Part 15Trusts and transmissions

Part 15—Trusts and transmissions 161—Trusts contained in grant from the Crown to be inserted in certificate as in original grant Whenever any grant from the Crown shall contain the particulars of any trust for public purposes, every certificate issued in respect of the same land, or any part thereof, while such trusts subsist and affect such land, shall contain the like particulars of trust as were contained in the original grant. 162—No particulars of trust to be entered in Register Book but trust instrument may be deposited The Registrar-General shall not, except as aforesaid, make any entry in the Register Book of the particulars of any trust, nor shall any instrument be registered under this Act, which declares or contains trusts relating to land under the provisions of this Act, but any such instrument, or a duplicate or attested copy thereof, may be deposited with the Registrar-General for safe custody and reference, and such instrument may be deposited in the General Registry Office pursuant to the Registration of Deeds Act 1935, or any other Act relating to the deposits of deeds in the Registry Office, and may include as well land under the provisions of this Act, as land which is not under the provisions hereof: Provided that nothing herein contained shall prevent the registration of any instrument which would otherwise be valid in which a reference may be made to the instrument so deposited as aforesaid; nor shall such reference operate as notice of the particulars of the trusts declared or contained in the deposited instrument, but in the absence of caveat the registered proprietor shall, for the purpose of sale, mortgage, or contract for valuable consideration be deemed to be the absolute proprietor of such land freed from the said trusts. 163—Insertion of the words "with no survivorship" in instruments If an instrument grants or transfers an estate or interest in land to 2 or more persons as joint proprietors intended to be held by them as trustees— (a) a party to the instrument may use the words "with no survivorship" in the instrument; and (b) the Registrar‑General must, if the words "with no survivorship" are used in the instrument, record that fact in the Register Book and on a conspicuous place on any certificate issued to the joint proprietors. 164—Trustees may authorise insertion of "with no survivorship" Any 2 or more persons registered as joint proprietors of any estate or interest in land held by them as trustees, may, by executing the appropriate form, authorise the Registrar‑General to record the words "with no survivorship" on the certificate evidencing their title to such estate or interest, in the Register Book. 165—Effect of record After any such record as in the last 2 sections mentioned has been made by the Registrar-General in the Register Book, it shall not be lawful for any less number of joint proprietors than the number then registered to transfer or otherwise deal with the said estate, or interest, without obtaining an order of the Court: Provided that, if it be intended not to apply the said restriction until the trustees registered as such proprietors be reduced below a certain specified number, words indicative of such intention may be recorded in like manner, and in that case the power of disposition by survivors shall continue until the number be so reduced. 166—Court may direct notice to be published before order is made The Court may, before making any such order as aforesaid, direct notice of the intention to apply for such order to be given, either by public advertisement or otherwise, and may appoint a period within which any person interested may show cause why such order should not be made. 167—Court may protect persons interested The Court may in such order give directions for the transfer of such estate, or interest, to any new proprietor or proprietors, solely or jointly, with, or in the place of, any existing proprietor or proprietors, or may make such order in the premises as may be just for the protection of the persons beneficially interested in such estate, or interest, or in the proceeds thereof; and upon any such order being deposited with the Registrar-General, he shall make such entries and perform such acts as in accordance with the provisions of this Act may be necessary for the purpose of giving effect to such order. 168—Survivors may perform duties or transfer to new trustees Nothing hereinbefore contained shall prevent the surviving and remaining trustee or trustees from exercising all the powers and duties of the trust other than in regard to transfers and dealings under this Act, nor from so transferring the land as to give effect to any valid appointment of a new trustee or new trustees. And so far as shall be necessary to ascertain the sufficiency of any such appointment, it shall be lawful for the Registrar-General to refer to the provisions of any instrument relating to the trust, notwithstanding the same be not registered. 169—Disclaimers (1) If a person (the disclaimant) (whether a trustee or not) who is registered as proprietor of an estate or interest in land advises the Registrar‑General in writing that the registration occurred without the person's consent, the Registrar‑General must give written notice of that advice (the disclaimer) to all other persons whose names appear on the certificate of title and who, in the Registrar‑General's opinion, may be affected by the disclaimer. (2a) In the notice the Registrar-General must specify a day, not earlier than 21 days after the day on which the notice would be delivered to the addressee in the ordinary course of post, on or before which the person to whom it is given may lodge with the Registrar-General a notice of objection to the registration of the instrument of disclaimer. (3) If no notice of objection is lodged and the Registrar-General is satisfied that the disclaimant was registered without the disclaimant's consent, the Registrar-General must give effect to the disclaimer by making such entries, alterations and corrections in the Register Book as are necessary for that purpose, and by cancelling any certificate which it is necessary to cancel. (4) If no notice of objection is lodged but the Registrar-General is not satisfied that the disclaimant was registered without his or her consent— (a) the Registrar‑General must not take steps to give effect to the disclaimer except in accordance with an order of the Court under subsection (6); and (b) the Registrar‑General must give the disclaimant written notice that he or she does not intend to give effect to the disclaimer except in accordance with such an order. (5) If a notice of objection is lodged on or before the day specified by the Registrar‑General— (a) the Registrar‑General must not take steps to give effect to the disclaimer except in accordance with an order of the Court under subsection (6); and (b) the Registrar‑General must give the disclaimant written notice of the objection. (6) A disclaimant who has received a notice under subsection (4)(b) or (5)(b) may apply to the Court for an order that the Registrar‑General take such action as is necessary to give effect to the disclaimer and on such an application the Court may make any order it considers just. (7) Nothing done under this section releases a person from any trust or other liability, if the person has acted in the trust or by his or her own act incurred the liability. 170—Transmission by bankruptcy or statutory assignment Upon the registered proprietor of any estate or interest in land becoming bankrupt or making a statutory assignment, the Official Receiver (if no trustee has been appointed) or the trustee of such bankrupt or assignor shall be entitled to be registered as proprietor of such estate or interest. 171—Transmission to be recorded in Register Book The Registrar-General shall in any such case, upon being furnished with evidence of the bankruptcy and the non-appointment of a trustee, or of the appointment of or assignment to the trustee, accompanied by an application in the appropriate form executed by the Official Receiver or trustee, to be registered as proprietor of the estate or interest to be therein specified and described, make a record in the Register Book of the bankruptcy or the appointment of or assignment to the trustee, as the case may require, and upon such record being made the Official Receiver or trustee shall be the registered proprietor of the estate or interest of the bankrupt or assignor in such land. 172—Proceedings in case assignment declared void If any such statutory assignment shall afterwards be declared fraudulent and void by any Court having jurisdiction in bankruptcy, and the assignor shall thereupon become bankrupt, the Registrar-General shall, upon being furnished with evidence thereof, and of the appointment or non-appointment of a trustee under such bankruptcy, enter in the Register Book a memorandum notifying the same, and thereupon the Official Receiver, or the trustee under such bankruptcy, as the case may be, shall be the registered proprietor of the estate and interest of the bankrupt and of the trustee under such assignment in the land. 173—Bankruptcy or assignment of lessee (1) In any case where the registered proprietor of a lease has heretofore, or shall hereafter, become bankrupt, or has heretofore made or shall hereafter make, a statutory assignment— (a) If lease not subject to mortgage or encumbrance if the lease is not mortgaged or encumbered under this Act, the Registrar‑General must, on the application in writing of the lessor (being a lessor in possession of a statement, signed by the Official Receiver, or by the trustee under the bankruptcy or assignment, certifying his or her refusal to accept the lease), make a record in the Register Book of the refusal, and the record will then operate as a surrender of the lease; (b) Mortgagee or encumbrancee of the leasehold interest of a bankrupt or assignor may be entered as transferee of a lease if such lease be mortgaged or encumbered, the Registrar-General shall, upon the application in writing of any mortgagee or encumbrancee, accompanied by a statement in writing signed by the Official Receiver, or the trustee under such bankruptcy or assignment, certifying his refusal to accept such lease, or by proof that the Official Receiver or trustee has neglected or refused to certify such refusal or to become registered as proprietor of such lease within one month after being thereunto required by notice in writing given to him by the mortgagee or encumbrancee, enter in the Register Book a note of such refusal or neglect, and such entry shall operate as a foreclosure, and the estate or interest of the bankrupt or assignor in such lease shall thereupon vest in such mortgagee or encumbrancee, free from all other charges subsequent to his mortgage or encumbrance, and such mortgagee or encumbrancee shall thereupon be deemed to be the registered proprietor of such estate or interest, and shall, while he remains such registered proprietor, be subject to and liable for the same requirements and liabilities to which he would have been subject and liable if named in the lease originally as lessee; (c) Protection to subsequent mortgagees and encumbrancees no such entry shall be made unless it be proved to the satisfaction of the Registrar-General that the applicant mortgagee, or encumbrancee, has given fourteen days' notice in writing of his intended application to every subsequent mortgagee or encumbrancee of the lease, or has obtained his written consent; and any such subsequent mortgagee or encumbrancee shall be entitled to pay to the applicant mortgagee or encumbrancee the amount due to him under his mortgage or encumbrance, with costs, at any time before foreclosure, and shall thereupon be entitled to a transfer from him of such mortgage or encumbrance; (d) Where Official Receiver, trustee, and mortgagee neglect to become proprietors if the Official Receiver or the trustee under the bankruptcy or assignment shall certify his refusal to accept the lease, or shall neglect or refuse to become registered as proprietor of the lease, within, one month after having been thereunto required by notice in writing given to him by the lessor, and the mortgagees or encumbrancees (if any) of the lease shall neglect or refuse to have an entry operating as a foreclosure made in the Register Book under the provision in that behalf hereinbefore contained within the period of two months after having been thereunto required by notice in writing given to them by the lessor, the Registrar-General shall, upon the application in writing of the lessor, and, upon proof of such certificate or such neglect or refusal as aforesaid, enter in the Register Book a note of such neglect or refusal, and every such entry shall operate as a surrender of such lease. (2) A lessor, mortgagee or encumbrancee must retain a copy of any document used for the purpose of fulfilling his or her obligations under subsection (1) for the period prescribed by the regulations. 174—Entry of surrender or foreclosure not to prejudice cause of action Under the preceding provisions as regards a lessee becoming bankrupt or making a statutory assignment, no entry of surrender or foreclosure respectively shall prejudice any cause of action in respect of any breach or non-observance of any covenants in such lease, encumbrance, or mortgage respectively contained or implied which shall have accrued previously to such lessee becoming bankrupt or making a statutory assignment. 175—Transmission of estate of deceased persons On the death of the registered proprietor of any estate or interest in land, his estate or interest shall be transmitted to his executor or administrator, or to the Public Trustee in any case where the Court shall make an order authorising the Public Trustee to administer the estate of the deceased registered proprietor. 176—Application to be made in such case The executor, administrator or Public Trustee shall, before dealing with such estate or interest, make application in writing to the Registrar-General to be registered as proprietor, and shall produce to the Registrar-General the probate or letters of administration, or the order of the Court authorising the Public Trustee to administer the estate of the deceased registered proprietor, or a copy of the probate, letters of administration, or order, as the case may be. 177—Particulars of application to be recorded The Registrar-General must record details relating to the application in the Register Book. 178—Effect of such entry Upon such entry being made in the Register Book, the executor, administrator, or Public Trustee, as the case may be, shall be the registered proprietor of such estate or interest, and his title shall relate back to and take effect from the date of the death of the deceased registered proprietor. 179—Where 2 or more executors or administrators, all must concur Where probate or letters of administration shall be granted to more persons than one, all of them for the time being shall concur in every instrument relating to the land of the deceased registered proprietor. 180—Person registered in place of deceased, bankrupt, or assigning proprietor, to be proprietor of land for purpose of dealing Any person registered in place of a deceased registered proprietor, or as Official Receiver or as trustee of a registered proprietor becoming bankrupt or making a statutory assignment, shall hold the land in respect of which he is so registered upon the trusts, and for the purposes for which the same is applicable by law; but shall, for the purpose of any dealing with such land, be deemed to be the absolute proprietor thereof. 181—Proceedings when executor etc refuse to transfer Whenever an executor, or administrator, or the Public Trustee, is registered as proprietor of any land, and shall refuse, or, after tender of a transfer, unnecessarily delay to transfer such land to the devisee, next of kin, heir-at-law, or other person entitled thereto, the person claiming to be entitled to the land may apply to the Court for an order that the executor, administrator, or Public Trustee shall transfer the said land to him. 182—Court may order transfer to person entitled The Court may either refuse such application, with or without costs, to be paid by the applicant, or may make an order for the transfer, and may direct the transferor personally to pay all the costs of such application and any damages the person aggrieved may have sustained, or may order such costs to be paid out of the estate of the deceased registered proprietor, or in such other manner as the Court may think proper. 183—Court may decide question of title etc The Court may, on any such application, decide on questions relating to the title of any person party to the application or proceeding, and generally may decide any question that it may be necessary or expedient to decide for the purpose of ordering the land to be transferred, or may direct an action to be brought or an issue to be tried in which the rights of the parties may be decided, or any question of law settled. 184—Order of Court vesting land Where the registered proprietor of land holds the land on trust and the Court, by order, vests the land in another person, the Registrar-General must, on being served with a copy of the order, enter details relating to the order in the Register Book and on such entry being made the land will vest in the new proprietor. 185—Action may be brought by person claiming beneficial interest in name of trustee Every trustee who shall be registered as proprietor of any land, shall, on being indemnified, be bound to allow his name to be used by any beneficiary, or person claiming an estate or interest in the land, as plaintiff or defendant in any action for recovery of possession of the land or any part thereof. And, in case there shall be any dispute as to the sufficiency of any indemnity, the same shall be decided by the Master of the Court. 186—Purchases from registered proprietor not to be affected by notice No person contracting or dealing with, or taking or proposing to take a transfer or other instrument from the registered proprietor of any estate or interest in land shall be required, or in any manner concerned, to inquire into or ascertain the circumstances under, or the consideration for, which such registered proprietor or any previous registered proprietor of such estate or interest is or was registered, or to see to the application of the purchase-money, nor be affected by notice direct or constructive of any trust or unregistered interest, any law or equity to the contrary notwithstanding. 187—Except in case of fraud The last preceding section shall not protect any person who has acted fraudulently or been a party to fraud, but the contracting, or dealing, or taking, or proposing to take a transfer or other instrument as aforesaid, with actual knowledge of any trust, charge, or unregistered instrument, shall not of itself be imputed as fraud. 188—Registration of survivor of joint proprietors, and of remainder-man entitled to estate in possession Upon the death of any person registered together with any other person as joint proprietor of any estate or interest in land, or when the life estate in respect of which any certificate has been issued has determined, and the registered estate next in remainder or reversion has become vested in possession, or the person to whom such certificate for a life estate has been issued has become entitled to the land for an estate in fee-simple in possession, the Registrar-General shall, upon the application of the person entitled, and upon proof to his satisfaction of any such occurrence as aforesaid, make an entry thereof in the Register Book, and thereupon such person shall be the registered proprietor of the estate or interest to which he is entitled, as if the same had been transferred to him.