Part 3General rules affecting contracts, conveyances, and other instruments

Part 3—General rules affecting contracts, conveyances, and other instruments 26—Contracts for sale of land to be in writing (1) No action shall be brought upon any contract for the sale or other disposition of land or of any interest in land, unless an 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 person thereunto by him lawfully authorised. (2) This section does not affect the law relating to part performance, or sale by the court. 27—Discharge of incumbrances by the Court on sales or exchanges (1) Where land subject to any incumbrance, whether immediately realisable or payable or not, is sold or exchanged by the court, or out of court, the court may, if it thinks fit, on the application of any party to the sale or exchange, direct or allow payment into court of such sum as is hereinafter mentioned, that is to say— (a) in the case of an annual sum charged on the land, or of a capital sum charged on a determinable interest in the land, the sum to be paid into court shall be 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 (b) in any other case of capital money charged on the land, the sum to be paid into court shall be of an 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 or exchange, and give directions for the retention and investment of the money in court and for the payment or application of the income thereof. (3) The court may declare all other land (if any) affected by the incumbrance (besides the land sold or exchanged) to be freed from the incumbrance, and this power may be exercised either after or without notice to the incumbrancer, and notwithstanding that on a previous occasion an order, relating to the same incumbrance, has been made by the court which was confined to the land then sold or exchanged. (4) On any application under this section the court may, if it thinks fit, as respects any vendor or purchaser, dispense with the service of any notice which under this Act or otherwise would apart from this subsection be required to be served on the vendor or purchaser. (5) 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 on such terms as to delivering up of deeds or other documents or on such other terms as the court thinks fit, and generally may give directions respecting the application or distribution of the capital or income thereof. (6) This section shall apply to sales and exchanges, and to incumbrances whether created by statute or otherwise. 28—Conveyances to be by deed (1) All conveyances of land or of any interest therein shall be void for the purpose of conveying or creating a legal estate unless made by deed. (2) This section shall not apply to— (a) assents by a personal representative: (b) disclaimers made in accordance with the provisions of any 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: (g) conveyances taking effect by operation of law. 29—Instruments required to be in writing (1) Subject to the provisions hereinafter contained with respect to the creation of interests in land by parol— (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 authorised 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; (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 authorised in writing or by will. (2) This section shall not affect the creation or operation of resulting, implied, or constructive trusts. 30—Creation of interests in land by parol (1) 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 authorised in writing, shall have, notwithstanding any consideration having been given for the same, the force and effect of interests at will only. (2) Nothing in the preceding sections of this Act shall affect the creation by parol of leases taking effect in possession for a term not exceeding three years (whether or not the lessee is given power to extend the term) at the best rent which can be reasonably obtained without taking a fine. 31—Savings in regard to last two sections Nothing in the two last preceding sections shall— (a) invalidate dispositions by will; or (b) affect any interest validly created before the commencement of this Act; or (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. 32—Effect of possession of documents This Act shall not prejudicially affect the right or interest of any person arising out of or consequent on the possession by him of any documents relating to a legal estate in land, nor affect any question arising out of or consequent upon any omission to obtain or any other absence of possession by any person of any documents relating to a legal estate in land. 33—Interests of persons in possession This Act shall not prejudicially affect the interest of any person in possession or in actual occupation of land to which he may be entitled in right of such possession or occupation. 34—Persons taking who are not parties and as to indentures (1) A person may take an immediate or other interest in land or other property, or the benefit of any condition, right of entry, covenant, or agreement over or respecting land or other property, although he is not named as a party to the conveyance or other instrument. (2) A deed between parties, to effect its objects, shall have the effect of an indenture though not indented or expressed to be an indenture. 35—Conditions and certain covenants not implied (1) An exchange, a partition, or other conveyance of land made by deed shall not imply any condition in law. (2) The word "give" or "grant" shall not, in a deed, imply any covenant in law, save where otherwise provided by statute. 36—General words implied in conveyances (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, commons, 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 shall apply 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. 37—All estate clause implied (1) Every conveyance shall 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 shall apply 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. 38—Partial release of security from rent-charge A release from a rentcharge of part of the land charged therewith shall not extinguish the whole rentcharge, but shall operate only to bar the right to recover any part of the rentcharge out of the land released, without prejudice to the rights of any persons interested in the land remaining unreleased, and not concurring in or confirming the release. 39—Release of part of land affected from a judgment (1) A release from an execution of part of any land charged therewith shall not affect the validity of the execution as respects any land not specifically released. (2) This section shall operate without prejudice to the rights of any persons interested in the property remaining unreleased and not concurring in or confirming the release. 40—Conveyances by a person to self etc (1) Personal property, including chattels real, may be conveyed by a person to themselves jointly with another person by the like means by which it might be conveyed by the person to another person. (2) Freehold land, or a thing in action, may be conveyed by a person to themselves jointly with another person by the like means by which it might be conveyed by the person to another person. (3) A person may convey land or any other property to themselves, or to themselves and others. (4) 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 party: 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. 41—Execution and attestation of deeds (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 executes a deed by affixation of the common seal of the body corporate to the deed in accordance with the rules governing the use of the common seal; (c) a deed may be executed on behalf of a party to a deed— (i) by the signature of a person with express or implied authority to execute documents for and on behalf of the party; or (ii) if the party is a natural person—by a person acting at the direction, and in the presence, of the party; (d) a person may sign, seal or execute a deed by signing, sealing or executing an electronic form of the deed using electronic means. (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; (b) where the deed is executed by a person acting at the direction, and in the presence, of the 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 will be 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 execution of the instrument or from the nature of the instrument that the parties intended it to be a deed. 41AA—Execution and attestation of other instruments (1) A party may execute an instrument (not being a will)— (a) subject to a condition that the execution is not to be effective until the party gives (personally or by an agent) some further indication of the party's intention to be bound by the instrument; or (b) subject to some other condition on the fulfilment of which the execution is to become effective. (2) The conditional execution of an instrument may be expressed orally, in writing, or by conduct evincing an intention that the execution should be conditional. (3) Where an instrument is conditionally executed, then, subject to subsection (4) and any contrary intention that appears from the instrument— (a) the execution cannot be recalled; and (b) on the fulfilment of the condition, the execution takes effect— (i) from the time of execution; or (ii) if it appears from the instrument or the condition of execution that the execution is intended to take effect from some later time—from that later time. (4) Where an instrument is conditionally executed and the fulfilment of the condition is within the control of the party by whom the instrument was conditionally executed, then— (a) any party to the instrument may, without breach of obligation, recall execution of the instrument at any time prior to the fulfilment of the condition; and (b) on the fulfilment of the condition, the execution (if not previously recalled) takes effect— (i) from the time of fulfilment of the condition; or (ii) if it appears from the instrument or the condition of execution that the execution is intended to take effect from some later time—from that later time. (5) Notwithstanding subsections (3) and (4), where the conditional execution of an instrument is not expressed in the instrument itself, the party by whom the instrument was conditionally executed cannot rely on the condition to defeat the claim of— (a) another party who has acted on the instrument or relied on its execution without actual notice of the condition; or (b) a person claiming under any such party. (6) In any legal proceedings— (a) if the execution of an instrument is proved, the execution will be presumed, in the absence of proof to the contrary, to have been unconditional; and (b) if it appears from an instrument or evidence external to an instrument that the instrument was executed conditionally, it will be presumed, in the absence of proof to the contrary, that the condition of execution has been fulfilled. (7) The common law doctrine of escrow is abolished. 41A—Easements without dominant land to be validly created (1) It is lawful and it is to be taken to have been always lawful for— (a) an easement to be created or operate in favour of— (i) the Crown; or (ii) a public or local authority; or (iii) a body declared under this section, despite the fact that the easement is not appurtenant to any other land; (b) an easement to be made appurtenant or annexed to another easement. (2) The Minister may, by notice in the Gazette, declare a body for the purposes of subsection (1)(a)(iii). (2a) The Minister may, by instrument in writing, delegate the Minister's power under subsection (2) to a person named in the instrument of delegation. 42—Covenants for title (1) 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, a covenant by a person who conveys and is expressed to convey as beneficial owner in the terms set out in clause 1 of Schedule 2 to this Act; (b) in a conveyance of leasehold property for valuable consideration, other than a mortgage, a further covenant by a person who conveys and is expressed to convey as beneficial owner in the terms set out in clause 2 of Schedule 2 to this Act; (c) in a conveyance by way of mortgage a covenant by a person who conveys and is expressed to convey as beneficial owner in the terms set out in clause 3 of Schedule 2 to this Act; (d) in a conveyance by way of mortgage of leasehold property, a further covenant by a person who conveys and is expressed to convey as beneficial owner in the terms set out in clause 4 of Schedule 2 to this Act; (e) in a conveyance by way of settlement, a covenant by a person who conveys and is expressed to convey as settlor in the terms set out in clause 5 of Schedule 2 to this Act; (f) in any conveyance, a covenant by every person who conveys and is expressed to convey as trustee or mortgagee, or as personal representative of a deceased person, or as administrator, committee or other person empowered to act on behalf of a mentally incapacitated person, or under an order of the court, in the terms set out in clause 6 of Schedule 2 to this Act, which covenant shall be deemed to extend to every such person's own acts only, and may be implied in an assent by a personal representative in like manner as in a conveyance by deed. (2) Where in a conveyance it is expressed that by direction of a person expressed to direct as beneficial owner another person conveys, then, for the purposes of this section, the person giving the direction, whether he conveys and is expressed to convey as beneficial owner or not, shall be deemed to convey and to be expressed to convey as beneficial owner the subject-matter so conveyed by his direction; and a covenant on his part shall be implied accordingly. (4) Where in a conveyance a person conveying is not expressed to convey as beneficial owner, or as settlor, or as trustee, or as mortgagee, or as personal representative of a deceased person, or as administrator, committee or other person empowered to act on behalf of a mentally incapacitated person, 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. (5) In this section a conveyance does not include a demise by way of lease at a rent, but does include a charge, and convey has a corresponding meaning. (6) 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. (7) A covenant implied as aforesaid may be varied or extended by a deed or an assent, 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.