building, or any effects or property of an insurable nature, whether affixed to the freehold or not, being or forming part of the mortgaged property, in addition to the mortgage money, and with the same priority, and with interest at the same rate, as the mortgage money;

(c) When the mortgage money has become due, to appoint a receiver of the income of the mortgaged property, or any part thereof; and

(d) While the mortgagee is in possession, to cut and sell timber and other trees, not planted or left standing for shelter or ornament, or to contract for any such cutting and sale, to be completed within any time not exceeding 12 months from the making of the contract.

(2)  The provisions of this Act relating to the foregoing powers, comprised either in this section, or in any subsequent section regulating the exercise of those powers, may be varied or extended by the mortgage deed, and, as so varied or extended, shall, as far as may be, operate in the like manner and with all the like incidents, effects, and consequences, as if such variations or extensions were contained in this Act.

(3)  This section applies only if and as far as a contrary intention is not expressed in the mortgage deed, and shall have effect subject to the terms of the mortgage deed and to the provisions therein contained.

(4)  This section applies only where the mortgage deed is executed after the commencement of this Act.

22 Regulation of exercise of mortgagee's power of sale

(1)  A mortgagee shall not exercise the power of sale conferred by this Act unless and until notice of his intention to sell the mortgaged property, in consequence of default having been made in payment of the mortgage money, or part thereof, or of any interest due thereon, as the case may be, has been served on the mortgagor, or one of several mortgagors, or has been published in one or more newspapers in Tasmania at least one month before the date of such intended sale.

(2)  *[Section 22 Subsection (2) added by 26 Geo. V No. 97, s. 3 ]*The notice required by this section may be a notice of a general intention to exercise the power of sale conferred on a mortgagee by this Act.

(3)  *[Section 22 Subsection (3) added by 26 Geo. V No. 97, s. 3 ]*At any time subsequent to the termination of one month after such notice has been served on the mortgagor or one of several mortgagors, or has been published as provided by this section, and without any further notice of intention to sell in respect of the same default, the mortgagee may exercise the power of sale conferred by this Act.

(4)  *[Section 22 Subsection (4) added by 26 Geo. V No. 97, s. 3 ]*Any mortgagor, by writing under his hand, may waive notice either in any particular case or generally, and may accept less than one month's notice.

23 Obligations and rights in respect of conveyance on sale by mortgagee

(1)  A mortgagee exercising the power of sale conferred by this Act shall have power, by deed, to convey the property sold, for such estate and interest therein as is the subject of the mortgage, freed from all estates, interests, and rights to which the mortgage has priority, but subject to all estates, interests, and rights which have priority to the mortgage.

(2)  Where a conveyance is made in professed exercise of the power of sale conferred by this Act, the title of the purchaser shall not be impeachable on the ground that no case 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 an unauthorized, or improper, or irregular exercise of the power shall have his remedy in damages against the person exercising the power.

(3)  The money which is received by the mortgagee, arising from the sale, after discharge of prior incumbrances to which the sale is not made subject, if any, or after payment into Court under this Act of a sum to meet any prior incumbrance, shall be held by him in trust to be applied by him, first, in payment of all costs, charges, and expenses, properly incurred by him, as incident to the sale or any attempted sale or otherwise; and secondly, in discharge of the mortgage money, interest, and costs, and other money, if any, owing under the mortgage; and the residue of the money so received shall be paid to the person entitled to the mortgaged property, or authorized to give receipts for the proceeds of the sale thereof.

(4)  The power of sale conferred by this Act may be exercised by any person for the time being entitled to receive and give a discharge for the mortgage money.

(5)  The power of sale conferred by this Act shall not affect the right of foreclosure.

(6)  The mortgagee, his executors, administrators, or assigns, shall not be answerable for any involuntary loss happening in or about the exercise or execution of the power of sale conferred by this Act or of any trust connected therewith.

(7)  At any time after the power of sale conferred by this Act has become exercisable, the person entitled to exercise the same may demand and recover from any person, other than a person having in the mortgaged property an estate, interest, or right in priority to the mortgage, all the deeds and documents relating to the property, or to the title thereto, which a purchaser under the power of sale would be entitled to demand and recover from him.

24 Mortgagee's receipts, discharges, &c.

(1)  The receipt in writing of 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.

(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.

25 Insurance money: Amount and application of

(1)  The amount of an insurance effected by a mortgagee against loss or damage by fire under the power in that behalf conferred by this Act shall not exceed the amount specified in the mortgage deed, or, if no amount is therein specified, then shall not exceed two-third parts of the amount that would be required, in case of total destruction, to restore the property insured.

(2)  An insurance shall not, under the power conferred by this Act, be effected by a mortgagee in any of the following cases, namely:

(a) Where there is a declaration in the mortgage deed that no insurance is required;

(b) Where an insurance is kept up by or on behalf of the mortgagor in accordance with the mortgage deed;

(c) Where the mortgage deed contains no stipulation respecting insurance, and an insurance is kept up by or on behalf of the mortgagor, to the amount in which the mortgagee is by this Act authorized to insure.

(3)  All money received on an insurance effected under the mortgage deed or under this Act shall, if the mortgagee so requires, be applied by the mortgagor in making good the loss or damage in respect of which the money is received.

(4)  Without prejudice to any obligation to the contrary imposed by law or by special contract, a mortgagee may require that all money received on an insurance be applied in or towards discharge of the money due under his mortgage.

26 Receivers

[Section 26 Subsection (1) amended by No. 19 of 1980, s. 171 and Sched. 1 ]

(1)  *[Section 26 Subsection (1) amended by 26 Geo. V No. 97, s. 3 ]*A mortgagee entitled to appoint a receiver under the power in that behalf conferred by this Act or by the Land Titles Act 1980 , shall not appoint a receiver until he has become entitled to exercise the power of sale conferred by this Act or by the Land Titles Act 1980 , but may then, by writing under his hand appoint such person as he thinks fit to be 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 deed 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, by the mortgagee by writing under his hand.

(6)  The receiver shall be entitled to retain out of any money 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 5 per centum on the gross amount of all money received, as is specified in his appointment, and if no rate is so specified then at the rate of 5 per centum on that gross amount, or at such higher rate as the Court thinks fit to allow, on application made by him for that 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 money received by him, any building, effects, or property comprised in the mortgage, whether affixed to the freehold or not, being of an insurable nature.

(8)  The receiver shall apply all money received by him as follows, namely:

(a) In discharge of all rents, taxes, rates, and outgoings whatever affecting the mortgaged property;

(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 receiver;

(c) In payment of his commission and of the premiums on fire, life, or other insurances, if any, properly payable under the mortgage deed or under this Act, and the cost of executing necessary or proper repairs directed in writing by the mortgagee; and

(d) In payment of the interest accruing due in respect of any principal money due under the mortgage –

and shall pay the residue of the money 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.

27 Sale of mortgaged property in action for foreclosure, &c.

(1)  Any person entitled to redeem mortgaged property may have an order for sale instead of for redemption in an action brought by him, either for redemption alone, or for sale alone or for sale or redemption, in the alternative.

(2)  In any action, whether for foreclosure or for redemption, or for sale, or for the raising and payment in any manner of mortgage money, the Court, on the request of the mortgagee or of any person interested either in the mortgage money or in the right of redemption, and notwithstanding the dissent of any other person, and notwithstanding that the mortgagee or any person so interested does not appear in the action, and without allowing any time for redemption or for payment of any mortgage money, may, if it thinks fit, direct a sale of the mortgaged property, on such terms as it thinks fit, including, if it thinks fit, the deposit in Court of a reasonable sum fixed by the Court, to meet the expenses of sale and to secure performance of the terms.

(3)  In an action brought by a person interested in the right of redemption and seeking a sale, the Court may, on the application of any defendant, direct the plaintiff to give such security for costs as the Court thinks fit, and may give the conduct of the sale to any defendant, and may give such directions as it thinks fit respecting the costs of the defendants or any of them.

(4)  In any case within this section the Court may, if it thinks fit, direct a sale without previously determining the priorities of incumbrancers.

Part V Statutory Mortgage

28 Form of mortgage

(1)  A mortgage of freehold or leasehold land may be made by a deed expressed to be made by way of statutory mortgage, being in the form given in Part I of Schedule 1 , with such variations and additions, if any, as circumstances may require, and the provisions of this section shall apply thereto.

(2)  There shall be deemed to be included and there shall, by virtue of this Act, be implied, in the mortgage deed – First, a covenant with the mortgagee by the person expressed therein to convey as mortgagor to the effect following, namely: That the mortgagor will, on the stated day, pay to the mortgagee the stated mortgage money, with interest thereon in the meantime at the stated rate, by equal half-yearly payments, and will, after the stated day, if and as long as the mortgage money or any part thereof remains unpaid, pay to the mortgagee interest thereon, or on the unpaid part thereof, at the stated rate, by equal half-yearly payments, the first payment of interest to be made at the end of 6 months from the day on which the mortgage money shall have been advanced. Secondly, a proviso to the effect following, namely: That if the mortgagor, on the stated day, pays to the mortgagee the stated mortgage money, with interest thereon in the meantime at the stated rate, the mortgagee at any time thereafter, at the request and cost of the mortgagor, shall reconvey the mortgaged property to the mortgagor, or as he shall direct.

29 Forms of transfer of mortgage

(1)  A transfer of a mortgage may be made by a deed expressed to be made by way of a statutory transfer of mortgage, being in such one of the 3 forms (A) and (B) and (C) given in Part II of Schedule 1 as may be appropriate to the case, with such variations and additions, if any, as circumstances may require, and the provisions of this section shall apply thereto.

(2)  In whichever of those 3 forms the deed of transfer is made, it shall have effect as follows, namely:

(a) There shall become vested in the person to whom the benefit of the mortgage is expressed to be transferred, who, with his executors, administrators, and assigns, is hereafter in this section designated the transferee, the right to demand, sue for, recover, and give receipts for the mortgage money or the unpaid part thereof, and the interest then due, if any, and thenceforth to become due thereon, and the benefit of all securities for the same and the benefit of and the right to sue on all covenants with the mortgagee, and the right to exercise all powers of the mortgagee;

(b) All the estate and interest, subject to redemption of the mortgagee in the mortgaged land shall vest in the transferee, subject to redemption.

(3)  If the deed of transfer is made in the form (B), there shall also be deemed to be included, and there shall, by virtue of this Act, be implied therein, a covenant with the transferee by the person expressed to join therein as covenantor, to the effect following, namely: That the covenantor will, on the day by the mortgage deed fixed for payment of the mortgage money, or on a day to be stated in the deed of transfer, pay to the transferee the stated mortgage money, or so much thereof as then remains unpaid, with interest thereon, or on the unpaid part thereof, in the meantime, by equal half-yearly payments, at the rate stated in the mortgage deed; and will thereafter, as long as the mortgage money, or any part thereof, remains unpaid, pay to the transferee interest on that sum, or the unpaid part thereof, at the same rate, on the successive days by the mortgage deed fixed for payment of interest.

(4)  If the deed of transfer is made in the form (C) it shall, by virtue of this Act, operate not only as a statutory transfer of mortgage, but also as a statutory mortgage, and the provisions of this section shall have effect in relation thereto accordingly; but it shall not be liable to any increased stamp duty by reason only of it being designated a mortgage.

30 Implied covenants, joint and several

In a deed of statutory mortgage, or of statutory transfer of mortgage, where more persons than one are expressed to convey as mortgagors or to join as covenantors, the implied covenant on their part shall be deemed to be a joint and several covenant by them; and where there are more mortgagees or more transferees than one, the implied covenant with them shall be deemed to be a covenant with them jointly, unless the amount secured is expressed to be secured to them in shares or distinct sums, in which latter case the implied covenant with them shall be deemed to be a covenant with each severally in respect of the share or distinct sum secured to him.

31 Form of reconveyance of mortgage

A reconveyance of a mortgage may be made by a deed expressed to be made by way of statutory reconveyance of mortgage, being in the form given in Part III of Schedule 1 with such variations and additions, if any, as circumstances may require.

31A Discharge of mortgages by endorsements

[Section 31A Inserted by No. 27 of 1988, s. 4 ]

(1)  Mortgage money secured by a mortgage made before or after the commencement of the Conveyancing and Law of Property Amendment Act 1988 may be discharged by a memorandum endorsed on, or directed to be read as an annex to, the mortgage, signed by the mortgagee, and attested by a witness.

(2)  A memorandum referred to in subsection (1) –

(a) may be in, or to the effect of, the form given in Part IV of Schedule 1 ; and

(b) has effect as a deed.

(3)  A memorandum referred to in subsection (1) , unless a contrary intention is stated –

(a) discharges the property to which it is expressed to relate from all principal money and interest secured by, and from all claims under, the mortgage to which it is expressed to relate; and

(b) operates so as to convey the estate and interest of the mortgagee in that mortgaged property to the person for the time being entitled to the equity of redemption in that property.

(4)  Where, by virtue of subsection (3) , the estate and interest of the mortgagee is conveyed to 2 or more persons, those persons shall, unless a contrary intention appears in the memorandum referred to in subsection (1) , hold that estate and interest in the same manner and, if appropriate, in the same shares as they held the equity of redemption immediately before the discharge.

(5)  Where the mortgage consists of a mortgage and a further charge of more than one instrument, it is sufficient compliance with this section if a memorandum referred to in subsection (1) refers to –

(a) all the instruments by virtue of which the total of the mortgage money is secured; or

(b) the total of the mortgage money –

and is endorsed on, or directed to be read as an annex to, one of those instruments.

Part VI Satisfied Terms: Trust estates

32 Satisfied terms, whether out of freehold or leasehold, to cease

[Section 32 Substituted by 26 Geo. V No. 97, s. 3 ]

(1)  Where the purposes of a term of years, created or limited at any time out of freehold land, becomes satisfied either before or after the commencement of this Act (whether or not that term, either by express declaration or by construction of law, becomes attendant upon the freehold reversion), it shall merge in the reversion expectant thereon and shall cease accordingly.

(2)  Where the purposes of a term of years created or limited, at any time, out of leasehold land, become satisfied after the commencement of this Act, that term shall merge in the reversion expectant thereon and shall cease accordingly.

(3)  Where the purposes are satisfied only as respects part of the land comprised in a term, this section shall have effect as if a separate term had been created in regard to that part of the land.

33 Protection of trustee, &c.

[Section 33 Substituted by 26 Geo. V No. 97, s. 3 ]

(1)  Where a personal representative or trustee liable as such for –

(a) any rent, covenant, or agreement –

(i) reserved by or contained in any lease; or

(ii) payable under or contained in any grant made in consideration of a rent-charge;

(b) any indemnity given in respect of any such rent, covenant or agreement –

has satisfied all liabilities under the lease or grant which may have accrued or been claimed up to the date of the conveyance hereinafter mentioned, and where necessary, has set apart a sufficient fund to answer any future claim that may be made in respect of any fixed and ascertained sum which the lessee or grantee agreed to lay out on the property demised or granted, although the period for laying out the same may not have arrived, such personal representative or trustee may convey the property demised or granted to a purchaser, legatee, devisee, or other person entitled to call for a conveyance thereof.

(2)  After such conveyance the personal representative or trustee –

(a) may distribute the residuary real and personal estate of a deceased testator or intestate, or the trust estate, as the case may be (exclusive of any fund set apart as aforesaid), to or amongst the persons entitled thereto, without appropriating any part or any further part, as the case may be, of such estate to meet any future liability under such lease or grant; and

(b) notwithstanding such distribution, shall not be personally liable in respect of any subsequent claim under such lease or grant.

(3)  This section shall not prejudice the right of the lessor or grantor, or the persons deriving title under them respectively, to follow the assets of the deceased or the trust property into the hands of the persons amongst whom the same may have been distributed.

(4)  This section shall apply notwithstanding anything to the contrary in the will or other instrument, if any, creating the trust.

(5)  In this section lease includes an underlease and an agreement for a lease or underlease and any instrument giving any such indemnity as aforesaid or varying the liabilities under the lease; and grant applies to a grant whether the rent is created by limitation, grant, reservation, or otherwise, and includes an agreement for a grant and any instrument giving any such indemnity as aforesaid or varying the liabilities under the grant; and lessee and grantee include persons deriving title under the lessee and grantee respectively.

34 Devolution of trusts and powers

[Section 34 Amended by 25 Geo. V No. 78 ]**[Section 34 Substituted by 26 Geo. V No. 97, s. 3 ]

(1)  Until the appointment of new trustees, the personal representative for the time being of a sole trustee, or, where there were two or more trustees, of the last surviving or continuing trustee, shall be, and shall be deemed at all times to have been, capable of exercising or performing any power or trust, which was given to, or capable of being exercised by, the sole or last surviving or continuing trustee, or other the trustees or trustee for the time being of the trust.

(2)  This section shall take effect subject to any direction to the contrary expressed in the instrument, if any, creating the power or trust.

(3)  In this section personal representative does not include an executor who has renounced or has not proved.

(4)  The provisions of this section are subject to any restrictions affecting receipts by a sole trustee other than a trust corporation.

Part VIA Easements

[Part VIA Inserted by No. 67 of 1964, s. 3 ]

Division 1 [Division 1 of Part VIA Heading inserted by No. 16 of 1998, s. 4, Applied:05 Jun 1998] Easements generally

34A Short descriptions of easements

[Section 34A Inserted by No. 67 of 1964, s. 3 ]

(1)  In any instrument purporting to create or evidence an easement the words set forth in the first column of Schedule 8 shall have the same effect as if there had been inserted in lieu thereof the words appearing opposite them in the second column of that schedule.

(2)  Public policy requires that such words be given their full effect notwithstanding the creation of easements to arise at indefinite future times.

34B Party walls

*[Section 34B Inserted by No. 67 of 1964, s. 3 ]**[Section 34B Amended by No. 30 of 1995, s. 3 and Sched. 1 ]*Where in an instrument purporting to create or evidence easements in respect of a wall built or to be built so that the boundary between adjoining tenements passes or will pass longitudinally through the wall, that wall is described as a "party wall", that expression means, unless the contrary intention appears, that the wall is severed vertically along the boundary with separate ownership of the severed portions and with cross easements entitling –

(a) each of the persons entitled to a portion to have the whole wall continued in such a manner that each building supported thereby shall have the support of the whole wall; and

(b) .  .  .  .  .  .  .  .

34C Implication of regrant

*[Section 34C Inserted by No. 67 of 1964, s. 3 and Sched. 1 ]*Where an assurance of land purports to make that land subject to an easement appurtenant to other land of the grantor or testator, upon the vesting of that land in the grantee or devisee the latter shall be deemed effectively to have granted that easement to the grantor or his personal representatives.

Division 2 Parking easements

34D Interpretation

[Section 34D of Part VIA Inserted by No. 16 of 1998, s. 5, Applied:05 Jun 1998] In this Division –

dominant tenement means land for the benefit of which a parking easement exists or is to be created;

easement plan means a plan (which may, if the Recorder approves, form part of another plan) delineating the parking bay in which parking is authorised by a parking easement and delineating or describing the means of vehicular and pedestrian access to, and egress from, the parking bay;

owner of land means the owner of an estate in fee simple in the land or the owner of a leasehold estate in the land;

parking bay means the part of a servient tenement in which parking is authorised by a parking easement;

proprietor of a parking easement means the person in whose favour the easement exists and, if the easement is created for the benefit of land, the owner of the dominant tenement;

Recorder means the Recorder of Titles under the Land Titles Act 1980 ;

sealed plan means a final plan approved and sealed under Part 3 of the Local Government (Building and Miscellaneous Provisions) Act 1993 ;

servient tenement means land subject to a parking easement;

strata or community titles scheme means a plan or scheme under the Strata Titles Act 1998 ;

vehicle means –

(a) a vehicle for use on a road; or

(b) a vehicle for use on a track; or

(c) a vehicle for use on water; or

(d) a vehicle designed to be wholly or partially airborne.

34E Nature of parking easement

[Section 34E of Part VIA Inserted by No. 16 of 1998, s. 5, Applied:05 Jun 1998]

(1)  A parking easement is an easement conferring –

(a) a right to park a vehicle in the parking bay delineated in the easement plan; and

(b) a right of vehicular access to, and egress from, the parking bay by a means delineated or described in the easement plan; and

(c) a right of pedestrian access to, and egress from, the parking bay by a means defined or described in the easement plan.

(2)  A parking bay may be defined by reference to boundaries in a horizontal plane or by reference to boundaries in both a horizontal and a vertical plane.

(3)  A parking easement may confer a right of exclusive occupation in respect of the parking bay.

34F Creation of parking easement

[Section 34F of Part VIA Inserted by No. 16 of 1998, s. 5, Applied:05 Jun 1998]

(1)  Subject to the requirements of this Division relating to registration, a parking easement may be created in any of the following ways:

(a) by deed;

(b) as provided by section 105 of the Land Titles Act 1980 ;

(c) by a schedule of easements under section 87 of the Local Government (Building and Miscellaneous Provisions) Act 1993 ;

(d) by a plan or scheme registered under the Strata Titles Act 1998 ;

(e) in any other way approved by the Recorder.

(2)  A document under which a parking easement is created –

(a) must comply with any requirements as to its form imposed by the Recorder; and

(b) must set out the terms and conditions of the easement (although the document adequately complies with this paragraph if it uses a short form authorised by this Act); and

(c) must consist of, incorporate or be supported by a plan in a form approved by the Recorder –

(i) delineating the servient tenement and the parking bay and showing the position of the parking bay by reference to boundaries of the servient tenement; and

(ii) delineating or describing the means of vehicular access to, and egress from, the parking bay; and

(iii) delineating or describing the means of pedestrian access to, and egress from, the parking bay.

(3)  A parking easement cannot take effect unless the proposed use of the land for the parking of vehicles (and any related vehicular or pedestrian access) conforms with an approval under the Land Use Planning and Approvals Act 1993 .

34G Dominant and servient tenements

[Section 34G of Part VIA Inserted by No. 16 of 1998, s. 5, Applied:05 Jun 1998]

(1)  A parking easement may, but need not, be related to a dominant tenement.

(2)  If a parking easement is related to a dominant tenement, the dominant and servient tenements need not be contiguous and a sufficient relationship exists between them if the parking easement is reasonably necessary for the lawful use or enjoyment of the dominant tenement (including a prospective use that has been approved under the Land Use Planning and Approvals Act 1993 ).

(3)  Unity of seisin in the dominant and servient tenements does not destroy a parking easement.

34H Conditions of parking easement

[Section 34H of Part VIA Inserted by No. 16 of 1998, s. 5, Applied:05 Jun 1998]

(1)  A parking easement may be created on conditions –

(a) prescribing the classes of persons by whom vehicles may be parked under the easement; or

(b) prescribing the classes of vehicles that may be parked under the easement.

(2)  A parking easement may be created on conditions under which the easement operates for a specified period or periods or at specified times.

(3)  A parking easement may be created on conditions under which –

(a) obligations of maintenance and repair are imposed on either or both parties to the easement; or

(b) the proprietor of the easement is, or may be, required to pay charges or charges of a specified nature to the owner of the servient tenement; or

(c) charges may be made for the parking of vehicles in pursuance of rights conferred by the easement; or

(d) outstanding obligations are apportioned between the proprietor of the easement and the owner of the servient tenement on the termination or expiry of the easement.

34I Parking easement to run with land

[Section 34I of Part VIA Inserted by No. 16 of 1998, s. 5, Applied:05 Jun 1998]

(1)  The benefits and burdens of a parking easement run with title to land.

(2)  The rights and obligations conferred or imposed under the conditions of the easement are enforceable by or against the owner for the time being of the servient tenement and, if there is a dominant tenement, the dominant tenement but, if not, the proprietor of the easement.

(3)  Despite subsections (1) and (2) , if a parking easement is created over a leasehold estate in the servient tenement –

(a) the easement is not valid and binding against a mortgagee or encumbrancee of the servient tenement unless the mortgagee or encumbrancee has consented in writing to the easement; and

(b) the parking easement terminates on the expiry or termination of the lease.

34J Variation of parking easement

[Section 34J of Part VIA Inserted by No. 16 of 1998, s. 5, Applied:05 Jun 1998]

(1)  Subject to the requirements of this Division relating to registration, a parking easement may be varied by a document in a form approved by the Recorder evidencing agreement between the proprietor of the easement and the owner of the servient tenement to the variation.

(2)  A variation to create a new parking bay, or alter the boundaries of an existing parking bay, or alter the means of vehicular or pedestrian access to the parking bay cannot take effect unless –

(a) the document making the variation consists of, incorporates or is supported by a plan in a form approved by the Recorder showing how the easement plan is affected by the variation; and

(b) if the variation would change the use of land, the change of use conforms with an approval under the Land Use Planning and Approvals Act 1993 .

34K Termination of parking easement

[Section 34K of Part VIA Inserted by No. 16 of 1998, s. 5, Applied:05 Jun 1998]

(1)  Subject to the requirements of this Division relating to registration, a parking easement may be terminated by a document in a form approved by the Recorder evidencing –

(a) agreement between the proprietor of the easement and the owner of the servient tenement to the surrender of the easement; or

(b) if the terms and conditions of the easement impose no obligations on the proprietor of the easement, the proprietor's unilateral agreement to surrender the easement.

(2)  If a parking easement was created for the benefit of a dominant tenement in order to conform with an approval under the Land Use Planning and Approvals Act 1993 for the development or use of the dominant tenement, a document to terminate the easement cannot take effect unless the proposed termination also conforms with an approval under that Act.

34L Registration

[Section 34L of Part VIA Inserted by No. 16 of 1998, s. 5, Applied:05 Jun 1998]

(1)  The creation, variation, expiry or termination of a parking easement is –

(a) if the easement relates to land subject to the Land Titles Act 1980 , registrable under that Act; and

(b) if the easement relates to land that is not subject to the Land Titles Act 1980 , registrable under the Registration of Deeds Act 1935 .

(2)  The Recorder may register the creation, variation, expiry or termination of a parking easement on lodgment of a document in a form approved by the Recorder creating, varying or terminating the easement or evidencing its creation, variation, expiry or termination and, in the case of land subject to the Land Titles Act 1980 , registration is to be effected on the folio for the servient tenement and, if there is a dominant tenement, the folio for the dominant tenement.

(3)  Subject to subsection (4)  –

(a) a parking easement over land subject to the Land Titles Act 1980 does not take effect until registration of creation of the easement; and

(b) if a parking easement is registered, the variation, expiry or termination of the easement does not take effect until registered.

(4)  A parking easement created by lease for a term of 3 years or less –

(a) is not registrable under the Land Titles Act 1980 ; and

(b) takes effect without registration; and

(c) terminates automatically on determination of the lease.

(5)  Before the Recorder registers the creation, variation or termination of a parking easement, the Recorder may require production of evidence of any necessary approval under the Land Use Planning and Approvals Act 1993 .

(6)  On registration of a variation to, or the expiry or termination of, a parking easement created by sealed plan or a strata or community titles scheme, the Recorder must, if it is appropriate to do so, amend the plan or scheme to reflect the variation, expiry or termination of the easement.

Part VII Title: Sale and Purchase

35 Commencement of title

[Section 35 Substituted by No. 3 of 1978, s. 2 ]

(1)  In the completion of any contract of sale of land, 20 years shall be substituted as the period of commencement of title which a purchaser may require in place of 60 years, the period that formerly could have been so required; but earlier title than 20 years may be required in cases similar to those in which earlier title than 60 years might formerly be required.

(2)  Under a contract to sell and assign a term of years derived out of a leasehold interest in land, the intended assign shall not have the right to call for the title to the leasehold reversion.

(3)  On a contract to grant a lease for a term of years to be derived out of a leasehold interest, with a leasehold reversion, the intended lessee shall not have the right to call for the title to that reversion.

(4)  Where by reason of subsection (2) or subsection (3) an intending lessee or assign is not entitled to call for the title to a leasehold reversion, he shall not, where the contract is made on or after 1st July 1978, be deemed to be affected with notice of any matter or thing of which, if he had contracted that such title should be furnished, he might have had notice.

(5)  A purchaser shall not be deemed to be or ever to have been affected with notice of any matter or thing of which, if he had investigated the title or made enquiries in regard to matters prior to the period of commencement of title fixed by this Act, or by any other statute, or by any rule of law, he might have had notice, unless he actually makes such investigation or enquiries.

(6)  Notwithstanding anything in the Registration of Deeds Act 1935 , the estate of a purchaser in good faith for value under an instrument registered under that Act is not postponed in priority by the registration of an instrument –

(a) that was registered prior to the period of commencement of the purchaser's title as mentioned in subsection (5) ; and

(b) for which the purchaser is not entitled to call by virtue of the operation of this section.

(7)  Where a lease, whether made before or after the commencement of this Act, is made under a power contained in a settlement, will, act, or other instrument, any preliminary contract for or relating to the lease shall not, for the purpose of the deduction of title to an intended assign, form part of the title, or evidence of the title, to the lease.

(8)  This section, save where otherwise expressly provided, applies to contracts for sale whether made before or after the commencement of this Act, and applies to contracts for exchange in like manner as to contracts for sale, save that it applies only to contracts for exchange made on or after 1st July 1978.

(9)  This section applies only if and as far as a contrary intention is not expressed in the contract, and shall have effect subject to the terms of the contract and to the provisions therein contained.

35A Saving for certain restrictive covenants

[Section 35A Inserted by No. 3 of 1978, s. 2 ]

(1)  Where a covenant restrictive of user of freehold land that has been entered into before 1st July 1978 (otherwise than on a conveyance of the land on sale) would, but for the provisions of section 35 (5) , have been enforceable against a purchaser of the land burdened by the covenant, it is the duty of every owner of an estate or interest in the land who is aware of the covenant to give written notice of the covenant to any purchaser to whom he conveys any estate or interest in the land or any part of it, and thereupon that purchaser shall be deemed to be affected with notice of the covenant in like manner as if he had received that notice as a result of his own investigation or enquiries.

(2)  Where in respect of any covenant a person is in default in the discharge of the duty imposed on him by subsection (1) he is liable in damages to any person who, but for the default, would have been entitled to the benefit of the covenant for any loss suffered by that person by reason of the default.

(3)  Where by virtue of this section any person becomes liable to pay damages to another the Minister shall, by virtue of this subsection, be deemed to have entered into, with those persons, a contract guaranteeing the discharge of the liability, with a right of indemnity against the person liable for the damages, but section 6 of the Mercantile Law Act 1935 shall be deemed not to apply to such a contract.

36 Contracts for sale, &c., of land to be in writing

(1)  No action may be brought upon any contract for the sale or other disposition of land, or any interest in land, unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing, and signed by the party to be charged or by some other person thereunto by him lawfully authorized.

(2)  This section applies to contracts whenever made, and does not affect the law relating to part performance or sales by the Court.

37 Obligations and rights of vendor and purchaser

In the completion of any such contract as aforesaid, and subject to any stipulation to the contrary in the contract, the obligations and rights of vendor and purchaser shall be regulated by the following rules:

(a) Under a contract to grant or assign a term of years, whether derived or to be derived out of a freehold or leasehold estate, the intended lessee or assign shall not be entitled to call for the title to the freehold;

(b) Recitals, statements, and descriptions of facts, matters, and parties contained in deeds, instruments, Acts, or statutory declarations, 20 years old at the date of the contract, shall, unless and except so far as they shall be proved to be inaccurate, be taken to be sufficient evidence of the truth of such facts, matters, and descriptions;

(c) The inability of the vendor to furnish the purchaser with a legal covenant to produce and furnish copies of documents of title shall not be an objection to title in case the purchaser will, on the completion of the contract, have an equitable right to the production of such documents;

(d) Such covenants for production as the purchaser can and shall require shall be furnished at his expense, and the vendor shall bear the expense of perusal and execution on behalf of and by himself, and on behalf of and by necessary parties other than the purchaser;

(e) Where the vendor retains any part exceeding one-half of an estate to which any documents of title relate, he shall be entitled to retain such documents; but, if such vendor shall have parted with more than one-half of the estate to which such documents relate, he shall be bound to deposit such documents in the office of the Registrar of Deeds for safe custody on behalf of all parties interested.

38 Tacking and further advances

(1)  After the commencement of this Act, a prior mortgagee shall have a right to make further advances to rank in priority to subsequent mortgages (whether legal or equitable) –

(a) if an arrangement has been made to that effect with the subsequent mortgagees;

(b) if he had no notice of such subsequent mortgages at the time when the further advance was made by him; or

(c) whether or not he had such notice as aforesaid, where the mortgage imposes an obligation on him to make such further advances –

whether or not the prior mortgage was made expressly for securing further advances.

(2)  Where the prior mortgage was made expressly for securing a current account or other further advances, a mortgagee in relation to the making of further advances shall not be deemed to have notice of a mortgage merely by reason that it was registered, if it was not registered at the date of the original advance or when the last search, if any, by or on behalf of the mortgagee was made, whichever last happened.

(3)  Save in regard to the making of further advances as aforesaid, the right to tack is hereby abolished; but this provision shall not affect any priority in respect of further advances made without notice of a subsequent incumbrance or by arrangement with the subsequent incumbrancer.

39 Right of vendor or purchaser to obtain decision of judge as to requisitions, objections, or compensation, &c.

A vendor or purchaser of real or leasehold estate, or their representatives respectively, may at any time apply in a summary way to a judge in chambers in respect of any requisitions or objections, or any claim for compensation, or any other question arising out of or connected with the contract, not being a question affecting the existence or validity of the contract, and the judge shall make such order upon the application as to him shall appear just, and shall order how and by whom all or any of the costs of and incident to the application shall be borne and paid.

40 Voluntary conveyances to defraud creditors voidable

(1)  Save as provided in this section, every conveyance of property whenever made, with intent to defraud creditors shall be voidable at the instance of any person thereby prejudiced.

(2)  This section does not affect the operation of a disentailing assurance.

(3)  This section does not extend to any estate or interest in property conveyed for valuable consideration and in good faith or upon good consideration and in good faith to any person not having, at the time of the conveyance, notice of the intent to defraud creditors.

41 Voluntary disposition of land: How far voidable as against purchasers

(1)  Every voluntary disposition of land made with intent to defraud a subsequent purchaser is voidable at the instance of that purchaser.

(2)  For the purposes of this section, no voluntary disposition, whenever made, shall be deemed to have been made with intent to defraud by reason only that a subsequent conveyance for valuable consideration was made, if such subsequent conveyance was made after 23rd October 1896.

42 Acquisitions of reversions at under value

(1)  No acquisition made in good faith, without fraud or unfair dealing, of any reversionary interest in real or personal property, for money or money's worth, shall be liable to be opened or set aside merely on the ground of under value. In this subsection reversionary interest includes an expectancy or possibility.

(2)  This section does not affect the jurisdiction of the Court to set aside or modify unconscionable bargains.

Part VIII Married Women

43 Power of Court to bind interest of married woman

*[Section 43 Amended by No. 47 of 1958, s. 3 ]*Notwithstanding that a married woman is restrained from anticipation, the Court may, if it thinks fit, where it appears to the Court to be for her benefit, by order, with her consent, bind her interest in any property.

44 Power of attorney of married woman

(1)  A married woman, whether an infant or not, shall, by virtue of this Act, have power, as if she were unmarried and of full age, by deed, to appoint an attorney on her behalf for the purpose of executing any deed or doing any other act which she might herself execute or do.

(2)  This section applies only to deeds executed after the commencement of this Act.

45 Restraint on anticipation abolished

*[Section 45 Inserted by 26 Geo. V No. 97, s. 3 ]*No restraint on anticipation contained in any will taking effect after 31st December 1936, or in any other instrument executed after 31st December 1935, shall affect the power of a married woman to dispose of or deal with any property.

Part IX Infants

46 Management of land and receipt and application of income during minority

[Section 46 Subsection (5) amended by No. 21 of 1973, s. 5 and Sched. 1 ]

(1)  *[Section 46 Subsection (1) amended by 26 Geo. V No. 97, s. 3 ]*If and as long as any person who would but for this section be beneficially entitled to the possession of any land is an infant, the trustees appointed for this purpose by the settlement, if any, or, if there are none so appointed, then the persons, if any, who are for the time being under the settlement trustees with power of sale of the settled land, or of part thereof, or with power of consent to or approval of the exercise of such a power of sale, or if there are none, then any persons appointed as trustees for this purpose by the Court, on the application of a guardian or next friend of the infant, may enter into and continue in possession of the land; and in every such case the subsequent provisions of this section shall apply.

(2)  The trustees shall manage or superintend the management of the land, with full power to fell timber or cut underwood or deadwood for sale, or for repairs or otherwise, and to erect, pull down, rebuild, and repair houses and other buildings and erections, and to continue the working of mines, minerals, and quarries which have usually been worked, and to drain or otherwise improve the land or any part thereof, and to insure against loss by fire, and to make allowances to and arrangements with tenants and others, and to determine tenancies, and to accept surrenders of leases and tenancies, and generally to deal with the land in a proper and due course of management; but so that, where the infant is impeachable for waste, the trustees shall not commit waste, and shall cut timber on the same terms only, and subject to the same restrictions, on and subject to which the infant could, if of full age, cut the same.

(3)  The trustees may, out of the income of the land, including the produce of the sale of timber, underwood, and deadwood, pay the expenses incurred in the management, or in the exercise of any power conferred by this section or otherwise in relation to the land, and all outgoings not payable by any tenant or other person, and shall keep down any annual sum, and the interest of any principal sum, charged on the land.

(4)  *[Section 46 Subsection (4) amended by 25 Geo. V No. 78 ]*The trustees may apply at discretion any income which, in the exercise of such discretion, they deem proper, according to the infant's age, for his maintenance, education, or benefit, or pay thereout any money to the infant's parent or guardian, to be applied for the same purposes.

(5)  *[Section 46 Subsection (5) amended by 26 Geo. V No. 97, s. 3 ]*The trustees shall lay out the residue of the income of the land in investment on securities on which they are by the settlement, if any, or by law, authorized to invest trust money, with power to vary investments, and shall accumulate the income of the investments so made in the way of compound interest, by similarly investing such income and the resulting income of investments; and shall stand possessed of the accumulated fund arising from income of the land and from investments of income on the trusts following, namely:

(a) If the infant attains the age of 18 years, then in trust for the infant;

(b) If the infant dies while an infant, then, where the infant was, under a settlement, tenant for life, or by purchase tenant in tail, or tail male or tail female, on the trusts, if any, declared of the accumulated fund by that settlement; but where no such trusts are declared, or the infant has taken the land from which the accumulated fund is derived by descent, and not by purchase, or the infant is tenant for an estate in fee simple, absolute or determinable, then in trust for the infant's personal representatives, as part of the infant's personal estate –

but the accumulations, or any part thereof, may at any time be applied as if the same were income arising in the then current year.

(6)  Where the infant's estate or interest is in an undivided share of land, the powers of this section relative to the land may be exercised jointly with persons entitled to possession of, or having power to act in relation to, the other undivided share or shares.

(7)  This section applies only if and as far as a contrary intention is not expressed in the instrument under which the interest of the infant arises, and shall have effect subject to the terms of that instrument and to the provisions therein contained.

(8)  This section applies only where that instrument comes into operation after the commencement of this Act.

47 Application by trustees of income of property of infant for maintenance, &c.

(1)  *[Section 47 Subsection (1) amended by No. 21 of 1973, s. 5 and Sched. 1 ]*Where any property is held by trustees in trust for an infant, either for life, or for any greater interest, and whether absolutely, or contingently on his attaining the age of 18 years, or on the occurrence of any event before his attaining that age, the trustees may, at their sole discretion, pay to the infant's parent or guardian, if any, or otherwise apply for or towards the infant's maintenance, education, or benefit, the income of that property or any part thereof, whether there is any other fund applicable to the same purpose, or any person bound by law to provide for the infant's maintenance or education, or not.

(2)  The trustees shall accumulate all the residue of that income in the way of compound interest, by investing the same and the resulting income thereof from time to time on securities on which they are by the settlement, if any, or by law authorized to invest trust money, and shall hold those accumulations for the benefit of the person who ultimately becomes entitled to the property from which the same arise; but so that the trustees may at any time, if they think fit, apply those accumulations or any part thereof as if the same were income arising in the then current year.

(3)  This section applies only if and as far as a contrary intention is not expressed in the instrument under which the interest of the infant arises, and shall have effect subject to the terms of that instrument and to the provisions therein contained.

(4)  This section applies whether that instrument comes into operation before or after the commencement of this Act.

48 Power of guardians of minors to surrender and renew leases by order of Court

[Section 48 Inserted by 26 Geo. V No. 97, s. 3 ]

(1)  Where any infant is entitled to any lease made or granted for the life of any person, or for any term of years, either absolute or determinable upon the death of any person or otherwise, such infant, or his guardian, or other person on his behalf, may apply to the Court, in a summary way; and by the order and direction of the Court such infant, or his guardian, or any person appointed in the place of such infant by the Court may, by deed, surrender such lease, and accept and take, in the place and for the benefit of such infant, a new lease of the premises comprised in such lease so surrendered for and during such number of lives, or for such term of years determinable upon such number of lives, or for such term of years absolute, as was mentioned or contained in the lease so surrendered at the making thereof, or otherwise as the Court shall direct.

(2)  Every sum of money and other consideration paid by any guardian or other person as or in the nature of a fine, premium, or income for the renewal of any such lease, and all reasonable charges incident thereto, shall be paid out of the estate or effects of the infant for whose benefit the lease shall be renewed, or shall be a charge upon the leasehold premises, together with interest for the same, as the Court shall direct.

(3)  Every lease to be renewed as aforesaid shall operate and be to the same uses, and be liable to the same trusts, charges, incumbrances, dispositions, devises, and conditions as the lease to be surrendered would have been subject to in case such surrender had not been made.

49 Infants empowered to grant renewals of leases

*[Section 49 Inserted by 26 Geo. V No. 97, s. 3 ]**[Section 49 Amended by 25 Geo. V No. 78 ]*Where any infant might, in pursuance of any covenant or agreement, if not under disability, be compelled to renew any lease made or to be made for the life of any person, or for any term or number of years absolute or determinable on the death of any person, such infant, or his guardian in the name of such infant, may, by the direction of the Court, to be signified by an order to be made in a summary way upon the application of such infant or his guardian, or of any person entitled to such renewal, accept a surrender of such lease, and make and execute a new lease of the premises comprised in such lease, for and during such number of lives, or for such term determinable upon such number of lives, or for such term of years absolute, as was mentioned in the lease so surrendered at the making thereof, or otherwise, as the Court by such order shall direct.

50 Power of Court to authorize lease when for benefit of estate

*[Section 50 Inserted by 26 Geo. V No. 97, s. 3 ]**[Section 50 Amended by No. 51 of 1985, s. 4 and Sched. 2, Pt. II ]*Where any infant is seised or possessed of or entitled to any land in fee or in tail, or to any leasehold land for an absolute interest, and it shall appear to the Court to be for the benefit of such infant that a lease or under-lease should be made of such estates for terms of years, for encouraging the erection of buildings thereon, or for repairing buildings actually being thereon, or otherwise improving the same, or for farming or other purposes, such infant, or his guardian in the name of such infant, may, by the direction of the Court, to be signified by an order to be made in a summary way upon the application of such infant or his guardian, to make such lease of the land or any part thereof, according to his interest therein, and to the nature of the tenure of such estates respectively, for such term of years, and subject to such rents and covenants as the Court shall direct; but in no such case shall any fine or premium be taken, and in every such case the best rent that can be obtained, regard being had to the nature of the lease, shall be reserved upon such lease; and the leases, and covenants and provisions therein, shall be settled and approved of by the Court, and a counterpart of every such lease shall be executed by the lessee therein to be named, and such counterpart shall be deposited for safe custody in the office of the Court until such infant shall attain 18, but with liberty to proper parties to have the use thereof, if required in the meantime, for the purpose of enforcing any of the covenants therein contained.

51 When persons to renew are out of the jurisdiction

[Section 51 Inserted by 26 Geo. V No. 97, s. 3 ]

(1)  Where any person who, in pursuance of any covenant or agreement in writing, might, if within the jurisdiction and amenable to the process of the Court, be compelled to execute any lease by way of renewal, shall not be within the jurisdiction or not amenable to the process of the Court, the Court, by an order to be made upon the petition of any of the persons entitled to such renewal (whether such person be or be not under any disability), may direct such person as the Court shall think proper to appoint for that purpose to accept a surrender of the subsisting lease, and make and execute a new lease in the name of the person who ought to have renewed the same.

(2)  Such deed, executed by the person appointed as aforesaid, shall be as valid as if the person in whose name the same is made had executed the same, and had been alive and not under any disability.

(3)  In every such case it shall be in the discretion of the Court, if under the circumstances it shall seem requisite, to direct proceedings to be instituted to establish the right of the party seeking the renewal, and not to make the order for such new lease, except by the order to be made in such proceedings, or until after such order shall have been made.

52 Fines to be paid before renewal executed

[Section 52 Inserted by 26 Geo. V No. 97, s. 3 ]

(1)  No renewed lease shall be executed by virtue of this Act, in pursuance of any covenant or agreement, unless the fine, if any, or such other sum of money, if any, as ought to be paid on such renewal, and such things, if any, as ought to be performed in pursuance of such covenant or agreement, by the lessee or tenant, be first paid and performed.

(2)  Counterparts of every such renewed lease shall be duly executed by the lessee.

(3)  Every lease and surrender executed in pursuance of this Act shall be as valid and effectual as if the infant, by or on whose behalf the same is executed, had been of full age.

53 Application of premiums

[Section 53 Inserted by 26 Geo. V No. 97, s. 3 ]

(1)  All fines, premiums, and sums of money which shall be had, received, or paid for or on account of the renewal of any lease, after deduction of all necessary incidental charges and expenses, shall be paid, if such renewal shall be made by or in the name of an infant, to his guardian, and be applied and disposed of for the benefit of such infant, in such manner as the Court shall direct.

(2)  If such renewal shall be made in the name of any person out of jurisdiction or not amenable as aforesaid, all such fines, premiums, and sums of money shall be paid to such person or in such manner, or into Court to such account, and to be applied and disposed of as the Court shall direct.

54 Power of Court to order dividends to be applied for maintenance, &c.

*[Section 54 Inserted by 26 Geo. V No. 97, s. 3 ]**[Section 54 Amended by No. 51 of 1985, s 4 and Sched. 2, Pt. II ]*The Court, by order to be made on the petition of the guardian of any infant in whose name any stock is standing, or any sum of money, by virtue of any Act, for paying off any stock, and who shall be beneficially entitled thereto, or if there shall be no guardian, by order to be made in any cause depending in the Court, may direct all or any part of the dividends due or to become due in respect of such stocks, or any such sum of money, to be paid to any guardian of such infant, or to any other person, according to the discretion of such Court, for the maintenance and education or otherwise for the benefit of the infant, such guardian or other person to whom such payment shall be directed to be made being named in the order directing such payment; and the receipt of such guardian or other person for such dividends or sum of money, or any part thereof, shall be as effectual as if such infant had attained the age of 18 years, and had signed and given the same.

55 Power of Court to direct that costs be paid from lands or from dividends, &c.

*[Section 55 Inserted by 26 Geo. V No. 97, s. 3 ]*The Court may order the costs and expenses of and relating to any proceedings, orders, and directions to be made in pursuance of this Part, or any of them, to be paid and raised out of or from the lands or stock or the rents or dividends in respect of which the same respectively shall be made, in such manner as the Court shall think proper.

Part X Rent-Charges and Other Annual Sums: Judgments

56 Remedies for recovery of annual sums charged on land

[Section 56 Amended by 26 Geo. V No. 97, s. 3 ]

(1)  Where a person is entitled to receive out of any land, or out of the income of any land, any annual sum, payable half-yearly or otherwise, whether charged on the land or on the income of the land, and whether by way of rent-charge or otherwise, not being rent incident to a reversion, then, subject and without prejudice to all estates, interests, and rights having priority to the annual sum, the person entitled to receive the same shall have such remedies for recovering and compelling payment of the same as are described in this section, as far as those remedies might have been conferred by the instrument under which the annual sum arises, but not further.

(2)  If at any time the annual sum or any part thereof is unpaid for 21 days next after the time appointed for any payment in respect thereof, the person entitled to receive the annual sum may enter into and distrain on the land charged or any part thereof, and dispose according to law of any distress found, to the intent that thereby or otherwise the annual sum and all arrears thereof, and all costs and expenses occasioned by non-payment thereof, may be fully paid.

(3)  If at any time the annual sum or any part thereof is unpaid for 40 days next after the time appointed for any payment in respect thereof, then although no legal demand has been made for payment thereof, the person entitled to receive the annual sum may enter into possession of and hold the land charged or any part thereof, and take the income thereof, until thereby or otherwise the annual sum and all arrears thereof due at the time of his entry, or afterwards becoming due during his continuance in possession, and all costs and expenses occasioned by non-payment of the annual sum, are fully paid; and such possession when taken shall be without impeachment of waste.

(4)  In the like case the person entitled to the annual charge, whether taking possession or not, may also by deed demise the land charged, or any part thereof, to a trustee for a term of years, with or without impeachment of waste, on trust, by mortgage, or sale, or demise for all or any part of the term of the land charged, or of any part thereof, or by receipt of the income thereof, or by all or any of those means, or by any other reasonable means, to raise and pay the annual sum and all arrears thereof due or to become due, and all costs and expenses occasioned by non-payment of the annual sum, or incurred in compelling or obtaining payment thereof, or otherwise relating thereto, including the costs of the preparation and execution of the deed of demise, and the costs of the execution of the trusts of that deed; and the surplus, if any, of the money raised, or of the income received, under the trusts of that deed shall be paid to the person for the time being entitled to the land therein comprised in reversion immediately expectant on the term thereby created.

(5)  This section applies only if and as far as a contrary intention is not expressed in the instrument under which the annual sum arises, and shall have effect subject to the terms of that instrument and to the provisions therein contained.

(6)  This section applies only where that instrument comes into operation after the commencement of this Act.

57 Release of part of land not an extinguishment of whole rent-charge

*[Section 57 Inserted by 26 Geo. V No. 97, s. 3 ]*The release from a rent-charge of part of the land charged therewith shall not extinguish the whole rent-charge, but shall operate only to bar the right to recover any part of the rent-charge out of the land released, without prejudice nevertheless to the rights of all persons interested in the land remaining unreleased and not concurring in or confirming the release.

58 Release of part of land not to affect judgment as to residue

*[Section 58 Inserted by 26 Geo. V No. 97, s. 3 ]*The release from a judgment (including a writ or order imposing a charge) of part of any land charged therewith shall not affect the validity of the judgment as to the land remaining unreleased, or as to any other property not specifically released, without prejudice nevertheless to the rights of all persons interested in the land or property remaining unreleased, and not concurring in or confirming the release.

Part XI Construction and Effect of Deeds and Other Instruments

59 Land and interests therein lie in grant only

[Section 59 Inserted by 26 Geo. V No. 97, s. 3 ]

(1)  All lands and all interests therein lie in grant and are incapable of being conveyed by livery or livery and seisin or by feoffment, or by bargain and sale; and a conveyance of an interest in land may operate to pass the possession, or right to possession thereof, without actual entry, but subject to all prior rights thereto.

(2)  The use of the word "grant" is not necessary to convey land or to create any interest therein.

60 Conveyances to be by deed

[Section 60 Inserted by 26 Geo. V No. 97, s. 3 ]

(1)  All conveyances of land or of any interest therein are void for the purpose of conveying or creating a legal estate unless made by deed; but this provision does not apply to –

(a) assents by a personal representative;

(b) disclaimers made in accordance with the law relating to bankruptcy, or not required to be evidenced in writing;

(c) surrenders by operation of law, including surrenders which may by law be effected without writing;

(d) leases or tenancies or other assurances not required by law to be made in writing;

(e) receipts not required by law to be under seal;

(f) vesting orders of the Court or other competent authority; or

(g) conveyances taking effect by operation of law.

(2)  Except as hereinafter provided –

(a) no interest in land can be created or disposed of except by writing signed by the person creating or conveying the same, or by his agent thereunto lawfully authorized in writing, or by will, or by operation of law;

(b) a declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust, or by his will; and

(c) a disposition of an equitable interest or trust subsisting at the time of the disposition must be in writing signed by the person disposing of the same, or by his agent thereunto lawfully authorized in writing, or by will –

but this provision does not affect the creation or operation of resulting, implied, or constructive trusts.

(3)  All interests in land created by parol, and not put in writing and signed by the persons so creating the same, or by their agents thereunto lawfully authorized in writing, have, notwithstanding any consideration having been given for the same, the force and effect of interests at will only.

(4)  This section shall not affect the creation by parol of a lease taking effect in possession for a term not exceeding 3 years (whether or not the lessee is given power to extend the term) at the best rent that can be reasonably obtained without taking a fine.

(5)  Nothing in subsections (2) , (3) , or (4) shall –

(a) invalidate dispositions by will;

(b) affect any interest validly created before the commencement of this Act;

(c) affect the right to acquire an interest in land by virtue of taking possession; or

(d) affect the operation of the law relating to part performance.

61 Conditions and covenants: In what cases not implied, &c.

[Section 61 Inserted by 26 Geo. V No. 97, s. 3 ]

(1)  In respect of instruments executed after 1st January 1847 –

(a) an exchange or partition made by deed does not imply any condition in law;

(b) the word "give" or the word "grant" does not imply any covenant in law, except as otherwise provided by statute;

(c) 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 may not be named as a party to the conveyance or other instrument; and

(d) a deed between parties, to effect its objects, has the effect of an indenture though not indented or expressed to be an indenture.

(2)  Any conveyance made after 18th September 1874 of freehold land to any person without words of limitation, or any similar expression, shall pass to the grantee the fee simple or other the whole interest which the grantor had power to convey in such land, unless a contrary intention appears in the conveyance.

62 Conveyance by person to himself: Bodies corporate, joint tenancies

[Section 62 Inserted by 26 Geo. V No. 97, s. 3 ]

(1)  [Section 62 Subsection (1) amended by No. 7 of 2019, s. 29, Applied:08 May 2019] [Section 62 Subsection (1) amended by No. 7 of 2019, s. 29, Applied:08 May 2019] In a conveyance made after–

(a) 4th October 1860, personal property, including chattels real;

(b) 31st December 1883, freehold land or a thing in action–

may be conveyed by a person to himself jointly with another person by the like means by which it might be conveyed by him to another person; and, after the last-mentioned date, freehold land or a thing in action may, in like manner, be conveyed by a husband to his spouse, and by a wife to her spouse, alone or jointly with another person.

(2)  After 31st December 1935, a person may convey land to, or vest land in, himself.

(3)  Two or more persons, whether or not being trustees or personal representatives, may convey, and shall be deemed always to have been capable of conveying, any property vested in them to any one or more of themselves in like manner as they could have conveyed such property to a third person; provided that, if the persons in whose favour the conveyance is made are, by reason of any fiduciary relationship or otherwise, precluded from validly carrying out the transaction, the conveyance shall be liable to be set aside.

(4)  A body corporate shall be capable of acquiring and holding any real or personal property in joint tenancy in the same manner as if it were an individual.

(5)  Such acquisition and holding shall be subject to the like conditions and restrictions as attach to the acquisition and holding of property by a body corporate in severalty.

(6)  Where –

(a) a body corporate and an individual; or

(b) two or more bodies corporate –

become entitled to any property under circumstances, or by virtue of any instrument, which, if the body corporate were an individual would have created a joint tenancy, they shall be entitled to the property as joint tenants.

(7)  On the dissolution of a body corporate holding property as a joint tenant the property shall devolve on the other joint tenant.

63 Execution and attestation of deeds

[Section 63 Inserted by 26 Geo. V No. 97, s. 3 ][Section 63 Substituted by No. 10 of 2000, s. 5, Applied:28 Apr 2000]

(1)  The following rules govern the execution of a deed:

(a) a natural person executes a deed by signing, or making a mark on, the deed;

(b) a body corporate is not required to execute a deed by affixing its common seal unless it is so required by the enactment under which it is created or by any other law relating to the execution of deeds;

(c) a deed may be executed on behalf of a party to a deed –

(i) by an attorney acting under an authority conferred by the deed; or

(ii) where a party is a natural person, by a person acting at the direction, and in the presence, of the party.

(2)  The execution of a deed must be attested –

(a) where the deed is executed by a natural person, by at least one witness who is not a party to the deed; and

(b) where the deed is executed by a person acting at the direction, and in the presence, of a party, by a person who is authorised by law to take affidavits.

(3)  Delivery and indenting are not necessary in any case.

(4)  Notwithstanding the defective execution of a deed by or on behalf of a party to the deed, the execution is taken to be valid if it appears from evidence external to the deed that the party intended to be bound by it.

(5)  Notwithstanding any other law, an instrument executed in accordance with this section is a deed if –

(a) the instrument is expressed to be an indenture or deed; or

(b) the instrument is expressed to be sealed and delivered or, in the case of an instrument executed by a natural person, to be sealed; or

(c) it appears from the circumstances of the execution of the instrument or from the nature of the instrument that the parties intended it to be a deed.

63A.

[Section 63A Inserted by No. 101 of 1973, s. 4 ] [Section 63A Subsection (1) amended by No. 51 of 1985, s. 4 and Sched. 2, Pt. II ] [Section 63A Repealed by No. 10 of 2000, s. 5, Applied:28 Apr 2000]

64 Construction of "month", "person", and the singular and the masculine in deeds and other instruments

*[Section 64 Inserted by 26 Geo. V No. 97, s. 3 ]*In all deeds, contracts, wills, orders, and other instruments executed, made, or coming into operation after the commencement of this Act, unless the contrary intention appears –

(a) month means 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.

65 Words of limitation in tail

(1)  In a deed it shall be sufficient, in the limitation of an estate in tail, to use the words in tail, without the words heirs of the body; and in the limitation of an estate in tail male or in tail female, to use the words in tail male, or in tail female, as the case requires, without the words heirs male of the body, or heirs female of the body.

(2)  This section applies only to deeds executed after the commencement of this Act.

66 Construction of supplemental or annexed deed

(1)  A deed expressed to be supplemental to a previous deed, or directed to be read as an annex thereto, shall, as far as may be, be read and have effect as if the deed so expressed or directed were made by way of endorsement on the previous deed, or contained a full recital thereof.

(2)  This section applies to deeds executed either before or after the commencement of this Act.

67 Receipt in deed sufficient

(1)  A receipt for consideration money or securities in the body of a deed shall be a sufficient discharge for the same to the person paying or delivering the same, without any further receipt for the same being endorsed on the deed.

(2)  This section applies only to deeds executed after the commencement of this Act.

68 Receipt in deed or endorsed, evidence for subsequent purchaser

(1)  A receipt for consideration money or other consideration in the body of a deed or endorsed thereon, shall, in favour of a subsequent purchaser, not having notice that the money or other consideration thereby acknowledged to be received was not in fact paid or given, wholly or in part, be sufficient evidence of the payment or giving of the whole amount thereof.

(2)  This section applies only to deeds executed after the commencement of this Act.

69 Receipt in deed or endorsed, authority for payment to Australian legal practitioner

(1)  [Section 69 Subsection (1) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] [Section 69 Subsection (1) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] Where an Australian legal practitioner produces a deed, having in the body thereof or endorsed thereon a receipt for consideration money or other consideration, the deed being executed, or the endorsed receipt being signed, by the person entitled to give a receipt for that consideration, the deed shall be sufficient authority to the person liable to pay or give the same for his paying or giving the same to the Australian legal practitioner, without the Australian legal practitioner producing any separate or other direction or authority in that behalf from the person who executed or signed the deed or receipt.

(2)  This section applies only in cases where consideration is to be paid or given after the commencement of this Act.

70 Form of deeds in Schedule 2: Sufficiency of

Deeds in the form of and using the expressions in the forms given in Schedule 2 shall, as regards form and expression in relation to the provisions of this Act, be sufficient.

71 Benefit of covenant relating to land

[Section 71 Substituted by No. 72 of 1962, s. 4 ]

(1)  A covenant relating to land of the covenantee shall be deemed to be made with the covenantee and his successors in title and the persons deriving title under him or them and shall have effect as if those successors and other persons were expressed.

(2)  For the purposes of subsection (1) , in connection with covenants restrictive of the use of land, 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.

(3)  This section applies to covenants made after the commencement of the Local Government Act 1962 , but the repeal of this section as it stood at the commencement of that Act does not affect the completion of covenants made before the commencement of that Act.

71A Burden of covenants relating to land

[Section 71A Inserted by No. 72 of 1962, s. 4 ]

(1)  A covenant relating to land of a covenantor or capable of being bound by him, shall, unless a contrary intention is expressed –

(a) be deemed to be made by the covenantor on behalf of himself, his successors in title, and the persons deriving title under him or them; and

(b) have effect as if such successors and other persons were expressed.

(2)  Subsection (1) 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 connection with covenants restrictive of the use of land, successors in title shall be deemed to include owners and occupiers for the time being of the land.

(4)  This section applies only to covenants made after its commencement.

71B Fencing provisions

*[Section 71B Inserted by No. 67 of 1964, s. 4 ]*Where an instrument provides that the vendor shall not be required to fence it shall have the same effect as if it had provided that –

(a) notwithstanding anything contained or implied in the Boundary Fences Act 1908 , the vendor shall not be required to contribute to the cost of erecting, repairing, or maintaining any boundary fence between the sold land and any adjoining land belonging to the vendor;

(b) the vendor shall at all times be indemnified and kept indemnified by the purchaser, his personal representatives and assigns against all claims and demands in respect of any such boundary fences; and

(c) the provision shall cease and determine when and so soon as the adjoining land of the vendor shall be sold for valuable consideration.

72 Effect of covenant with two or more jointly

(1)  A covenant, and a contract under seal, and a bond or obligation under seal, made with two or more jointly, to pay money or to make a conveyance, or to do any other act, to them or for their benefit, shall be deemed to include, and shall, by virtue 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 to whom the right to sue on the covenant, contract, bond, or obligation devolves.

(2)  This section extends to a covenant implied by virtue of this Act.

(3)  This section applies only if and as far as a contrary intention is not expressed in the covenant, contract, bond, or obligation, and shall have effect subject to the covenant, contract, bond, or obligation, and to the provisions therein contained.

(4)  This section applies only to a covenant, contract, bond, or obligation made or implied after the commencement of this Act.

73 Effect of advance expressed to be on joint account, &c.

(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 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 be deemed to be and remain money or money's worth belonging to those persons on a joint account, as between them and the mortgagor or obligor; and the receipt in writing of the survivors or last survivor of them, or of the personal representatives of the last survivor, 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 if and as far as a contrary intention is not expressed in the mortgage, or obligation, or transfer, and shall have effect subject to the terms of the mortgage, or obligation, or transfer, and to the provisions therein contained.

(3)  This section applies only to a mortgage, or obligation, or transfer made after the commencement of this Act.

74 Grants of easements by way of use

(1)  A conveyance of freehold land to the use that any person may have, for an estate or interest not exceeding in duration the estate conveyed in the land, any easement, right, liberty, or privilege in, or over, or with respect to that land, or any part thereof, shall operate to vest in possession in that person that easement, right, liberty, or privilege, for the estate or interest expressed to be limited to him; and he, and the persons deriving title under him, shall have, use, and enjoy the same accordingly.

(2)  This section applies only to conveyances made after the commencement of this Act.

75 Conveyances to pass all the estate, &c.

(1)  Every conveyance shall, by virtue of this Act, be effectual to pass all the estate, right, title, interest, claim, and demand which the conveying parties respectively, have, in, to, or on the property conveyed, or expressed or intended so to be, or which they respectively have power to convey in, to, or on the same.

(2)  This section applies only if and as far as a contrary intention is not expressed in the conveyance, and shall have effect subject to the terms of the conveyance and to the provisions therein contained.

(3)  This section applies only to conveyances made after the commencement of this Act.

75A Conveyance of chambers, flats, &c.

[Section 75A Inserted by No. 72 of 1962, s. 5 ]

(1)  In this section chamber includes a suite of chambers.

(2)  In a conveyance of an estate in a chamber in a building –

(a) there shall be implied –

(i) a grant of such easements as may be necessary for the reasonable enjoyment of the chamber; and

(ii) a reservation of such easements as may be necessary for the reasonable enjoyment of the rest of the building;

(b) covenants binding the purchaser shall be deemed, unless the contrary intention appears, to be –

(i) intended to bind the owner for the time being of the chamber;

(ii) for the benefit and protection of the whole building and its curtilage and the other chambers therein and every part thereof; and

(iii) made with the vendor and the owners of the other chambers in the building; and

(c) covenants binding the vendor shall be deemed, unless the contrary intention appears, to be –

(i) intended to bind the owner for the time being of any part of the building retained by the vendor; and

(ii) for the benefit and protection of the chamber conveyed.

(3)  If in a conveyance of an estate in a chamber or in a deed accompanying such a conveyance are set forth the short provisions contained in Schedule 6 , the long provisions respectively set forth thereunder shall be implied as fully and effectually as if they were set forth fully and in words at length in the conveyance or deed, except so far as they may be altered, and added to in the conveyance or deed and where the word vendor or the word purchaser is used it includes all and each of the vendors or purchasers as the case may be, if more than one, and implies a joint and several covenant on their behalf.

(4)  [Section 75A Subsection (4) omitted by No. 23 of 1992, s. 27 and Sched. 1 ].  .  .  .  .  .  .  .