Property Law Act 1958

163 Construction of certain dispositions by will to charities 144

Division 8—Married women 145

Married Women 145

167 Abolition of separate examination of, acknowledgment by married women, and of concurrence of husband 145

168 Disclaimer by married woman 146

169 Power for Court to bind interest of married woman 146

170 Acquisitions and dispositions of trust estates by married women 146

Division 8A—Persons who are mentally ill 147

171 Power for Court to settle the beneficial interests of a represented patient 147

Division 9—Voidable dispositions 151

172 Voluntary conveyances to defraud creditors 151

173 Voluntary disposition with intent to defraud 152

174 Subsequent conveyance not to be evidence of intent to defraud 152

175 Acquisitions of reversions at an under value 152

Division 10—Miscellaneous 153

Corporations 153

176 Corporations sole 153

177 Provision for vacancy 153

178 Transactions 153

179 Dissolution of a corporation 154

General 154

180 Protection of legal practitioner and trustees adopting this Part 154

181 Further powers etc. admissible 155

182 Protection of trustees etc. 155

183 Fraudulent concealment of documents and falsification of pedigrees 156

184 Presumption of survivorship in regard to claims to property 157

185 Merger 157

186 Rights of pre-emption capable of release 157

187 Power to direct division of chattels 157

187A Transitional provision—Property (Co‑ownership) Act 2005 158

188 Indemnities against rents 158

189 Enforcement of covenants etc. relating to indemnity against rent 158

Redemption and Apportionment of Rents &c. 159

190 Equitable apportionment of rents and remedies for non‑payment or breach of covenant 159

Contingent Remainders and Uses 163

191 Contingent remainders protected against the premature failure of a preceding estate 163

192 Cases in which contingent remainders capable of taking effect 163

193 Provision for cases of future and contingent uses 164

Easements 164

194 Grants of easements etc. by way of use 164

195 Right not deemed to exist by reason only of enjoyment or presumption of lost grant 165

196 Grant of easement not to be presumed from evidence only of user etc. 165

197 Certain rights of road made appurtenant 165

Notices 166

198 Regulations respecting notices 166

199 Restrictions on constructive notice 167

200 Notice of restrictive covenants and easements 168

Division 11—Jurisdiction and general provisions 168

201 Provisions of Act to apply to incorporeal hereditaments 168

202 Payment into Court 169

205 Orders of Court conclusive 169

206 Forms of deeds 169

207 Application to the Crown 170

Part III—Real estates liable for debts. Effect of judgments. Lis pendens and execution. Protection of purchasers etc. against judgments etc. Lands etc. of accountants to Crown 171

208 Lands etc. liable to satisfy debts 171

209 Executions in order to bind land to be registered 173

210 Executions after five years to be re-registered 174

211 Provision for re-registration explained 175

212 Executions as between parties not to be affected 175

213 Purchasers not to be affected by any lis pendens unless suit duly registered 175

214 Recognisances entered into not to affect purchasers unless duly registered as directed by this Act 176

215 Crown to re-register 177

216 Quietus to debtors or accountants to the Crown to be registered 178

217 Discharge of the estates of debtors or accountants to the Crown 178

218 Discharge of part of the estate of a debtor or accountant to the Crown not to affect claim of the Crown on other lands liable 179

219 Execution by fieri facias etc. 179

220 Sheriff may execute debtor's powers 181

Part IV—Co-owned land and goods 182

Division 1—Preliminary 182

221 Application of Part to land 182

222 Definitions 182

223 Other forms of severance not affected 183

224 Security interests not affected 183

Division 2—Sale and division 184

225 Application for order for sale or division of co‑owned land or goods 184

226 Who are parties to a proceeding? 184

227 Adjournment of hearings—spouses or domestic partners 185

228 What can VCAT order? 185

229 Sale and division of proceeds to be preferred 186

230 Order varying entitlements to land or goods 186

231 VCAT may order appointment of trustees 187

232 Other matters in VCAT orders 188

233 Orders as to compensation and accounting 189

Division 3—Accounting 191

234 Application for order for accounting 191

234A Who are parties to a proceeding? 191

234B What can VCAT order? 191

Division 4—Jurisdiction 192

234C Jurisdiction 192

234D Powers of courts 193

234E More appropriate forum 193

234F Appeals on questions of law not affected 193

234G Supreme Court—limitation of jurisdiction 193

Division 5—General 194

234H Regulations 194

234I Transitional provision—Property (Co‑ownership) Act 2005 194

Part V—Inheritance 195

235 Definitions 195

236 Last owner to be considered purchaser 196

237 Heir entitled under will acquires land by devise and assurance creates estate by purchase 197

238 When heirs take by purchase under limitations to the heirs or their ancestor 197

239 Brothers or sisters shall trace descent through parent 198

240 Lineal ancestor may be heir in preference to collateral persons claiming through him 198

241 The male line to be preferred 198

242 The mother of more remote male ancestor to be preferred to the mother of the less remote male ancestor 199

243 Failure of male maternal ancestor 199

244 Half blood if on the part of a male ancestor to inherit after the whole blood of the same degree if on the part of a female ancestor after her 199

245 After the death of a person attainted his descendants may inherit 200

246 Extent of Part 200

247 Limitations made before the passing of the Real Property Statute 1864 200

Part VI—Estates tail 201

248 Definitions 201

249 Tenancies in tail to pass the fee-simple 202

250 Where successive life estates are given to parent and child with estate tail to grandchild parent and child may bar the entail as if the estate tail were given to the child 202

251 Power to tenants in tail in possession to dispose of land by specific devise or bequest 203

252 Power to dispose of lands entailed saving the rights of certain persons 204

253 Acknowledgments of deeds 205

254 Certificate to be evidence of acknowledgment 205

255 Extent of the estate created by a tenant in tail by way of mortgage or for any other limited purpose 205

256 A voidable estate by a tenant in tail in favour of a purchaser 206

257 Tenant in tail to make a disposition by deed as if seised in fee but not by contract 207

258 Assurance by a tenant in tail to be inoperative unless acknowledged 207

259 Equity excluded from giving any effect to dispositions by tenants in tail which in courts of law would not be effectual 208

260 Trustee in bankruptcy in the case of the bankruptcy of a tenant in tail by deed to dispose of the land of the bankrupt to a purchaser 208

261 A voidable estate created in favour of a purchaser by a tenant in tail becoming bankrupt confirmed by the disposition of the trustee 209

262 Acts of a bankrupt tenant in tail void against any disposition under this Act by the trustee 209

263 The disposition by the trustee of the land of a bankrupt tenant in tail to have operation in the event of his death 210

264 A bankrupt tenant in tail to retain his powers of disposition 210

265 Trustee to recover rents of the lands of a bankrupt of which the trustee has power to make disposition 210

266 Application of previous clauses to lands to be sold where the purchase money is subject to be invested in the purchase of lands to be entailed 211

Part VII—Survey boundaries 213

267 Definition 213

268 Crown survey boundaries as marked on the ground to be deemed the true boundaries 213

269 Crown grant or lease to be deemed to convey the land within the survey boundaries 213

270 As to aliquot parts of Crown sections having excess of area 214

271 How Crown survey boundaries may be proved in the absence of survey marks 214

272 Margin of error allowed in description of boundaries 215

273 Provisions of Part to apply to land under general law and Transfer of Land Act 1958 216

Part VIII—Recovery of property etc. on determination of a life or lives 217

274 Person wrongfully holding over after the determination of a life to be liable in damages 217

Schedules 220

First Schedule 220

Third Schedule—General conditions of sale of land 221

Fourth Schedule—Implied covenants 229

Fifth Schedule—Form of transfer of mortgage 236

Sixth Schedule—Form of receipt under seal on discharge of a mortgage 237

Seventh Schedule—Statutory mortgage 238

Eighth Schedule—Short forms of deeds 241

Ninth Schedule 243

Endnotes 244

1 General information 244

2 Table of Amendments 246

3 Explanatory details 256

Version No. 142

Property Law Act 1958

No. 6344 of 1958

Version incorporating amendments as at

An Act to consolidate the Law relating to Conveyancing and the Law of Property.

BE IT ENACTED by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say):

S. 1 amended by Nos 8181 s. 2(1)(Sch. item 156), 59/1986 s. 143(2), 59/1986 s. 143(2), 57/1989 s. 3(Sch. item 166.1).

1 Short title and commencement

This Act may be cited as the Property Law Act 1958 and shall come into operation on a day to be fixed by proclamation of the Governor in Council published in the Government Gazette.

2 Repeals and savings

(1) The Acts mentioned in the First Schedule to the extent thereby expressed to be repealed are hereby repealed accordingly.

(2) Except as in this Act expressly or by necessary implication provided—

(a) all persons things and circumstances appointed or created by or under the repealed Acts or existing or continuing under any of such Acts immediately before the commencement of this Act shall under and subject to this Act continue to have the same status operation and effect as they respectively would have had if such Acts had not been so repealed;

(b) in particular and without affecting the generality of the foregoing paragraph such repeal shall not disturb the continuity of status operation or effect of any dealing transaction title rule regulation order instrument deposit registration delegation acknowledgment undertaking release covenant proceeding direction trust licence application appointment declaration consent certificate contract agreement notice liability privilege power or right made effected issued granted given presented passed fixed incurred accrued or acquired or existing or continuing by or under any of such Acts before the commencement of this Act.

(3) Where in any provision of this Act the expression "after the commencement of this Act" (otherwise than in the expression "before or after the commencement of this Act") occurs and the same expression occurs in the corresponding provision of the Property Law Act 1928 the said expression shall (where the circumstances are applicable) be construed so as to include a reference to the commencement of the Property Law Act 1928[1].

S. 3 amended by No. 16/1986 s. 19(a), substituted by No. 18/2005 s. 18(Sch. 1 item 87).

3 Definitions

In this Act—

Court means—

(a) in relation to property or an estate or interest in property the value of which does not exceed the jurisdictional limit of the County Court, the Supreme Court or the County Court;

(b) in any other case, the Supreme Court;

S. 3 def. of legal practitioner amended by No. 17/2014 s. 160(Sch. 2 item 76).

legal practitioner means an Australian legal practitioner.

Pt 1
(Heading) amended by No. 10/1994 s. 6(1)(a).

Part I—Registration of conveyances etc. affecting land other than land under the Transfer of Land Act. Deposit of documents[2]

S. 4 amended by No. 10/1994 s. 6(1)(b)(i)(ii), repealed by No. 85/1998 s. 22(1).

No. 3754 s. 5.

5 Registrar-General

S. 5(1) repealed by No. 85/1998 s. 22(1).

S. 5(2) substituted by No. 7716 s. 2, amended by No. 9427 s. 3(Sch. 2 item 11), substituted by No. 46/1998 s. 7(Sch. 1), amended by No. 108/2004 s. 117(1) (Sch. 3 item 164).

(2) A Registrar-General and any Deputy Registrars-General that are necessary for the purposes of this Act may be employed under Part 3 of the Public Administration Act 2004.

S. 5(3) inserted by No. 7716 s. 2, repealed by No. 85/1998 s. 22(1).

S. 5(4) inserted by No. 7716 s. 2.

(4) All acts and things by this or any other Act required or authorized to be done by the Registrar‑General may be done by any Deputy Registrar-General and every act and thing done by any Deputy Registrar-General shall be as valid and effectual as if the same had been done by the Registrar-General.

No. 3754 s. 6.

S. 6 amended by No. 85/1998 s. 22(2) (ILA s. 39B(1)).

6 Registration of deeds, conveyances etc.

(1) All deeds conveyances and other instruments in writing (except leases for less than three years) of or relating to or in any manner affecting any lands tenements or hereditaments situated lying and being in Victoria may be entered and registered in the office of the Registrar-General in the manner hereinafter directed; and all such deeds conveyances and other instruments in writing as aforesaid, if made and executed bona fide and for a valuable consideration and registered in conformity with the provisions of this Act, shall have and be allowed priority over every other deed conveyance or other instrument in writing (that is to say)—The deed conveyance or other instrument in writing first registered in the office of the Registrar-General, if the same be registered in conformity with this Act, shall have priority in respect of all lands tenements or hereditaments conveyed or affected by such deed conveyance or other instrument in writing over every other deed conveyance or other instrument in writing whatsoever and howsoever conveying or affecting the same lands tenements or hereditaments; and the deed conveyance or other instrument in writing next registered as aforesaid mutatis mutandis shall have priority over every other deed conveyance or instrument in writing as aforesaid; and so on according to the priority of the time of registering such deed conveyance or instrument in writing as aforesaid.

S. 6(2) inserted by No. 85/1998 s. 22(2).

(2) Despite subsection (1), no deed conveyance or other instrument may be registered in the office of the Registrar-General under that subsection on and from the commencement of section 6 of the Transfer of Land (Single Register) Act 1998.

S. 7 amended by Nos 9043 s. 2(a)(i)(ii), 110/1986 s. 140(2), 57/1989 s. 3(Sch. items 166.2, 166.3(a)(b)), 35/1996 s. 453(Sch. 1 item 68.1), 23/1998 s. 8(1), repealed by No. 85/1998 s. 22(1).

S. 8 amended by No. 8181 s. 2(1)(Sch. item 157), repealed by No. 85/1998 s. 22(1).

Ss 9, 10 repealed by No. 85/1998 s. 22(1).

S. 11 amended by No. 57/1989 s. 3(Sch. item 166.4
(a)(b)), repealed by No. 85/1998 s. 22(1).

S. 12 amended by No. 9043 s. 2(b), repealed by No. 85/1998 s. 22(1).

Nos 3754 s. 13, 6012 s. 8(1)(a), 6123 s. 3(e).

S. 13 amended by No. 9019 s. 2(1)(Sch. item 192).

13 Fees to be paid on registration

S. 13(a) amended by Nos 9043 s. 3, 128/1986 s. 14(1).

(a) There shall be paid to the Registrar-General in respect of matters under this Act such fees as are prescribed by regulations under this section.

S. 13(b) amended by Nos 9043 s. 3, 128/1986 s. 14(1).

(b) The Governor in Council may make regulations for or with respect to prescribing fees to be paid to the Registrar-General in respect of any matter under this Act.

S. 13(c) substituted by No. 128/1986 s. 14(2), repealed by No. 85/1998 s. 22(1).

S. 14 substituted by No. 7716 s. 3, amended by Nos 55/1987 s. 57(3)(Sch. 5 item 42), 80/1988 s. 55(7)(a)(b), 45/1994 s. 42(Sch. item 7), repealed by No. 10/1994 s. 6(1)(c).

No. 3754 s. 15.

15 Deeds etc. may be deposited with Registrar-General

Any person who now has or shall hereafter have the lawful custody of any deeds or documents relating to the title of any real or personal estate may deposit such deeds or documents with the Registrar-General; and from and after such deposit such deeds or documents shall be retained by such registrar. And no action or suit at law or in equity shall be brought or maintained upon any covenant or agreement for the production of the deeds or documents so deposited, or upon any agreement to give or enter into a covenant for the production thereof; and if any such action or suit is commenced, it shall be a sufficient answer thereto that such deeds or documents have been deposited under this enactment.

S. 15A inserted by No. 128/1986 s. 15.

15A Deposited documents

(1) Despite anything to the contrary in section 15 the Registrar-General must on request return to the person who deposited it a deed or document—

(a) that relates to land brought under the operation of the Transfer of Land Act 1958 and that is a subsisting lease mortgage or charge under the general law; or

(b) that relates to land part of which is, and part of which is not, under the operation of the Transfer of Land Act 1958, and—

(i) that is a lease mortgage or charge; or

(ii) that is the last deed that constitutes or the last deeds that together constitute, the fee or equity of redemption.

(2) Before returning a document under this section the Registrar-General must take a copy of the document and retain it with the other deeds and documents deposited under section 15.

S. 15B inserted by No. 128/1986 s. 15.

15B Court may order deposit of documents

(1) On the application of the Registrar of Titles or on the application of a person who under a covenant or agreement may compel another person to produce a document the Supreme Court may by order require a person specified in the order to deposit with the Registrar-General a document specified in the order.

(2) Sections 15 and 15A apply to a document deposited in accordance with an order under subsection (1).

S. 15C inserted by No. 128/1986 s. 15.

15C Person may direct document to be deposited

(1) A person who under a covenant or agreement may compel another person to produce a document may direct that other person to deposit the document with the Registrar-General and that other person must comply with the direction.

(2) Sections 15 and 15A apply to a document deposited under this section.

S. 15D inserted by No. 128/1986 s. 15.

15D Deposit of document without instructions

A person who has lawful custody of a document may deposit it with the Registrar-General under section 15 even though the person has not been instructed or authorised to deposit the document by the person on whose behalf the document is held.

No. 3754 s. 15.

16 Deeds etc. deposited may be inspected etc.

Subject to such regulations as may be imposed and to the payment of such sums as may be made payable in that behalf by the Governor in Council, any person may inspect and make copies of and extracts from deeds and documents deposited as aforesaid[3].

No. 3754 s. 17.

S. 17 (Heading) inserted by No. 6/2018 s. 68(Sch. 2 item 99.1).

S. 17 amended by No. 6/2018 s. 68(Sch. 2 item 99.2).

17 False oaths and affirmations made punishable

Every person who at any time wilfully forswears himself or states anything contrary to the truth in any oath or affirmation taken under the authority of this Part shall be liable to the penalties of perjury.

Part II—The general law of property and conveyancing

Nos 3754 s. 18, 4654 s. 3.

18 Definitions

(1) In this Part unless inconsistent with the context or subject-matter—

bankruptcy includes insolvency and liquidation by arrangement and also any other act or proceeding in law having under any law for the time being in force effects or results similar to those of bankruptcy[4];

building purposes includes the erecting and 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 a mortgage, charge, lease, assent, vesting declaration,[5] disclaimer, release, surrender, extinguishment and every other assurance of property or of an interest therein by any instrument, except a will; convey has a corresponding meaning;

disposition includes a conveyance and also a devise, bequest, or an appointment of property contained in a will; and dispose of has a corresponding meaning;

income includes rents and profits;

incumbrance includes a legal or equitable mortgage and a trust for securing money, and a lien, and a charge of a portion, annuity, or other capital or annual sum; and incumbrancer has a meaning corresponding with that of incumbrance, and includes every person entitled to the benefit of an incumbrance, or to require payment or discharge thereof;

instrument includes deed and will but does not include a statute, unless the statute creates a settlement;

land includes land of any tenure, and mines and minerals whether or not held apart from the surface, buildings or parts of buildings (whether the division is horizontal, vertical or made in any other way) and other corporeal hereditaments; also a rent and other incorporeal hereditaments,[6] and an easement, right, privilege, or benefit in, over, or derived from the land and also an undivided share in land; and mines and minerals include any strata or seam of minerals or substances in or under any land, and powers of working and getting the same;

limitation includes a trust;

S. 18(1) def. of lunatic repealed by No. 55/1987 s. 57(3)(Sch. 5 item 43).

mining lease means a lease for mining purposes, that is the searching for, winning, working, getting, making merchantable, carrying away, or disposing of mines and minerals, or purposes connected therewith, and includes a grant or licence for mining purposes;

mortgage includes any charge or lien on any property for securing money or money's worth; mortgage money means money or money's worth secured by a mortgage; 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; 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; and right of redemption includes an option to repurchase only if the option in effect creates a right of redemption;

notice includes constructive notice;

personal representative means the executor, original or by representation, or administrator for the time being of a deceased person;

possession includes receipt of rents and profits or the right to receive the same (if any);

property includes any thing in action, and any interest in real or personal property;

purchaser means a purchaser in good faith for valuable consideration and includes a lessee, mortgagee or other person who for valuable consideration acquires an interest in property except that where so expressly provided purchaser means a person only who acquires an interest in or charge on property for money or money's worth; and where the context so requires purchaser includes an intending purchaser; purchase has a meaning corresponding with that of purchaser; and valuable consideration includes marriage but does not include a nominal consideration in money;

registered land means land registered under the Transfer of Land Act 1958; and registrar means Registrar of Titles under that Act;

rent includes a rent service or a rentcharge, or other rent toll, duty, royalty, or annual or periodical payment in money or money's worth, reserved or issuing out of or charged upon land, but does not include mortgage interest; rentcharge includes a fee farm rent; fine includes a premium or foregift and any payment consideration, or benefit in the nature of a fine, premium or foregift; lessor includes an under-lessor and a person deriving title under a lessor or under-lessor; and lessee includes an under-lessee and a person deriving title under a lessee or under‑lessee, and lease includes an under‑lease or other tenancy;

sale means a sale properly so called;

securities include stocks, funds and shares;

S. 18 def. of tenant for life, statutory owner, settled land, settlement, capital money, term of years absolute and trustees of the settlement amended by No. 29/2011 s. 3(Sch. 1 item 74).

tenant for life*,* statutory owner*,* settled land*,* settlement*,* capital money*,* term of years absolute and trustees of the settlement have the same meaning as in the Settled Land Act 1958;

trustee company means a trustee company under the Trustee Companies Act 1958;

trust for sale, in relation to land, means an immediate binding trust for sale, whether or not exercisable at the request or with the consent of any person, and with or without a power at discretion to postpone the sale; trustees for sale means the persons (including a personal representative) holding land on trust for sale; and power to postpone a sale means power to postpone in the exercise of a discretion;

will includes codicil and every other testamentary disposition.

(2) Subject to the savings mentioned in section two of this Act this Part shall except where otherwise expressly provided apply to and in respect of instruments whether made or coming into operation before or after the commencement of this Act.

Cf. [1289–90] 18 Edward I. (Quia Emptores) c. 1.

S. 18A inserted by No. 9407 s. 6(a).

18A Land may be assured in fee simple

Land held of the Crown in fee simple may be assured in fee simple without licence and without fine and the person taking the assurance shall hold the land of the Crown in the same manner as the land was held before the assurance took effect.

Division 1—General principles

Subdivision 1—Miscellaneous

Cf. [1535–6] 27 Henry VIII.
c. X. ss 1, 2, 3, 8 (The Statute of Uses).

S. 19A inserted by No. 9407 s. 6(b).

19A Interests in land under the Statute of Uses

(1) Interests in land which under the Statute of Uses could before the commencement of this section have been created as legal interests shall after the commencement of this section be capable of being created as equitable interests.

(2) Notwithstanding subsection (1) an equitable interest in land shall after the commencement of this section only be capable of being validly created in any case in which an equivalent equitable interest in property real or personal could have been validly created before such commencement.

(3) In a voluntary conveyance executed after the commencement of this section, a resulting trust for the grantor shall not be implied merely by reason that the property is not expressed to be conveyed for the use or benefit of the grantee.

(4) Subsection (3) does not limit or affect the operation of any principle or rule of equity relating to the implication of resulting trusts.

No. 3754 s. 19.

19 Power to dispose of all rights and interests in land

(1) All rights and interests in land may be disposed of, including—

(a) a contingent, executory or future interest in any land, or a possibility coupled with an interest in any land, whether or not the object of the gift or limitation of such interest or possibility be ascertained;

(b) a right of entry, into or upon land whether immediate or future, and whether vested or contingent—

but no such disposition shall defeat or enlarge an estate tail.

(2) All rights of entry affecting a legal estate which are exercisable on condition broken or for any other reason may, after the commencement of this Act, be made exercisable by any person and the persons deriving title under him, but, in regard to an estate in fee-simple (not being a rentcharge held for a legal estate) only within the period authorized by the rule relating to perpetuities.

No. 3754 s. 20.

20 Satisfied terms, whether created out of freehold or leasehold land, to cease

(1) Where the purposes of a term of years, created or limited at any time out of freehold land, become 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 as respects part only 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.

No. 3754 s. 21.

21 Husband and wife to be counted as two persons

A husband and wife shall, for all purposes of acquisition of any interest in property, under a disposition made or coming into operation after the twenty-eighth day of September One thousand nine hundred and fourteen, be treated as two persons.

No. 3754 s. 22.

22 Vesting orders etc. of legal estates operating as conveyances

S. 22(1) repealed by No. 85/1998 s. 23.

(2) The provisions of the Trustee Act 1958 relating to vesting orders and orders appointing a person to convey shall apply to all vesting orders authorized to be made by this Division.

No. 3754 s. 23.

23 Abstract of title to legal estates

(1) Where title is shown to a legal estate in land, it shall be deemed not necessary or proper to include in the abstract of title an instrument relating only to interests or powers which will be overreached by the conveyance of the estate to which title is being shown; but nothing in this Division shall affect the liability of any person to disclose an equitable interest or power which will not be so overreached, or to furnish an abstract of any instrument creating or affecting the same.

S. 23(2) amended by No. 35/1996 s. 453(Sch. 1 item 68.2).

(2) A legal practitioner delivering an abstract framed in accordance with this Division shall not incur any liability on account of an omission to include therein an instrument which, under this section, is to be deemed not necessary or proper to be included, nor shall any liability be implied by reason of the inclusion of any such instrument.

No. 3754 s. 24.

24 Effect of possession of documents

This Part 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.

No. 3754 s. 25.

25 Interests of persons in possession

Nothing in this Division shall 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.

No. 3754 s. 26.

26 Presumption that parties are of full age

The persons expressed to be parties to any conveyance shall, until the contrary is proved, be presumed to be of full age at the date thereof.

No. 3754 s. 27.

S. 27 amended by No. 25/2023 s. 7(Sch. 1 item 20.1).

27 Alien friends may hold etc. real and personal property

Notwithstanding any law or usage to the contrary every alien friend resident in Victoria may take by representation, acquire and hold either by grant from the Crown or otherwise and may convey, assign, devise, bequeath or otherwise dispose of every description of property whether real or personal in the same manner as if he was a natural born subject of His Majesty.

No. 3754 s. 28.

28 Power for corporations to hold property as joint tenants

(1) 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, and where a body corporate and an individual or two or more bodies corporate become entitled to any such property in circumstances or by virtue of any instrument which would if the body corporate had been an individual have created a joint tenancy they shall be entitled to the property as joint tenants:

Provided that the acquisition and holding of property by a body corporate in joint tenancy shall be subject to the like conditions and restrictions as attach to the acquisition and holding of property by a body corporate in severalty.

(2) Where a body corporate is joint tenant of any property then on its dissolution the property shall devolve on the other joint tenant.

(3) This section shall apply in all cases of the acquisition or holding of property on or after the eighth day of August One thousand nine hundred and two.

S. 28A inserted by No. 6814 s. 2, amended by No. 7264 s. 2(1), repealed by No. 9075 s. 5(2), new s. 28A inserted by No. 23/1998 s. 4.

28A Liability of co-owner to account

(1) A co-owner is liable, in respect of the receipt by him or her of more than his or her just or proportionate share according to his or her interest in the property, to account to any other co-owner of the property.

(2) In this section, co-owner means a joint tenant, whether at law or in equity, or a tenant in common, whether at law or in equity, of any property.

S. 28B inserted by No. 7264 s. 2(2), amended by No. 9075 s. 5(1).

28B Certain contracts with minors to be valid

S. 28B(1) amended by Nos 9427 s. 5(Sch. 4 item 9), 57/1989 s. 3(Sch. item 166.5(a)).

(1) Notwithstanding anything to the contrary in section 49 of the Supreme Court Act 1986 or in any rule of common law or equity the following contracts, whether entered into before or after the commencement of the Property Law (Loans to Minors) Act 1965 shall be as valid and binding on a minor for all purposes as if the minor were of full age at the time he entered into the contract, namely—

S. 28B(1)(a) amended by No. 9427 s. 5(Sch. 4 item 9).

(a) any contract at any time entered into by a minor member—

S. 28B(1)(a)(i) amended by Nos 9427 s. 6(1)(Sch. 5 item 145), 57/1989 s. 3(Sch. item 166.5(b)).

(i) of a building society registered under the Building Societies Act 1986 or any corresponding previous enactment;

S. 28B(1)(a)(ii) amended by No. 57/1989 s. 3(Sch. item 166.5(c)), substituted by No. 84/1996 s. 467(Sch. 6 item 11.1), amended by No. 9/2013 s. 42(Sch. 2 item 15).

(ii) of a co-operative registered under the Co‑operatives National Law (Victoria) or any corresponding previous enactment;

(iii) of a co-operative housing society registered under the Co-operative Housing Societies Act 1958 or any corresponding previous enactment; and

(iv) of any industrial and provident society registered under the Industrial and Provident Societies Act 1958 or any corresponding previous enactment—

for the repayment of moneys lent or advanced or to be lent or advanced to the minor by any such society;

S. 28B(1)(aa) inserted by No. 7376 s. 2, amended by No. 9427 s. 5(Sch. 4 item 9).

(aa) any contract at any time entered into by a minor—

S. 28B(1)(aa)(i) amended by Nos 9427 s. 6(1)(Sch. 5 item 145), 57/1989 s. 3(Sch. item 166.5(d)).

(i) with a building society registered under the Building Societies Act 1986 or any corresponding previous enactment; or

(ii) with an industrial and provident society registered under the Industrial and Provident Societies Act 1958 or any corresponding previous enactment—

for the repayment of moneys lent or advanced or to be lent or advanced to the minor by any such society;

S. 28B(1)
(b)–(e) repealed by No. 9075 s. 5(2).

S. 28B(2) amended by Nos 9075 s. 5(1)(2), 9427 s. 5(Sch. 4 item 9).

(2) A minor who has entered into any contract referred to in the last preceding subsection, whether before or after the commencement of the Property Law (Loans to Minors) Act 1965, shall not at any time be entitled on any ground relating to his minority or former minority to avoid any of his obligations under the contract or under any instrument executed by the minor whereby the repayment of any moneys lent or advanced is secured or to repudiate any contract transfer conveyance or assignment relating to any property charged by any such instrument.

S. 28B(3) amended by No. 9427 s. 5(Sch. 4 item 9).

(3) Any instrument executed or purporting to have been executed by a minor by way of security for the repayment of any moneys lent or advanced or to be lent or advanced to the minor in pursuance of a contract of a kind referred to in subsection (1) of this section shall be as valid and effectual for all purposes as if the minor were of full age and capacity at the time he executed the instrument.

(4) For the purposes of this section—

S. 28B(4)(a) amended by No. 9427 s. 5(Sch. 4 item 9).

(a) any reference in this section to a contract entered into by a minor shall be read and construed as including reference to a contract entered into by a minor jointly with some other person or persons (whether of full age or not);

S. 28B(4)(b) amended by No. 9427 s. 5(Sch. 4 item 9).

(b) any reference in this section to moneys lent or advanced or to be lent or advanced to a minor shall be read and construed as including reference to moneys lent or advanced or to be lent or advanced to the order of a minor or to a minor jointly with some other person or persons (whether of full age or not); and

S. 28B(4)(c) amended by No. 9427 s. 5(Sch. 4 item 9).

(c) any reference in this section to an instrument executed by a minor shall be read and construed as including reference to an instrument executed by a minor jointly with some other person or persons (whether of full age or not).

No. 3754 s. 29.

S. 29 amended by Nos 9075 s. 5(1), 10087 s. 3(1)(Sch. 1 item 189).

29 Receipts by married minors

A married minor shall have power to give valid receipts for all income (including statutory accumulations of income made during the minority) to which the minor may be entitled in like manner as if the minor were of full age[7].

No. 3754 s. 30.

30 Conveyances on behalf of patients

S. 30(1) amended by Nos 59/1986 s. 143(2), 52/1998 s. 311(Sch. 1 item 78), 26/2014 s. 455(Sch. item 23.1), 13/2019 s. 221(Sch. 1 item 41.1), 39/2022 s. 854.

(1) Where a legal estate in land (whether settled or not) is vested in a patient within the meaning of the Mental Health and Wellbeing Act 2022 for whom an administrator is appointed in an administration order made under the Guardianship and Administration Act 2019, either solely or jointly with any other person or persons, the administrator shall, under an order of the Court, or under any statutory power, make or concur in making all requisite dispositions for conveying or creating a legal estate in the name and on behalf of that patient.

S. 30(2) amended by Nos 59/1986 s. 143(2), 52/1998 s. 311(Sch. 1 item 78), 26/2014 s. 455(Sch. item 23.1), 13/2019 s. 221(Sch. 1 item 41.2), 39/2022 s. 854.

(2) If land held on trust for sale is vested in a patient within the meaning of the Mental Health and Wellbeing Act 2022 for whom a guardian is appointed under the Guardianship and Administration Act 2019 either solely or jointly with any other person or persons, a new trustee shall be appointed in his place, or he shall be otherwise discharged from the trust, before the legal estate is dealt with under the trust for sale or under the powers vested in the trustees for sale.

Subdivision 2—Dispositions on trust for sale

No. 3754 s. 31.

31 Duration of trusts for sale

Where land has, either before or after the commencement of this Act, become subject to an express or implied trust for sale, such trust shall, so far as regards the safety and protection of any purchaser thereunder, be deemed to be subsisting until the land has been conveyed to or under the direction of the persons interested in the proceeds of sale.

This section shall apply to sales whether made before or after the commencement of this Act, but operates without prejudice to an order of any court restraining a sale.

No. 3754 s. 32.

32 Power to postpone sale

(1) A power to postpone sale shall, in the case of every trust for sale of land, be implied unless a contrary intention appears[8].

(2) Where there is a power to postpone the sale, then (subject to any express direction to the contrary in the instrument, if any, creating the trust for sale) the trustees for sale shall not be liable in any way for postponing the sale, in the exercise of their discretion, for any indefinite period; nor shall a purchaser of a legal estate be concerned in any case with any directions respecting the postponement of a sale.

(3) The foregoing provisions of this section shall apply whether the trust for sale is created before or after the commencement or by virtue of this Part[9].

(4) Where a disposition or settlement coming into operation after the commencement of this Act contains a trust either to retain or sell land the same shall be construed as a trust to sell the land with power to postpone the sale.

No. 3754 s. 33.

33 Consents to the execution of a trust for sale

(1) If the consent of more than two persons is by the disposition made requisite to the execution of a trust for sale of land, then, in favour of a purchaser, the consent of any two of such persons to the execution of the trust or to the exercise of any statutory or other powers vested in the trustees for sale shall be deemed sufficient.

S. 33(2) amended by No. 10087 s. 3(1)(Sch. 1 item 190).

(2) Where the person whose consent to the execution of any such trust or power is expressed to be required in a disposition is not sui juris or becomes subject to disability, his consent shall not, in favour of a purchaser, be deemed to be requisite to the execution of the trust or the exercise of the power; but the trustees shall, in any such case, obtain the separate consent of the parent or testamentary or other guardian of a minor or of the committee of a lunatic.

(3) This section shall apply whether the trust for sale is created before or after the commencement of this Act or by virtue of this Part[10].

No. 3754 s. 34.

34 Purchaser not to be concerned with the trusts of proceeds of sale

A purchaser of a legal estate from trustees for sale shall not be concerned with the trusts affecting the proceeds of sale of land subject to a trust for sale or affecting the rents and profits of the land until sale, whether or not those trusts are declared by the same instrument by which the trust for sale is created.

No. 3754 s. 35.

35 Powers conferred on trustees for sale

(1) Trustees for sale shall, in relation to land and to the proceeds of sale, have all the powers of a tenant for life and the trustees of a settlement under the Settled Land Act 1958, including in relation to the land the powers of management conferred by that Act during a minority,[11] and (subject to any express trust to the contrary) all capital money arising under the said powers shall, unless paid or applied for any purpose authorized by the Settled Land Act 1958,[12] be applicable in the same manner as if the money represented proceeds of sale arising under the trust for sale.

All land acquired under this subsection shall be conveyed to the trustees on trust for sale.

The powers conferred by this subsection shall be exercised with such consents (if any) as would have been required on a sale under the trust for sale, and when exercised shall operate to overreach any equitable interests or powers which attach to the net proceeds of sale.

(2) Subject to any direction to the contrary in the disposition on trust for sale or in the settlement of the proceeds of sale, the net rents and profits of the land until sale, after keeping down costs of repairs and insurance and other outgoings shall be paid or applied, except so far as any part thereof may be liable to be set aside as capital money under the Settled Land Act 1958,[13] in like manner as the income of investments representing the purchase money would be payable or applicable if a sale had been made and the proceeds had been duly invested.

(3) Where the net proceeds of sale have under the trusts affecting the same become absolutely vested in persons of full age in undivided shares (whether or not such shares may be subject to a derivative trust) the trustees for sale may, with the consent of the persons (if any) of full age, not being annuitants, interested in possession in the net rents and profits of the land until sale—

(a) partition the land remaining unsold or any part thereof; and

(b) provide (by way of mortgage or otherwise) for the payment of any equality money—

and, upon such partition being arranged, the trustees for sale shall give effect thereto by conveying the land so partitioned in severalty (subject or not to any legal mortgage created for raising equality money) to persons of full age in accordance with the rights of the persons interested under the partition, but a purchaser shall not be concerned to see or inquire whether any such consent as aforesaid has been given:

Provided that—

(i) if a share in the net proceeds belongs to a lunatic the consent of his committee shall be sufficient to protect the trustees for sale;

(ii) if a share in the net proceeds is affected by an incumbrance the trustees for sale may either give effect thereto or provide for the discharge thereof by means of the property allotted in respect of such share, as they may consider expedient.

S. 35(4) amended by No. 10087 s. 3(1)(Sch. 1 item 191).

(4) If a share in the net proceeds is absolutely vested in a minor, the trustees for sale may act on his behalf and retain land (to be held on trust for sale) or other property to represent his share, but in other respects the foregoing power shall apply as if the minor had been of full age.

(5) This section shall apply to dispositions on trust for sale coming into operation either before or after the commencement or by virtue of this Part[14].

No. 3754 s. 36.

36 Delegation of powers of management by trustees for sale[[15]](#endnote-16)

(1) The powers of and incidental to leasing, accepting surrenders of leases and management, conferred on trustees for sale whether by this Part or otherwise, may, until sale of the land, be revocably delegated from time to time, by writing, signed by them, to any person of full age (not being merely an annuitant) for the time being beneficially entitled in possession to the net rents and profits of the land during his life or for any less period; and in favour of a lessee such writing shall, unless the contrary appears, be sufficient evidence that the person named therein is a person to whom the powers may be delegated, and the production of such writing shall, unless the contrary appears, be sufficient evidence that the delegation has not been revoked.

(2) Any power so delegated shall be exercised only in the names and on behalf of the trustees delegating the power.

(3) The persons delegating any power under this section shall not, in relation to the exercise or purported exercise of the power, be liable for the acts or defaults of the person to whom the power is delegated, but that person shall, in relation to the exercise of the power by him, be deemed to be in the position and to have the duties and liabilities of a trustee.

(4) Where, at the commencement of this Act, an order made under section one hundred and thirty-six of the Settled Estates and Settled Land Act 1915 or any corresponding previous enactment, is in force, the person on whom any power is thereby conferred shall, while the order remains in force, exercise such power in the names and on behalf of the trustees for sale in like manner as if the power had been delegated to him under this section.

No. 3754 s. 37.

37 Powers of Court where trustees for sale refuse to exercise powers

If the trustees for sale refuse to sell or to exercise any of the powers conferred by either of the last two preceding sections, or any requisite consent cannot be obtained, any person interested may apply to the Court for a vesting or other order for giving effect to the proposed transaction or for an order directing the trustees for sale to give effect thereto, and the Court may make such order as it thinks fit.

No. 3754 s. 38.

38 Trust for sale of mortgaged property where right of redemption is barred

(1) Where any property, vested in trustees by way of security, becomes, by virtue of the statutes of limitation, or of an order for foreclosure or otherwise, discharged from the right of redemption,[16] it shall be held by them on trust for sale.

(2) The net proceeds of sale, after payment of costs and expenses, shall be applied in like manner as the mortgage debt, if received, would have been applicable, and the income of the property until sale shall be applied in like manner as the interest, if received, would have been applicable; but this subsection shall operate without prejudice to any rule of law relating to the apportionment of capital and income between tenant for life and remainderman.

(3) This section shall not affect the right of any person to require that, instead of a sale, the property shall be conveyed to him or in accordance with his directions.

(4) Where the mortgage money is capital money for the purposes of the Settled Land Act 1958 the trustees shall if the tenant for life or statutory owner so requires instead of selling any land forming the whole or part of such property make such conveyance or execute such declaration of trust of the same as may be required for giving effect to the directions contained in section eighty‑two of the said Act and as if the land had been acquired by purchase under that section.

(5) This section shall apply whether the right of redemption was discharged before or after the first day of January One thousand nine hundred and thirteen, but shall have effect without prejudice to any dealings or arrangements made before that date.

No. 3754 s. 39.

39 Implied trust for sale in personalty settlements

(1) Where a settlement of personal property or of land held upon trust for sale contains a power to invest money in the purchase of land, such land shall, unless the settlement otherwise provides, be held by the trustees on trust for sale; and the net rents and profits until sale, after keeping down costs of repairs and insurance and other outgoings shall be paid or applied in like manner as the income of investments representing the purchase money would be payable or applicable if a sale had been made and the proceeds had been duly invested in personal estate.

(2) This section shall apply to settlements (including wills) coming into operation after the thirty-first day of December One thousand nine hundred and thirteen, and shall not apply to capital money arising under the Settled Land Act 1958 or any corresponding previous enactment or money liable to be treated as such.

No. 3754 s. 40.

40 Application of this Division to personal representatives

The provisions of this Division relating to trustees for sale apply to personal representatives holding on trust for sale, but without prejudice to their rights and powers for purposes of administration.

Division 2—Contracts, conveyances and other instruments

Contracts

No. 3754 s. 41.

41 Stipulations in a contract

Stipulations in a contract, as to time or otherwise, which according to rules of equity are not deemed to be or to have become of the essence of the contract, shall be construed and have effect at law in accordance with the same rules.

No. 3754 s. 42.

42 Provisions as to contracts

(1) A stipulation that a purchaser of a legal estate in land shall accept a title made with the concurrence of any person entitled to an equitable interest shall be void, if a title can be made discharged from the equitable interest without such concurrence—

(a) under a trust for sale; or

(b) under this Act, or the Settled Land Act 1958, or any other Act.

(2) A stipulation that a purchaser of a legal estate in land shall pay or contribute towards the costs of or incidental to obtaining a vesting order, or the appointment of trustees of a settlement, or the appointment of trustees in relation to a trust for sale, shall be void.

S. 42(3) amended by Nos 35/1996 s. 453(Sch. 1 item 68.2), 23/2016 s. 36(1).

(3) No contract of sale relating to land shall contain a clause or condition stipulating for the payment by the purchaser to the vendor or to the legal practitioner or conveyancer of the vendor of any costs and expenses except—

(a) costs and expenses incurred by the vendor by reason of default on the part of the purchaser in respect of the observance or performance of any of the terms or conditions of the contract;

(b) such costs and expenses as are payable by the purchaser pursuant to—

(i) conditions of sale of land not under the operation of the Transfer of Land Act 1958 which conditions are adopted pursuant to section forty-six of this Act; or

(ii) conditions to the like effect of sale of such land; and

(c) costs and expenses of perusal and obtaining the execution and registration of any conveyance transfer or other assurance of any land being part only of the land which is the subject-matter of such contract of sale.

(4) A stipulation contained in any contract for the sale or exchange of land made after the commencement of this Act, to the effect that an outstanding legal estate is to be traced or got in by or at the expense of a purchaser, or that no objection is to be taken on account of an outstanding legal estate, shall be void.

(5) Where a purchaser has power to acquire land compulsorily and a contract, whether by virtue of a notice to treat or otherwise, is subsisting under which title can be made without payment of the compensation money into court, title shall be made in that way unless the purchaser, to avoid expense or delay or for any special reason, considers it expedient that the money should be paid into court.

(6) A vendor shall not have any power to rescind a contract by reason only of the enforcement of any right under this section.

S. 42(7) inserted by No 23/2016 s. 36(2).

(7) In this section—

conveyancer means a licensee under the Conveyancers Act 2006.

No. 3754 s. 43.

43 Application of section 42

The last preceding section shall apply only in favour of a purchaser for money or money's worth.

No. 3754 s. 44.

44 Statutory commencements of title

(1) Thirty years shall be the period of commencement of title which a purchaser of land may require instead of an earlier title commencing with the Crown grant; nevertheless earlier title than thirty years may be required in cases similar to those in which earlier title than forty years might immediately before the commencement of the Property Law Act 1928 be required.

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

(3) 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.

(4) 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.

(5) Where by reason of any of the last three preceding subsections, an intending lessee or assign is not entitled to call for the title to the freehold or to a leasehold reversion, as the case may be, he shall not, where the contract is made after the commencement of this Act, 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.

(6) 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 inquiries in regard to matters prior to the period of commencement of title fixed by this Act, or by any other Act, or by any rule of law, he might have had notice, unless he actually makes such investigation or inquiries.

(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 of Parliament 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 after such commencement.

(9) This section shall apply only if and so far as a contrary intention is not expressed in the contract.

No. 3754 s. 45.

45 Other statutory conditions of sale

(1) A purchaser of any property shall not—

(a) 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 the commencement of the title, even though the same creates a power subsequently exercised by an instrument abstracted in the abstract furnished to the purchaser; or

(b) 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, agreed 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, or otherwise:

Provided that this subsection shall not deprive a purchaser of the right to require the production, or an abstract or copy of—

(i) any power of attorney under which any abstracted document is executed; or

(ii) any document creating or disposing of an interest, power or obligation which is not shown to have ceased or expired, and subject to which any part of the property is disposed of by an abstracted document; or

(iii) any document creating any limitation or trust by reference to which any part of the property is disposed of by an abstracted document.

(2) Where land sold is held by lease (other than an 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.

(3) 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.

(4) On a sale of any property, the following expenses shall be borne by the purchaser where he requires them to be incurred for the purpose of verifying the abstract or any other purpose, that is to say—

(a) the expenses of the production and inspection of all records, proceedings of courts, deeds, wills, probates, letters of administration and other documents, not in possession of the vendor or his mortgagee or trustee, and the expenses of all journeys incidental to such production or inspection; and

(b) the expenses of searching for, procuring, making, verifying and producing all certificates, declarations, evidences and information not in the possession of the vendor or his mortgagee or trustee, and all attested, stamped, office or other copies or abstracts of, or extracts from, any records or other documents aforesaid, not in the possession of the vendor or his mortgagee or trustee—

and where the vendor or his mortgagee or trustee 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.

(5) 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.

(6) Recitals, statements and descriptions of facts, matters and parties contained in deeds, instruments, Acts of Parliament or statutory declarations, twenty years old at the date of the contract, shall, unless and except so far as they are proved to be inaccurate, or to be inconsistent with any statutory record of any dealing, be taken to be sufficient evidence of the truth of such facts, matters and descriptions.

(7) The inability of a vendor to furnish a purchaser with an acknowledgment of his right to production and delivery of copies of documents of title or 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.

(8) Such acknowledgments of the right of production or covenants for production and such undertakings or covenants for safe custody of documents as the purchaser can and does require shall be furnished or made 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.

(9) A vendor shall be entitled to retain documents of title where—

(a) he retains any part of the land to which the documents relate; or

(b) the document is an instrument creating a trust which is still subsisting, or an instrument relating to the appointment or discharge of a trustee of a subsisting trust.

(10) This section shall apply to contracts for sale made before or after the commencement of this Act, and shall apply to contracts for exchange in like manner as to contracts for sale, except that it shall apply only to contracts for exchange made after such commencement:

Provided that this section shall apply subject to any stipulation or contrary intention expressed in the contract.

(11) 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.

No. 3754 s. 46.

46 Adoption of conditions of sale in Third Schedule

On any contract for sale whether by public auction or private contract of land not under the operation of the Transfer of Land Act 1958, the conditions of sale set out in the Third Schedule hereto may be adopted by inserting in the contract the words "The conditions of sale in the Property Law Act 1958 shall apply to this contract," or words having an equivalent meaning, and when so adopted the said conditions shall become and be conditions of such contract, subject nevertheless to any other condition or provision contained in the contract expressly or by necessary implication modifying or excluding any of them.

S. 47 repealed by No. 9858 s. 7(a).

No. 3754 s. 48.

48 Stipulations preventing a purchaser etc. from employing own legal practitioner to be void

S. 48(1) amended by No. 35/1996 s. 453(Sch. 1 item 68.2).

(1) Any stipulation or condition made on the sale of any land or interest in land after the commencement of this Act to the effect that the conveyance or transfer to, or the registration of the title of, the purchaser shall be prepared or carried out at the expense of the purchaser by a legal practitioner appointed by or acting for the vendor, and any stipulation which restricts or might restrict a purchaser in the selection of a legal practitioner to act on his behalf in relation to any land or interest in land agreed to be purchased, shall be void.

(2) Any covenant or stipulation contained in or entered into with reference to any lease or under‑lease made before or after the commencement of this Act—

S. 48(2)(a) amended by No. 35/1996 s. 453(Sch. 1 item 68.2).

(a) whereby the right of preparing, at the expense of a purchaser, any conveyance of the estate or interest of the lessee or under-lessee in the demised premises or in any part thereof, or of otherwise carrying out, at the expense of the purchaser, any dealing with such estate or interest, is expressed to be reserved to or vested in the lessor or under-lessor or his legal practitioner; or

S. 48(2)(b) amended by No. 35/1996 s. 453(Sch. 1 item 68.2).

(b) which in any way restricts the right of the purchaser to have such conveyance carried out on his behalf by a legal practitioner appointed by him—

shall be void.

(3) This section shall not affect the law relating to the preparation of a lease or under-lease or the draft thereof.

(4) In this section lease and under-lease shall include any agreement therefor or other tenancy, and lessee and under-lessee and lessor and under‑lessor shall have corresponding meanings.

No. 3754 s. 49.

49 Applications to the Court by vendor and purchaser

S. 49(1) amended by No. 110/1986 s. 140(2).

(1) A vendor or purchaser of any interest in land, or their representatives respectively, may apply to the Court, 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 Court may make such order upon the application as to the Court may appear just, and may order how and by whom all or any of the costs of and incident to the application are to be borne and paid.

(2) Where the Court refuses to grant specific performance of a contract, or in any action for the return of a deposit, the Court may, if it thinks fit, order the repayment of any deposit.

(3) This section shall apply to a contract for the sale or exchange of any interest in land.

No. 3754 s. 50.

50 Discharge of incumbrances by the Court on sales or exchanges

(1) Where land subject to any incumbrance, whether immediately realizable 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 or exchanges whether made before or after the commencement of this Act, and to incumbrances whether created by statute or otherwise.

Conveyances and other Instruments

No. 3754 s. 51.

51 Lands lie in grant only

(1) All lands and all interests therein shall lie in grant and shall be 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.

No. 3754 s. 52.

52 Conveyances to be by deed

(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.

(2) This section shall not apply to—

(a) assents by a personal representative[17];

(b) disclaimers made in accordance with the provisions of any law relating to bankruptcy or insolvency[18] 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.

No. 3754 s. 53.

53 Instruments required to be in writing

(1) Subject to the provisions hereinafter contained with respect to the creation of interest 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 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;

(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.

(2) This section shall not affect the creation or operation of resulting, implied or constructive trusts.

No. 3754 s. 54.

54 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 authorized 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 foregoing provisions of this Division 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.

No. 3754 s. 55.

55 Savings in regard to sections 53 and 54

Nothing in the last two preceding sections shall—

(a) invalidate dispositions by will; or

(b) affect any interest validly created before the commencement of the Property Law Act 1928; 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.

No. 3754 s. 56.

56 Persons not named as parties may take interest in land etc.

(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.

No. 3754 s. 57.

57 Description of deeds

Any deed, whether or not being an indenture, may be described (at the commencement thereof or otherwise) as a deed simply, or as a conveyance, deed of exchange, settlement, mortgage, charge, transfer of mortgage, appointment, lease or otherwise according to the nature of the transaction intended to be effected.

No. 3754 s. 58.

58 Provisions as to supplemental instruments

Any instrument (whether executed before or after the commencement of this Act) expressed to be supplemental to a previous instrument, shall, as far as may be, be read and have effect as if the supplemental instrument contained a full recital of the previous instrument, but this section shall not of itself operate to give any right to an abstract or production of any such previous instrument, and a purchaser may accept the same evidence that the previous instrument does not affect the title as if it had merely been mentioned in the supplemental instrument.

No. 3754 s. 59.

59 Conditions and certain covenants not implied

(1) An exchange a partition or other conveyance of land made by deed after the first day of June One thousand eight hundred and sixty-four shall not imply any condition in law.

(2) The word "give" or "grant" shall not, in a deed made after the date last aforesaid, imply any covenant in law, save where otherwise provided by statute.

No. 3754 s. 60.

60 Power to dispose of fee-simple by deed without words of inheritance

(1) A disposition of freehold land by deed to any person without words of limitation or any equivalent expression shall pass to the grantee the fee-simple or other the whole interest which the disposer had power to dispose of by deed in such land unless a contrary intention appears in the disposition.

(2) A disposition of freehold land by deed to a grantee to uses without words of limitation or any equivalent expression shall be construed as if the land had been expressed to be disposed of to the grantee in fee-simple to the uses declared.

(3) Under a disposition of freehold land by deed to the use of any person without words of limitation or any equivalent expression the person in whose favour the use is declared shall unless a contrary intention appears in the disposition take the whole estate or interest which under the disposition is taken by the grantee to uses.

(4) A disposition by deed to a corporation to any use shall operate in the same way as if the disposition had been made to a natural person to the same use.

(5) A disposition of freehold land to a corporation sole by his corporate designation without the word "successors" shall pass to the corporation the fee-simple or other the whole interest which the disposer had power to dispose of in such land unless a contrary intention appears in the disposition.

(6) The foregoing provisions of this section shall apply only to conveyances and deeds executed after the thirty-first day of December One thousand nine hundred and eighteen:

Provided that in a deed executed after the thirty‑first day of January One thousand nine hundred and five, it shall be sufficient in the limitation of an estate in fee-simple to use the words "in fee" or "in fee-simple" without the word "heirs" or to use the words "in tail" or "in tail male" or "in tail female" without the words "heirs of the body" or "heirs male of the body" or "heirs female of the body"[19].

No. 3754 s. 61.

61 Definitions of expressions used in deeds and other instruments

In all deeds, contracts, wills, orders and other instruments executed, made or coming into operation after the commencement of this Act, unless the context otherwise requires—

(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.

S. 61A inserted by No. 10096 s. 4(4).

61A Construction of references to repealed Acts

Where an Act or a provision of an Act is repealed and re-enacted (with or without modification) then, unless the contrary intention expressly appears, any reference in any deed, contract, will, order or other instrument to the repealed Act or provision shall be construed as a reference to the re-enacted Act or provision.

No. 3754 s. 62.

62 General words implied in conveyances[[20]](#endnote-21)

(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.

(5) This section shall apply to conveyances made after the thirty-first day of January One thousand nine hundred and five.

No. 3754 s. 63.

63 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.

(3) This section shall apply to conveyances made after the thirty-first day of January One thousand nine hundred and five.

No. 3754 s. 64.

64 Production and 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 from time to time 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 person by him authorized in writing; and

(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 Victoria, 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 Part 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 or 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 Part 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 Part, 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 shall apply only if and as far as a contrary intention is not expressed in the acknowledgment or undertaking.

(14) This section shall apply to an acknowledgment or undertaking given, or a liability respecting documents incurred, after the thirty-first day of January One thousand nine hundred and five.

(15) Nothing in this section shall be deemed or taken to affect section fifteen of this Act or any corresponding previous enactment.

No. 3754 s. 65.

65 Reservation of legal estates

(1) A reservation of a legal estate shall without any execution of the conveyance by the grantee of the legal estate out of which the reservation is made, or any re-grant by him, operate at law so as to create the legal estate reserved, and so as to vest the same in possession in the person (whether being the grantor or not) for whose benefit the reservation is made.

(2) A conveyance of a legal estate expressed to be made subject to another legal estate not in existence immediately before the date of the conveyance, shall operate as a reservation, unless a contrary intention appears.

(3) This section shall apply only to reservations made after the commencement of this Act.

No. 3754 s. 66.

66 Confirmation of past transactions

(1) A deed containing a declaration by the owner of a legal estate in fee-simple or a term of years absolute that his estate shall go and devolve in such a manner as may be requisite for confirming any interests intended to affect his estate and capable of subsisting as legal estates which, at some prior date, were expressed to have been transferred or created, and any dealings therewith which would have been legal if those interests had been legally and validly transferred or created, shall, to the extent of the estate of such owner, operate to give legal effect to the interests so expressed to have been transferred or created and to the subsequent dealings aforesaid.

(2) The powers conferred by this section may be exercised by a trustee for sale or a personal representative (being in each case such an owner as is mentioned in the last preceding subsection) as well as by an absolute owner, but if exercised by any person, other than an absolute owner, only with the leave of the Court.

(3) This section shall apply only to deeds containing such a declaration as aforesaid if executed after the commencement of this Act.

No. 3754 s. 67.

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 indorsed on the deed.

(2) This section shall apply to deeds executed after the thirty-first day of January One thousand nine hundred and five.

No. 3754 s. 68.

68 Receipt in deed or indorsed evidence

(1) A receipt for consideration money or other consideration in the body of a deed or indorsed 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 shall apply to deeds executed after the thirty-first day of January One thousand nine hundred and five.

No. 3754 s. 69.

69 Receipt in deed or indorsed authority for payment to legal practitioner[[21]](#endnote-22)

S. 69(1) amended by Nos 23/1998 s. 8(2), 75/2006 s. 192(Sch. 2 item 4.1).

(1) Where a banker, legal practitioner or conveyancer produces a deed, having in the body thereof or indorsed thereon a receipt for consideration money or other consideration, the deed being executed, or the indorsed receipt being signed, by the person entitled to give a receipt for that consideration, or produces a duly executed instrument under the Transfer of Land Act 1958 the deed or instrument (as the case may be) shall be a sufficient authority to the person liable to pay or give the same for his paying or giving the same to the banker, legal practitioner or conveyancer, without the banker, legal practitioner or conveyancer producing any separate or other direction or authority in that behalf from the person who executed or signed the deed or receipt or instrument.

(2) This section shall apply whether the consideration was paid or given before or after the commencement of this Act.

S. 69(3) amended by No. 11/2001 s. 3(Sch. item 59.1(a) (b)).

(3) In this section instrument includes a discharge of mortgage and banker means a person acting in his or her official capacity as general manager or manager of any company solely or chiefly engaged in the ordinary business of banking or as the manager conducting for such company the business of any branch of an authorised deposit-taking institution within the meaning of the Banking Act 1959 of the Commonwealth.

S. 69(4) inserted by No. 75/2006 s. 192(Sch. 2 item 4.2).

(4) In this section, conveyancer means a licensee under the Conveyancers Act 2006.

No. 3754 s. 70.

70 Partial release of security from rentcharge

(1) 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.

(2) This section shall apply to releases made after the first day of June One thousand eight hundred and sixty-four.

No. 3754 s. 71.

71 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.

(3) This section shall apply to releases made after the first day of June One thousand eight hundred and sixty-four.

No. 3754 s. 72.

72 Conveyances by a person to himself etc.

(1) In conveyances made after the thirty-first day of December One thousand eight hundred and sixty‑four personal property, including chattels real, 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.

(2) In conveyances made after the thirty-first day of January One thousand nine hundred and five, 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 may, in like manner, be conveyed by a husband to his wife, and by a wife to her husband, alone or jointly with another person.

(3) After the commencement of this Act a person may convey land to or vest land in himself.

(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.

No. 3754 s. 73.

73 Execution of deeds by an individual

(1) Where an individual executes a deed, he shall either sign or place his mark upon the same and sealing alone shall not be deemed sufficient.

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

S. 73A inserted by No. 9043 s. 4.

73A Sealing of deeds

An instrument executed by an individual on or after the date of commencement of section 4 of the Property Law (Deeds) Act 1977 expressed to be sealed by that individual but not so sealed shall for all purposes operate and take effect as if it had been so sealed.

S. 73B inserted by No. 9630 s. 2.

73B Abrogation of rule that authority to agent to deliver must be under seal

(1) The rule of law that the authority to an agent to deliver a deed on behalf of another is required to be conferred by an instrument under seal duly executed by the principal is hereby abrogated.

(2) This section shall apply to authorities conferred before or after the commencement of this Act.

No. 3754 s. 74.

74 Execution of instruments by or on behalf of corporations

(1) In favour of a purchaser a deed shall be deemed to have been duly executed by a corporation aggregate if its seal be affixed thereto in the presence of and attested by its clerk, secretary or other permanent officer or his deputy, and a member of the board of directors, council or other governing body of the corporation, and where a seal purporting to be the seal of a corporation has been affixed to a deed, attested by persons purporting to be persons holding such offices as aforesaid, the deed shall be deemed to have been executed in accordance with the requirements of this section, and to have taken effect accordingly.

(2) The board of directors, council or other governing body of a corporation aggregate may, by resolution or otherwise, appoint an agent either generally or in any particular case, to execute on behalf of the corporation any agreement or other instrument not under seal in relation to any matter within the powers of the corporation.

(3) Where a person is authorized under a power of attorney or under any statutory or other power to convey any interest in property in the name or on behalf of a corporation sole or aggregate, he may as attorney execute the conveyance by signing the name of the corporation in the presence of at least one witness, and in the case of a deed by affixing his own seal, and such execution shall take effect and be valid in like manner as if the corporation had executed the conveyance.

(4) Where a corporation aggregate is authorized under a power of attorney or under any statutory or other power to convey any interest in property in the name or on behalf of any other person (including another corporation), an officer appointed for that purpose by the board of directors, council or other governing body of the corporation by resolution or otherwise, may execute the deed or other instrument in the name of such other person; and where an instrument appears to be executed by an officer so appointed, then in favour of a purchaser the instrument shall be deemed to have been executed by an officer duly authorized.

(5) The foregoing provisions of this section shall apply to transactions wherever effected, but only to deeds and instruments executed after the thirty-first day of December One thousand nine hundred and eighteen, except that, in the case of powers or appointments of an agent or officer, they shall apply whether the power was conferred or the appointment was made before or after the commencement of this Act or by this Part.

(6) Notwithstanding anything contained in this section, any mode of execution or attestation authorized by law or by practice or by the statute, charter, memorandum or articles, deed of settlement or other instrument constituting the corporation or regulating the affairs thereof, shall (in addition to the modes authorized by this section) be as effectual as if this section had not been passed.

No. 3754 s. 75.

75 Rights of purchaser as to execution

S. 75(1) amended by No. 35/1996 s. 453(Sch. 1 item 68.2).

(1) 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 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 legal practitioner.

S. 75(2) amended by No. 23/2004 s. 10(1).

(2) Subsection (1) shall apply to sales made after the thirty-first day of January One thousand nine hundred and five.

S. 75(3) inserted by No. 23/2004 s. 10(2), amended by No. 7/2013 ss 14, 22.

(3) The entitlement under subsection (1) to attestation of the execution of a conveyance does not apply to a registry instrument within the meaning of the Transfer of Land Act 1958.

Covenants

No. 3754 s. 76.

76 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 Part I of the Fourth Schedule 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 Part II of the Fourth Schedule 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 Part III of the Fourth Schedule 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 Part IV of the Fourth Schedule 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 Part V of the Fourth Schedule 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 committee of a lunatic or under an order of the Court, in the terms set out in Part VI of the Fourth Schedule 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.

(3) Where a wife conveys and is expressed to convey as beneficial owner, and the husband also conveys and is expressed to convey as beneficial owner, then, for the purposes of this section, the wife shall be deemed to convey and to be expressed to convey by direction of the husband, as beneficial owner; and, in addition to the covenant implied on the part of the wife, there shall also be implied, first, a covenant on the part of the husband as the person giving that direction, and secondly, a covenant on the part of the husband in the same terms as the covenant implied on the part of the wife.

(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 committee of a lunatic 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.

(8) This section shall apply to conveyances made after the thirty-first day of January One thousand nine hundred and five, but only to assents by a personal representative made after the commencement of this Act.

No. 3754 s. 77.

77 Implied covenants in conveyances subject to rents

(1) In addition to the covenants implied under the last preceding section, there shall in the several cases in this section mentioned, be deemed to be included and implied, a covenant to the effect in this section stated, by and with such persons as are hereinafter mentioned, that is to say—

(a) in a conveyance for valuable consideration, other than a mortgage, of the entirety of the land affected by a rentcharge, a covenant by the grantee or joint and several covenants by the grantees, if more than one, with the conveying parties and with each of them, if more than one, in the terms set out in Part VII of the Fourth Schedule to this Act. Where a rentcharge has been apportioned in respect of any land, with the consent of the owner of the rentcharge, the covenants in this paragraph shall be implied in the conveyance of that land in like manner as if the apportioned rentcharge were the rentcharge referred to, and the document creating the rentcharge related solely to that land;

(b) in a conveyance for valuable consideration, other than a mortgage, of part of land affected by a rentcharge, subject to a part of that rentcharge which has been or is by that conveyance apportioned (but in either case without the consent of the owner of the rentcharge) in respect of the land conveyed—

(i) a covenant by the grantee of the land or joint and several covenants by the grantees, if more than one, with the conveying parties and with each of them, if more than one, in the terms set out in paragraph (i) of Part VIII of the Fourth Schedule to this Act;

(ii) a covenant by a person who conveys or is expressed to convey as beneficial owner, or joint and several covenants by the persons who so convey or are expressed to so convey, if at the date of the conveyance any part of the land affected by such rentcharge is retained, with the grantees of the land and with each of them (if more than one) in the terms set out in paragraph (ii) of Part VIII of the Fourth Schedule to this Act;

(c) in a conveyance for valuable consideration, other than a mortgage, of the entirety of the land comprised in a lease, for the residue of the term or interest created by the lease, a covenant by the assignee or joint and several covenants by the assignees (if more than one) with the conveying parties and with each of them (if more than one) in the terms set out in Part IX of the Fourth Schedule to this Act. Where a rent has been apportioned in respect of any land, with the consent of the lessor, the covenants in this paragraph shall be implied in the conveyance of that land in like manner as if the apportioned rent were the original rent reserved, and the lease related solely to that land;

(d) in a conveyance for valuable consideration, other than a mortgage, of part of the land comprised in a lease, for the residue of the term or interest created by the lease, subject to a part of the rent which has been or is by the conveyance apportioned (but in either case without the consent of the lessor) in respect of the land conveyed—

(i) a covenant by the assignee of the land, or joint and several covenants by the assignees, if more than one, with the conveying parties and with each of them, if more than one, in the terms set out in paragraph (i) of Part X of the Fourth Schedule to this Act;

(ii) a covenant by a person who conveys or is expressed to convey as beneficial owner, or joint and several covenants by the persons who so convey or are expressed to so convey, if at the date of the conveyance any part of the land comprised in the lease is retained, with the assignees of the land and with each of them (if more than one) in the terms set out in paragraph (ii) of Part X of the Fourth Schedule to this Act.

(2) Where in a conveyance for valuable consideration, other than a mortgage, part of land affected by a rentcharge, or part of land comprised in a lease is, without the consent of the owner of the rentcharge or of the lessor, as the case may be, expressed to be conveyed—

(i) subject to or charged with the entire rent—

then paragraph (b)(i) or (d)(i) of the last subsection, as the case may require, shall have effect as if the entire rent were the apportioned rent; or

(ii) discharged or exonerated from the entire rent—

then paragraph (b)(ii) or (d)(ii) of the last subsection, as the case may require, shall have effect as if the entire rent were the balance of the rent, and the words "other than the covenant to pay the entire rent" had been omitted.

(3) In this section conveyance shall not include a demise by way of lease or rent.

(4) Any covenant which would be implied under this section by reason of a person conveying or being expressed to convey as beneficial owner may, by express reference to this section, be implied, with or without variation, in a conveyance, whether or not for valuable consideration, by a person who conveys or is expressed to convey as settlor, or as trustee, or as mortgagee, or as personal representative of a deceased person, or as committee of a lunatic, or under an order of the Court.

(5) 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.

(6) 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.

(7) In particular any covenant implied under this section may be extended by providing that—

(a) the land conveyed; or

(b) the part of the land affected by the rentcharge which remains vested in the covenantor; or

(c) the part of the land demised which remains vested in the covenantor—

shall, as the case may require, stand charged with the payment of all money which may become payable under the implied covenant.

(8) This section shall apply only to conveyances made after the commencement of this Act.

No. 3754 s. 78.

78 Benefits of covenants relating to land

(1) A covenant relating to any 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 such successors and other persons were expressed.

For the purposes of this subsection in connexion with covenants restrictive of the user 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.

(2) This section shall apply to covenants made after the commencement of this Act but the repeal of section sixty-four of the Conveyancing Act 1915 shall not affect the operation of covenants to which that section or any corresponding previous enactment applied.

No. 3754 s. 79.

79 Burden of covenants relating to land

(1) A covenant relating to any land of a covenantor or capable of being bound by him, shall, unless a contrary intention is expressed, 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, subject as aforesaid, shall have effect as if such successors and other persons were expressed.

This subsection shall extend 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.

(2) For the purposes of this section in connexion with covenants restrictive of the user of land successors in title shall be deemed to include the owners and occupiers for the time being of such land.

(3) This section shall apply only to covenants made after the commencement of this Act.

S. 79A inserted by No. 7130 s. 3.

79A Construction of covenants affecting land

It is hereby declared that when the benefit of a restriction as to the user of or the building on any land is or has been annexed or purports to be annexed by any instrument to other land the benefit shall unless it is expressly provided to the contrary be deemed to be and always to have been annexed to the whole and to each and every part of such other land capable of benefiting from such restriction.

No. 3754 s. 80.

80 Covenants binding land

(1) A covenant and a bond and an obligation or contract under seal made after the thirty-first day of January One thousand nine hundred and five shall operate to bind the real estate as well as the personal estate of the person making the same if and so far as a contrary intention is not expressed in the covenant, bond, obligation or contract.

This subsection shall extend to a covenant implied by virtue of this Part[22].

(2) Every covenant running with the land, whether entered into before or after the commencement of this Act, shall take effect in accordance with any statutory enactment affecting the devolution of the land, and accordingly the benefit or burden of every such covenant shall vest in or bind the persons who by virtue of any such enactment or otherwise succeed to the title of the covenantee or the covenantor, as the case may be.

(3) The benefit of a covenant relating to land entered into after the commencement of this Act may be made to run with the land without the use of any technical expression if the covenant is of such a nature that the benefit could have been made to run with the land before the commencement of this Act.

(4) For the purposes of this section, a covenant runs with the land when the benefit or burden of it, whether at law or in equity, passes to the successors in title of the covenantee or the covenantor, as the case may be.

No. 3754 s. 81.

81 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 Part, 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, and where made after the commencement of this Act shall be construed as being also made with each of them.

(2) This section shall extend to a covenant implied by virtue of this Part[23].

(3) This section shall apply 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) Except as otherwise expressly provided, this section shall apply to a covenant, contract, bond or obligation made or implied after the thirty-first day of January One thousand nine hundred and five.

No. 3754 s. 82.

82 Where one or more persons enter into covenants etc.

(1) Any covenant, whether express or implied, or agreement entered into by a person with himself and one or more other persons shall be construed and be capable of being enforced in like manner as if the covenant or agreement had been entered into with the other person or persons alone.

(2) This section shall apply to covenants or agreements entered into before or after the commencement of this Act, and to covenants implied by statute in the case of a person who conveys or is expressed to convey to himself and one or more other persons, but without prejudice to any order of the Court made before such commencement.

No. 3754 s. 83.

83 Construction of implied covenants

In the construction of a covenant or proviso, or other provision, implied in a deed or assent by virtue of this Part, words importing the singular or plural number, or the masculine gender, shall be read as also importing the plural or singular number, or as extending to females, as the case may require.

No. 3754 s. 84.

84 Power for Court to modify etc. restrictive covenants affecting land

(1) The Court shall have power from time to time on the application of any person interested in any land affected by any restriction arising under covenant or otherwise as to the user thereof or the building thereon by order wholly or partially to discharge or modify any such restriction (subject or not to the payment by the applicant of compensation to any person suffering loss in consequence of the order) upon being satisfied—

(a) that by reason of changes in the character of the property or the neighbourhood or other circumstances of the case which the Court deems material the restriction ought to be deemed obsolete or that the continued existence thereof would impede the reasonable user of the land without securing practical benefits to other persons or (as the case may be) would unless modified so impede such user; or

(b) that the persons of full age and capacity for the time being or from time to time entitled to the benefit of the restriction whether in respect of estates in fee-simple or any lesser estates or interests in the property to which the benefit of the restriction is annexed have agreed either expressly or by implication by their acts or omissions to the same being discharged or modified; or

(c) that the proposed discharge or modification will not substantially injure the persons entitled to the benefit of the restriction:

Provided that no compensation shall be payable in respect of the discharge or modification of a restriction by reason of any advantage thereby accruing to the owner of the land affected by the restriction unless the person entitled to the benefit of the restriction also suffers loss in consequence of the discharge or modification nor shall any compensation be payable in excess of such loss; but this provision shall not affect any right to compensation where the person claiming the compensation proves that by reason of the imposition of the restriction the amount of consideration paid for the acquisition of the land was reduced.

(2) The Court shall have power on the application of any person interested—

(a) to declare whether or not in any particular case any land is affected by a restriction imposed by any instrument; or

(b) to declare what upon the true construction of any instrument purporting to impose a restriction is the nature and extent of the restriction thereby imposed and whether the same is enforceable and if so by whom.

(3) The Court may before making any order under this section direct such inquiries (if any) to be made of any local authority or such notices (if any) whether by way of advertisement or otherwise to be given to such of the persons who appear to be entitled to the benefit of the restriction intended to be discharged, modified or dealt with as, having regard to any inquiries, notices or other proceedings previously made given or taken the Court thinks fit.

(4) Any order made under this section shall be binding on all persons whether ascertained or of full age or capacity or not then entitled or thereafter capable of becoming entitled to the benefit of any restriction which is thereby discharged, modified or dealt with and whether such persons are parties to the proceedings or have been served with notice or not.

(5) An order may be made under this section notwithstanding that any instrument which is alleged to impose the restriction intended to be discharged, modified or dealt with has not been produced to the Court, and the Court may act on any evidence of such instrument as it thinks fit.

(6) This section shall apply to restrictions whether subsisting on the thirty-first day of December One thousand nine hundred and eighteen, or imposed thereafter and whether the land affected thereby is registered or not, and in the case of registered land the registrar shall if the restriction has been noted on the register give effect on the register to the order when made[24].

No. 3754 s. 85.

85 Defendant may apply for order

Where any proceedings by action or otherwise are taken to enforce a restrictive covenant any person against whom the proceedings are taken may in such proceedings apply to the Court for an order to be made under the last preceding section.

Division 3—Mortgages and rentcharges

Mortgages

No. 3754 s. 86.

86 Mortgages under Transfer of Land Act 1958 generally excepted

Except sections eighty-seven, one hundred and two, one hundred and nine, one hundred and ten, one hundred and eleven and one hundred and twelve, the provisions of this Division shall not apply to mortgages under the Transfer of Land Act 1958 effected by instruments of mortgage under that Act.

No. 3754 s. 87.

87 Foreclosure extinguishes right of action for mortgage debt etc.

(1) On a decree judgment or order absolute for foreclosure the mortgagee shall be deemed to have taken the property mentioned in such decree, judgment or order in full satisfaction of the mortgage debt and his right or equity to bring any action or to take other proceedings for the recovery of the mortgage money from the debtor, surety or other person shall be extinguished and the right or equity of the mortgagor to redeem the said property shall also be extinguished.

S. 87(2) amended by No. 18/1989 s. 13(Sch. 2 item 68(a)).

(2) In the case of mortgages of land under the Transfer of Land Act 1958 order absolute includes an order for foreclosure under the hand of the registrar when recorded on the Register.

(3) Nothing in this section shall be deemed to disentitle the mortgagee (on such terms and conditions as to the Court seems just) from obtaining foreclosure of any other property over which he holds security by way of mortgage for the said money or part thereof or from enforcing all or any rights, powers and remedies expressed or implied in such mortgage except the right to sue the mortgagor or any surety for the mortgagor either for the mortgage money or on any bill or note given as security for the mortgage money as if this section had not been passed.

(4) This section shall have effect notwithstanding any stipulation to the contrary.

No. 3754 s. 88.

88 Effect of conveyance on sale by mortgagee by sub‑demise

If under a mortgage deed by sub-demise a leasehold nominal reversion consisting of a term of years absolute or any part of such term is held in trust for the mortgagee or would on a sale be held in trust for a purchaser from him then on a sale by the mortgagee the conveyance (made after the thirty-first day of December One thousand nine hundred and eighteen) shall operate to convey not only the mortgage term but also (unless expressly excepted) the aforesaid nominal reversion, and the mortgage term and any subsequent mortgage term shall subject to any express provision to the contrary contained in the conveyance merge in the leasehold reversion.

No. 3754 s. 89.

89 When section 88 takes effect

The last preceding section shall take effect without prejudice to any prior incumbrance or trust affecting the nominal reversion and shall apply whether the mortgage deed was or is executed before or after the date aforesaid, but shall not apply where the mortgage term does not comprise the whole of the land included in the leasehold reversion unless the rent (if any) payable in respect of that reversion has been apportioned as respects the land conveyed or the rent is of no money value or no rent is reserved and unless the covenants (if any) entered into for the benefit of the reversion have been apportioned (either expressly or by implication) as respects the land conveyed; and in the said section mortgagee shall include any person entitled to exercise the statutory or other power of sale.

No. 3754 s. 90.

90 Realization of equitable charges by the Court

(1) Where an order for sale is made by the Court in reference to an equitable mortgage on land the Court may, in favour of a purchaser, make a vesting order conveying the land or may appoint a person to convey the land, or may create and vest in the mortgagee a legal estate in the land to enable him to carry out the sale as the case requires, in like manner as if the mortgage had been made by deed by way of legal mortgage, but without prejudice to any incumbrance having priority to the equitable mortgage unless the incumbrancer consents to the sale.

(2) This section shall apply to equitable mortgages made or arising before or after the commencement of this Act, but not to a mortgage which has been overreached under the powers conferred by this Part or otherwise.

No. 3754 s. 91.

91 Sale of mortgaged property in action for redemption or foreclosure

(1) Any person entitled to redeem mortgaged property may have a judgment or 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 that—

(a) any other person dissents; or

(b) 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 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) But, 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.

(5) This section shall apply to actions brought either before or after the commencement of this Act.

(6) In this section mortgaged property shall include the estate or interest which a mortgagee would have had power to convey if the statutory power of sale were applicable.

(7) For the purposes of this section the Court may, in favour of a purchaser, make a vesting order conveying the mortgaged property, or appoint a person to do so, subject or not to any incumbrance, as the Court thinks fit; or, in the case of an equitable mortgage, may create and vest in the mortgagee a legal estate to enable him to carry out the sale in like manner as if the mortgage had been made by deed by way of legal mortgage.

No. 3754 s. 92.

92 Power to authorize land and minerals to be dealt with separately

Where a mortgagee's power of sale in regard to land has become exercisable but does not extend to the purposes mentioned in this section, the Court may, on his application, authorize him and the persons deriving title under him to dispose—

(a) of the land, with an exception or reservation of all or any mines and minerals, and with or without rights and powers of or incidental to the working, getting or carrying away of minerals; or

(b) of all or any mines and minerals, with or without the said rights or powers separately from the land—

and thenceforth the powers so conferred shall have effect as if the same were contained in the mortgage.

No. 3754 s. 93.

93 Restriction on consolidation of mortgages

(1) A mortgagor seeking to redeem any one mortgage shall be entitled to do so without paying any money due under any separate mortgage made by him, or by any person through whom he claims, on property other than that comprised in the mortgage which he seeks to redeem.

(2) This section shall have effect notwithstanding any stipulation to the contrary.

(3) This section shall apply only where the mortgages or one of them are or is made after the thirty-first day of January One thousand nine hundred and five.

No. 3754 s. 94.

94 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; or

(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.

This subsection shall apply whether or not the prior mortgage was made expressly for securing further advances.

(2) In relation to the making of further advances after the commencement of this Act a mortgagee shall not be deemed to have notice of a mortgage merely by reason that it was registered under Part I of this Act or any corresponding previous enactment, if it was not so registered at the time when the original mortgage was created or when the last search (if any) by or on behalf of the mortgagee was made, whichever last happened.

This subsection shall apply only where the prior mortgage was made expressly for securing a current account or other further advances.

(3) The right to tack, save in regard to the making of further advances as aforesaid, is hereby declared to have been abolished by the Property Law Act 1928, section 94(3):

Provided that nothing in this Part shall affect any priority acquired before the commencement of that Act by tacking, or in respect of further advances made without notice of a subsequent incumbrance or by arrangements with the subsequent incumbrancer.

(4) This section shall apply to mortgages of land made before or after the commencement of this Act.

No. 3754 s. 95.

95 Obligation to transfer instead of re-conveying

(1) Where a mortgagor is entitled to redeem, then subject to compliance with the terms on compliance with which he would be entitled to require a re-conveyance or surrender, he shall be entitled to require the mortgagee, instead of re‑conveying or surrendering, to assign the mortgage debt and convey the mortgaged property to any third person, as the mortgagor directs; and the mortgagee shall be bound to assign and convey accordingly.

(2) The rights conferred by this section shall belong to and shall 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 shall not apply in the case of a mortgagee being or having been in possession.

(4) This section shall apply to mortgages made either before or after the commencement of this Act, and shall take effect notwithstanding any stipulation to the contrary.

No. 3754 s. 96.

S. 96 amended by No. 35/1996
s. 453(Sch. 1 item 68.2).

96 Mortgagor entitled to inspection and copies of documents relating to mortgaged property

A mortgagor, as long as his right to redeem subsists, shall be entitled from time to time, at reasonable times, on his request, and at his own cost, and on payment of the mortgagee's costs and expenses in this behalf, by himself or his legal practitioner 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.

This section shall have effect notwithstanding any stipulations to the contrary.

No. 3754 s. 97.

97 Delivery of documents on extinguishment of mortgage

A mortgagee, whose mortgage is surrendered or otherwise extinguished, shall not be liable on account of delivering documents of title in his possession to the person not having the best right thereto, unless he has notice of the right or claim of a person having a better right, whether by virtue of a right to require a surrender or re‑conveyance or otherwise.

No. 3754 s. 98.

98 Actions for possession by mortgagors

(1) A mortgagor for the time being entitled to the possession or receipt of the rents and profits of any land, as to which the mortgagee has not given notice of his intention to take possession or to enter into the receipt of the rents and profits thereof, may sue for such possession, or for the recovery of such rents or profits, or to prevent or recover damages in respect of any trespass or other wrong relative thereto, in his own name only, unless the cause of action arises upon a lease or other contract made by him jointly with any other person[25].

(2) This section shall not prejudice the power of a mortgagor independently of this section to take proceedings in his own name only, either in right of any legal estate vested in him or otherwise.

(3) This section shall apply whether the mortgage was made before or after the commencement of this Act.

No. 3754 s. 99.

99 Leasing powers of mortgagor and mortgagee in possession

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

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

(3) The lease which this section authorizes is a lease for a term not exceeding seven 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 three 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 or rent made payable in advance.

(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 thirty 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) 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.

(10) 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.

(11) This section shall apply only if and as far as a contrary intention is not expressed by the mortgagor and mortgagee in the mortgage deed, or otherwise 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.

(12) The mortgagor and mortgagee may, by agreement in writing, whether or not contained in the mortgage deed, reserve to or confer 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 Part, and with all the like incidents, effects and consequences:

Provided that the powers so reserved or conferred shall not prejudicially affect the rights of any mortgagee interested under any other mortgage subsisting at the date of the agreement, unless that mortgagee joins in or adopts the agreement.

(13) Nothing in this Part 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 Part and the corresponding previous enactments had not been passed:

Provided that, in the case of a mortgage of leasehold land, a lease granted under this section shall reserve a reversion of not less than one day.

(14) Subject as aforesaid, this section shall apply to any mortgage made after the thirty-first day of January One thousand nine hundred and five, but the provisions of this section, or any of them, may, by agreement in writing made after that date between mortgagor and mortgagee, be applied to a mortgage made before that date, 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.

(16) For the purposes of this section mortgagor shall not include an incumbrancer deriving title under the original mortgagor.

(17) The powers of leasing conferred by this section shall, after a receiver of the income of the mortgaged property or any part thereof has been appointed by a mortgagee under this Part, and so long as the receiver acts, be exercisable by such mortgagee instead of by the mortgagor, as respects any land affected by the receivership, in like manner as if such mortgagee were in possession of the land, and the mortgagee may, by writing, delegate any of such powers to the receiver.

No. 3754 s. 100.

100 Powers of mortgagor and mortgagee in possession to accept surrenders of leases

(1) For the purpose only of enabling a lease authorized under the last preceding section, or under any agreement made pursuant to that section, or by the mortgage deed (in this section referred to as an authorized lease) to be granted, a mortgagor of land while in possession shall, in like manner as if the legal estate was vested in him and as against every incumbrancer, have, by virtue of this Part, power to accept from time to time a surrender of any lease of the mortgaged land or any part thereof comprised in the lease, with or without an exception of or in respect of all or any of the mines and minerals therein, and, on a surrender of the lease so far as it comprises part only of the land or mines and minerals leased, the rent may be apportioned.

(2) For the same purpose, a mortgagee of land while in possession shall, in like manner as against all prior or other incumbrancers (if any) and as against the mortgagor, have, by virtue of this Part power to accept from time to time any such surrender as aforesaid.

(3) On a surrender of part only of the land or mines and minerals leased, the original lease may be varied, provided that the lease when varied would have been valid as an authorized lease if granted by the person accepting the surrender; and, on a surrender and the making of a new or other lease, whether for the same or for any extended or other term, and whether subject or not to the same or to any other covenants, provisions or conditions, the value of the lessee's interest in the lease surrendered may, subject to the provisions of this section, be taken into account in the determination of the amount of the rent to be reserved, and of the nature of the covenants, provisions and conditions to be inserted in the new or other lease.

(4) Where any consideration for the surrender, other than an agreement to accept an authorized lease, is given by or on behalf of the lessee to or on behalf of the person accepting the surrender, nothing in this section shall authorize a surrender to a mortgagor without the consent of the incumbrancers, or shall authorize a surrender to a second or subsequent incumbrancer without the consent of every prior incumbrancer.

(5) No surrender shall, by virtue of this section, be rendered valid unless—

(a) an authorized lease is granted of the whole of the land or mines or minerals comprised in the surrender to take effect in possession immediately or within one month after the date of the surrender; and

(b) the term certain or other interest granted by the new lease is not less in duration than the unexpired term or interest which would have been subsisting under the original lease if that lease had not been surrendered; and

(c) where the whole of the land, mines and minerals originally leased has been surrendered, the rent reserved by the new lease is not less than the rent which would have been payable under the original lease if it had not been surrendered; or where part only of the land or mines and minerals has been surrendered, the aggregate rents respectively remaining payable or reserved under the original lease and new lease are not less than the rent which would have been payable under the original lease if no partial surrender had been accepted.

(6) A contract to make or accept a surrender under this section may be enforced by or against every person on whom the surrender, if completed, would be binding.

(7) This section shall apply only if and as far as a contrary intention is not expressed by the mortgagor and mortgagee in the mortgage deed, or otherwise 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.

(8) This section shall apply to a mortgage made after the twenty-seventh day of September One thousand nine hundred and fourteen, but the provisions of this section, or any of them, may, by agreement in writing made after that date, between the mortgagor and mortgagee, be applied to a mortgage made before that date, so nevertheless that any such agreement shall not prejudicially affect any right or interest of any mortgagee not joining in or adopting the agreement.

(9) 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.

(10) The mortgagor and mortgagee may, by agreement in writing, whether or not contained in the mortgage deed, reserve or confer on the mortgagor or mortgagee, or both, any further or other powers relating to the surrender of leases; and any further or other powers so conferred or reserved shall be exercisable, as far as may be, as if they were conferred by this Part, and with all the like incidents, effects and consequences:

Provided that the powers so reserved or conferred shall not prejudicially affect the rights of any mortgagee interested under any other mortgage subsisting at the date of the agreement, unless that mortgagee joins in or adopts the agreement.

(11) Nothing in this section shall operate to enable a mortgagor or mortgagee to accept a surrender which could not have been accepted by the mortgagor with the concurrence of all the incumbrancers if this Part and any corresponding previous enactment had not been passed.

(12) For the purposes of this section mortgagor shall not include an incumbrancer deriving title under the original mortgagor.

(13) The powers of accepting surrenders conferred by this section shall, after a receiver of the income of the mortgaged property or any part thereof has been appointed by the mortgagee, under this Part, and so long as the receiver acts, be exercisable by such mortgagee instead of by the mortgagor, as respects any land affected by the receivership, in like manner as if such mortgagee was in possession of the land; and the mortgagee may, by writing, delegate any of such powers to the receiver.

Nos 3754 s. 101, 4265 s. 3.

101 Powers incident to estate or interest of mortgagee

(1) A mortgagee, where the mortgage is made by deed, shall, by virtue of this Part, 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) a power, when the mortgage money has become due, to sell, or to concur with any other person in selling, the mortgaged property, or any part thereof, either subject to prior charges or not, and either together or in lots, by public auction or by private contract, and for a sum payable either in one amount or by instalments, 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 re-sell, without being answerable for any loss occasioned thereby, with power to make such roads, streets and passages and grant such easements of right of way or drainage over the same as the circumstances may require and he thinks fit; and

(b) a power, 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 property which or an estate or interest wherein is mortgaged, and the premiums paid for any such insurance shall be a charge on the mortgaged property or estate or interest, in addition to the mortgage money, and with the same priority, and with interest at the same rate, as the mortgage money; and

(c) where the mortgage deed is executed after the thirty-first day of December One thousand nine hundred and twelve, a power, when the mortgage money has become due, to appoint a receiver of the income of the mortgaged property, or any part thereof; or, if the mortgaged property consists of an interest in income, or of a rentcharge or an annual or other periodical sum, a receiver of that property or any part thereof.

(2) Where the mortgage deed is executed after the thirty-first day of December One thousand nine hundred and twelve, the power of sale aforesaid shall include the following powers as incident thereto, namely—

(a) a power to impose or reserve or make binding, as far as the law permits, by covenant, condition or otherwise, on the unsold part of the mortgaged property or any part thereof, or on the purchaser and any property sold, any restriction or reservation with respect to building on or other user of land, or with respect to mines and minerals, or for the purpose of the more beneficial working thereof, or with respect to any other thing;

(b) a power to sell the mortgaged property, or any part thereof, or all or any mines and minerals apart from the surface—

(i) with or without a grant or reservation of rights of way, rights of water, easements, rights and privileges for or connected with building or other purposes in relation to the property remaining in mortgage or any part thereof or to any property sold; and

(ii) with or without an exception or reservation of all or any of the mines and minerals in or under the mortgaged property, and with or without a grant or reservation of powers of working, wayleaves, or rights of way, rights of water and drainage and other powers, easements, rights and privileges for or connected with mining purposes in relation to the property remaining unsold or any part thereof, or to any property sold; and

(iii) with or without covenants by the purchaser to expend money on the land sold.

(3) The provisions of this Part relating to the foregoing powers, comprised either in this section, or in any other 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 Part.

(4) This section shall apply 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.

(5) Save as otherwise provided, this section shall apply where the mortgage deed is executed after the thirty-first day of January One thousand nine hundred and five.

No. 3754 s. 102.

102 Power to appoint receiver in the case of mortgage under the Transfer of Land Act 1958

The provisions of subsection (1) of the last preceding section so far as they relate to the power to appoint a receiver shall apply to a mortgage under the Transfer of Land Act 1958 and in applying such provisions the expression mortgage deed shall be construed as including an instrument of mortgage under the said Act.

No. 3754 s. 103.