Div 3Purchase and sale

Division 3—Purchase and sale 20—Power of trustees for sale to sell by auction and convey and to set apart roads and reserves (1) Where a trust for sale or a power of sale of property is vested in trustees, they may sell or concur with any other person in selling all or any part of the property, either subject to prior charges or not, and either together or in lots, by public auction or by private contract, at one time or at several times, subject to any such condition respecting title or evidence of title or other matter as the trustees think fit, with power to vary any contract for sale, and to buy in at any auction, or to rescind any contract for sale, and to re-sell, without being answerable for any loss. (2) For the purpose of completing any such sale as aforesaid, the trustees shall have full power to convey or otherwise dispose of the property in question, either by way of revocation and appointment of uses, or otherwise, as may be necessary. (2a) Where the property sold or offered for sale is land the trustees may set apart or dedicate any land being portion of the trust property as roads, streets, passages, thoroughfares, squares, gardens, and reserves and for such purposes may without receiving any consideration vest the land comprising such roads, streets, passages, thoroughfares, squares, gardens and reserves in the Crown or any municipal corporation, municipal council, district council or in any public authority or other person, to be held by the Crown or the corporation, council, public authority or person for the purpose for which it was set apart. (3) This section applies only if and as far as a contrary intention is not expressed in the instrument creating the trust or power, and shall have effect subject to the terms of that instrument and to the provisions therein contained. (4) This section applies only to trusts and powers created by an instrument coming into operation after the twenty-first day of October, 1862. 21—Power to sell subject to depreciating conditions (1) No sale made by a trustee shall be impeached by any beneficiary upon the ground that any of the conditions subject to which the sale was made were unnecessarily depreciatory, unless it also appears that the consideration for the sale was thereby rendered inadequate. (2) No sale made by a trustee shall, after the execution of the conveyance, be impeached against the purchaser upon the ground that any of the conditions subject to which the sale was made were unnecessarily depreciatory, unless it appears that the purchaser was acting in collusion with the trustee at the time when the contract for sale was made. (3) No purchaser, upon any sale made by a trustee, shall be at liberty to make any objection against the title upon the ground aforesaid. (4) This section applies only to sales made after the twenty-third day of December, 1893. 23—Power to take mortgage for part purchase money (1) A trustee on the sale of trust property may leave unpaid purchase-money thereof invested upon the security of the property sold to the extent to which, if the trustee were not the vendor thereof, such property would be a proper security for the investment of the trust funds. (2) This section applies to trusts whether created before or after the commencement of this Act. 23A—Deferred payment on sale of land (1) A trustee for sale may sell land on terms of deferred payment or otherwise. (2) The terms of deferred payment may provide either for the purchase money being paid by instalments, or for the unpaid purchase money being secured by mortgage. (3) If the purchase money is to be paid by instalments, the terms upon which the land is sold shall, in addition to such other provisions as the trustee deems proper, include provisions for giving effect to the following: (a) That part of the purchase money shall be paid on the execution of the contract of sale; (b) That the balance of the purchase money shall be payable in instalments, the first not later than three years from the date of the contract of sale and the others at intervals of not more than a year being from the date on which the first instalment is payable, and shall bear interest payable half-yearly or oftener on the amount from time to time unpaid; (c) That the whole of the purchase money and interest shall be payable within a period not exceeding ten years from the date of the contract of sale; (d) That if any instalment or interest or part thereof is in arrear and unpaid for six months or for such less period as may be specified, the whole of the purchase money and interest thereon calculated up to the day of payment shall become due and payable; (e) That the purchaser will maintain and protect the land and all buildings (if any) thereon and keep all such buildings insured against loss or damage by fire to the full insurable value thereof. (4) If the unpaid purchase money is to be secured by mortgage, the terms upon which the land is sold shall, in addition to such other provisions as the trustee deems proper, include provisions for giving effect to the following: (a) That part of the purchase money shall be paid on the execution of the contract of sale; (b) That the unpaid purchase money shall be secured by a registered mortgage of the land sold, with or without the security of any other property, and shall bear interest payable half-yearly or oftener on the amount from time to time unpaid; (c) That the mortgage shall contain covenants by the mortgagor to pay the principal money secured and the interest thereon, to maintain and protect the property, and to keep all buildings, if any, thereon insured against loss or damage by fire to the full insurable value thereof. (5) Whether the purchase money is to be paid by instalments or the unpaid purchase money is to be secured by mortgage the trustee shall not be deemed to be lending money within the meaning of section 10 of this Act so as to be bound to act in accordance with the provisions of that section, and shall not be liable for any loss which may be incurred by reason only of the fact that the part of the purchase money to be paid by instalments or secured by mortgage is insufficiently secured. (6) The part of the purchase money to be paid on the execution of the contract of sale shall not be less than the sum which a person acting with prudence would, if the land were his own, have accepted in the circumstances in order to sell the land to the best advantage. (7) The trustee shall not be bound to require payment of any greater part of the purchase money before letting the purchaser into possession, or before conveying the land and taking a mortgage back, than a person acting with prudence would, if the land were his own, have considered sufficient: Provided that the trustee shall not convey the land and take a mortgage back until at least one-tenth of the purchase money has been paid. (8) Notwithstanding that the purchase money is to be paid by instalments, the trustee may at any time after one-tenth of the purchase money has been paid convey the land and take a mortgage back in any case where a person acting with prudence would, if the land were his own, have been willing in the circumstances to do so; and in any such case the mortgage shall be in accordance with paragraphs (b) and (c) of subsection (4) of this section, and the provisions of subsection (5) of this section shall apply to it. (9) Any mortgage under this section may be for any period not exceeding ten years from the date of the contract of sale. (10) The trustee may, on such terms, if any, as he deems proper by writing waive or vary any right arising from failure to comply with any term of the contract of sale or of any mortgage under this section within the proper time, and may exercise in relation to any such mortgage or agreement any of the powers conferred by sections 13A, 13B, and 13C of this Act. (11) Where the sum payable under or secured by any such agreement or mortgage (being an agreement or mortgage of or in respect of real property whether freehold or leasehold) does not exceed two-thirds of the whole purchase price, or has been reduced by payment to an amount not exceeding two-thirds of the whole purchase price, that agreement or mortgage, as the case may be, may be held and dealt with by the trustee as though it were an investment authorised by law. (12) Where the sale is made under the order of the Supreme Court, the provisions of this section shall apply, unless the Supreme Court, or, on any reference to the Master, the Master shall otherwise direct. (13) This section applies only if and as far as a contrary intention is not expressed in the instrument, if any, creating the trust, and shall have effect subject to the terms of that instrument and to the provisions therein contained. (14) This section applies to trusts created either before or after the commencement of the Trustee Act Amendment Act 1941. 23B—Sale after right of redemption barred (1) Where any property which has been mortgaged to a trustee becomes vested in the trustee discharged from the equity of redemption, the trustee shall hold the property as an authorised investment on trust for sale, with power to postpone the sale for such a period as he may think proper. (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. (3) This section shall not affect any rule of law relating to the apportionment of capital and income between tenant for life and remainderman. (4) 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, or any power of the trustee to appropriate the property in specie to any beneficiary. (5) This section applies whether the property is discharged from the equity of redemption by virtue of the statutes of limitation or an order for foreclosure or the purchase of the equity of redemption or otherwise. 23C—Power to purchase equity of redemption in lieu of foreclosure A trustee unless expressly forbidden by the instrument, if any, creating the trust, in lieu of proceeding to foreclosure may with moneys held upon the same trusts as the mortgage debt purchase the equity of redemption of land in the State the subject of a mortgage held by the trustee under which default has been made: Provided that— (a) before purchasing any such equity of redemption the trustee shall obtain a report as to the value thereof from a person whom the trustee reasonably believes to be competent to give a report upon that value, and who is employed independently of the owner of the equity of redemption; and (b) the price paid for the equity of redemption shall not be more than the value thereof as so reported to the trustee.