153Enlargement of residue of long terms into fee-simple estates

153 Enlargement of residue of long terms into fee-simple estates (1) Where a residue unexpired of not less than two hundred years of a term, which, as originally created, was for not less than three hundred years, is subsisting in land, whether being the whole land originally comprised in the term, or part only thereof— (a) without any trust or right of redemption affecting the term in favour of the freeholder, or other person entitled in reversion expectant on the term; and (b) without any rent, or with merely a peppercorn rent or other rent having no money value, incident to the reversion, or having had a rent, not being merely a peppercorn rent or other rent having no money value, originally so incident, which subsequently has been released or has become barred by lapse of time, or has in any other way ceased to be payable— the term may be enlarged into a fee-simple in the manner and subject to the restrictions in this section provided. (2) This section shall apply to and include every such term as aforesaid whenever created, whether or not having the freehold as the immediate reversion thereon; but shall not apply to— (a) any term liable to be determined by re-entry for condition broken; or (b) any term created by sub-demise out of a superior term, itself incapable of being enlarged into fee-simple. (3) This section shall extend to mortgage terms, where the right of redemption is barred. (4) A rent not exceeding the yearly sum of $2 which has not been collected or paid for a continuous period of twenty years or upwards shall, for the purposes of this section, be deemed to have ceased to be payable: Provided that, of the said period, at least five years must have elapsed after the commencement of this Act. (5) Where a rent incident to a reversion expectant on a term to which this section applies is deemed to have ceased to be payable for the purposes aforesaid, no claim for such rent or for any arrears thereof shall be capable of being enforced. (6) Each of the following persons, namely— (a) any person beneficially entitled in right of the term whether subject to any incumbrance or not, to possession of any land comprised in the term, and, in the case of a married woman without the concurrence of her husband, whether or not she is entitled for her separate use or as her separate property, or is subject to a restraint on anticipation[[33]](#endnote-34); (b) any person being in receipt of income as trustee, in right of the term, or having the term, vested in him in trust for sale, whether subject to any incumbrance or not; (c) any person in whom, as personal representative of any deceased person, the term is vested, whether subject to any incumbrance or not— shall, so far as regards the land to which he is entitled, or in which he is interested in right of the term, in any such character as aforesaid, have power by deed to declare to the effect that, from and after the execution of the deed, the term shall be enlarged into a fee-simple. (7) Such deed shall be duly registered in the office of the Registrar-General and thereupon by virtue of the deed and of this Part, the term shall become and be enlarged accordingly, and the person in whom the term was previously vested shall acquire and have in the land a fee-simple instead of the term. (8) The estate in fee-simple so acquired by enlargement shall be subject to all the same trusts, powers, executory limitations over, rights, and equities, and to all the same covenants and provisions relating to user and enjoyment, and to all the same obligations of every kind, as the term would have been subject to if it had not been so enlarged. (9) But where— (a) any land so held for the residue of a term has been settled in trust by reference to other land, being freehold land, so as to go along with that other land, or, in the case of settlements coming into operation before the commencement of the **Property Law Act 1928**, so as to go along with that other land as far as the law permits; and (b) at the time of enlargement, the ultimate beneficial interest in the term, whether subject to any subsisting particular estate or not, has not become absolutely and indefeasibly vested in any person, free from charges or powers of charging created by a settlement— the estate in fee-simple acquired as aforesaid shall, without prejudice to any conveyance for value previously made by a person having a contingent or defeasible interest in the term, be liable to be, and shall be, conveyed and settled in like manner as the other land being freehold land, aforesaid, and until so conveyed and settled, shall devolve beneficially as if it had been so conveyed and settled. No. 3754 s. 154.