189Enforcement of covenants etc. relating to indemnity against rent

189 Enforcement of covenants etc. relating to indemnity against rent The benefit of all covenants and powers given by way of indemnity against a rent or any part thereof payable in respect of land, or against the breach of any covenant or condition in relation to land, shall be and shall be deemed always to have been annexed to the land to which the indemnity is intended to relate, and may be enforced by the owner of the legal estate for the time being of the whole or any part of that land, notwithstanding that the benefit has not been expressly apportioned or assigned to him or to any of his predecessors in title. *Redemption and Apportionment of Rents &c.* Nos 3754 s. 190, 5753 s. 2. 190 Equitable apportionment of rents and remedies for non‑payment or breach of covenant (1) Where in a conveyance for valuable consideration other than a mortgage, of part of land which is affected by a rentcharge, such rentcharge or a part thereof, is without the consent of the owner thereof, expressed to be— (a) charged exclusively on the land conveyed or any part thereof in exoneration of the land retained or other land; or (b) charged exclusively on the land retained or any part thereof in exoneration of the land conveyed or other land; or (c) apportioned between the land conveyed or any part thereof, and the land retained by the grantor or any part thereof— then, without prejudice to the rights of the owner of the rentcharge, such charge or apportionment shall be binding as between the grantor and the grantee under the conveyance and their respective successors in title. (2) Where— (a) any default is made in payment of the whole or part of a rentcharge by the person who, by reason of such charge or apportionment as aforesaid, is liable to pay the same; or (b) any breach occurs of any of the covenants (other than in the case of an apportionment the covenant to pay the entire rentcharge) or conditions contained in the deed or other document creating the rentcharge, so far as the same relate to the land retained or conveyed, as the case may be— the owner for the time being of any other land affected by the entire rentcharge who— (i) pays or is required to pay the whole or part of the rentcharge which ought to have been paid by the defaulter aforesaid; or (ii) incurs any costs, damages or expenses by reason of the breach of covenant or condition aforesaid— may take possession of the income of the land in respect of which the default or breach is made or occurs or of any part of that land until, by means of such receipt of income or otherwise the whole or part of the rentcharge (charged or apportioned as aforesaid) so unpaid and all costs, damages and expenses incurred by reason of the non-payment thereof or of the breach of the said covenants and conditions, are fully paid or satisfied. (3) Where in a conveyance for valuable consideration, other than a mortgage, of part of land comprised in a lease, for the residue of the term or interest created by the lease, the rent reserved by such lease or part thereof is, without the consent of the lessor, expressed to be— (a) charged exclusively on the land conveyed or any part thereof in exoneration of the land retained by the assignor or other land; or (b) charged exclusively on the land retained by the assignor or any part thereof in exoneration of the land conveyed or other land; or (c) apportioned between the land conveyed or any part thereof and the land retained by the assignor or any part thereof— then, without prejudice to the rights of the lessor, such charge or apportionment shall be binding as between the assignor and the assignee under the conveyance and their respective successors in title. (4) Where— (a) any default is made in payment of the whole or part of a rent by the person who, by reason of such charge or apportionment as aforesaid, is liable to pay the same; or (b) any breach occurs of any of the lessee's covenants (other than in the case of an apportionment the covenant to pay the entire rent) or conditions contained in the lease, so far as the same relate to the land retained or conveyed, as the case may be— the lessee for the time being of any other land comprised in the lease, in whom, as respects that land, the residue of the term or interest created by the lease is vested, who— (i) pays or is required to pay the whole or part of the rent which ought to have been paid by the defaulter aforesaid; or (ii) incurs any costs, damages or expenses by reason of the breach of covenant or condition aforesaid— may take possession of the income of the land comprised in the lease in respect of which the default or breach is made or occurs or of any part of that land until (so long as the term or interest created by the lease is subsisting) by means of such receipt of income or otherwise, the whole or part of the rent (charged or apportioned as aforesaid) so unpaid and all costs, damages and expenses incurred by reason of the non-payment thereof or of the breach of the said covenants and conditions are fully paid or satisfied. (5) The remedies conferred by this section shall take effect so far only as they might have been conferred by the conveyance whereby the rent or any part thereof is expressed to be charged or apportioned as aforesaid, but a trustee, personal representative, mortgagee or other person in a fiduciary position shall have and shall be deemed always to have had power to confer the same or like remedies. (6) This section shall apply only if and so far as a contrary intention is not expressed in the conveyance whereby the rent or any part thereof is expressed to be charged or apportioned as aforesaid, and shall take effect subject to the terms of that conveyance and to the provisions therein contained. (7) The remedies conferred by this section shall apply only where the conveyance whereby the rent or any part thereof is expressed to be charged or apportioned is made after the commencement of this Act, and do not apply where the rent is charged exclusively as aforesaid or legally apportioned with the consent of the owner or lessor. (8) The rule of law relating to perpetuities shall not affect the powers or remedies conferred by this section or any like powers or remedies expressly conferred, before or after the commencement of this Act, by an instrument. *Contingent Remainders and Uses* No. 3754 s. 191.