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[F.A.Q.]
Vanuatu Consolidated Legislation |
Commencement:
1 March 1984
LAWS
OF THE REPUBLIC OF
VANUATU
REVISED
EDITION 1988
CHAPTER 163
Act
4 of 1983ARRANGEMENT OF SECTIONS
SECTION
PART
I
Preliminary
1.
Interpretation
PART
II
Land Records
Office and Director's Powers
2. Land Records
Office
3. Appointment of Director and
other officers
4. The Land Leases
Register
5. Manner of
registration
6. New editions of
register
7. Cancellation of obsolete
entries
8. General powers of
Director
9. Indemnity of
officers
PART
III
Plans,
Combination and Subdivision and Party Walls
10. Land survey
plans
11. Correction of land survey
plans
12. Combination and
subdivision
13. Party
Walls
PART
IV
Effect of
Registration
14. Interest conferred by
registration
15. Rights of
proprietor
16. Voluntary
transfer
17. Overriding
interests
18. Entries to constitute
actual notice
PART
V
Searches and
Certified Copies
19.
Searches
20. Certified copies of
registers and documents
21.
Evidence
PART
VI
Dispositions-General
22. Instruments
ineffectual until registered
23.
Protection of persons dealing in registered interests in
land
24. Exoneration of the
Director
25. Additional fee for
delayed registration
26. Power to
compel registration
27. Priority of
registered instruments
28. Stay of
registration
29. Merger of registered
interests
30.
Corporations
PART
VII
Leases
31.
Leases
32. Term of a
lease
33. Periodic
tenancies
34. Commencement of
leases
35. Registration of
leases
36. Lessor’s consent to
dealing with lease
37. Holding
over
38. Purpose and development
conditions to be specified
39. Rent
review
40. Agreements implied in
leases on the part of the lessor
41.
Agreements implied in leases on the part of
lessee
42. Meaning of “in good
repair”
43. Lessor’s right
of forfeiture
44. Effect of forfeiture
on subleases
45. Notice before
forfeiture
46. Relief against
forfeiture
47. Variation of agreements
and conditions of a lease
48.
Subleases
49. Surrender of
leases
50. Determination of
leases
PART
VIII
Mortgages
51. Form and effect of
mortgages
52. Supplementary provisions
relating to mortgages
53. Further
advances
54. Variation of
mortgages
55. Discharge of
mortgage
56. Obligations implied in
mortgages
57. Mortgagee's consent to
transfer etc.
58. Action for recovery
of debt
59. Enforcement of
mortgages
PART
IX
Transfers
60.
Transfer
61. Restriction on
transfer
62. Matters implied in
transfer
63. Entitlement of a
transferee of a mortgage
64.
Registration of transfer of
mortgage
65. Transfer of lease subject
to sublease
66. Transfer of
part
PART
X
Easements,
Restrictive Agreements, Profits and Licences
67.
Easements
68. Restrictive
agreements
69.
Profits
70. Release and extinguishment
of easements, restrictive agreements and
profits
71. Extinguishment and
modification of easements, restrictive agreements and
profits
72. Licences
PART
XI
Co-proprietorship
73.
Co-proprietorship
74. Proprietorship
in common
75. Joint
proprietorship
PART
XII
Instruments and
Agents
76. Form of
instruments
77. Execution of
instruments
78. Verification of
execution
79.
Stamps
80. Disposal of
instruments
81. Persons who are
mentally infirm
82. Powers of
attorney
83. Effect of registered
powers of attorney
PART
XIII
Transmission
and Trusts
84. Transmission on death
of sole proprietor or proprietor in
common
85. Effect of transmission on
death
86.
Wills
87. Transmission on
bankruptcy
88. Transmission in other
cases
89.
Trusts
90. Survivor of
trustees
91. Statutory
trusts
92. Transmission on death of a
joint proprietor
PART
XIV
Cautions
93. Lodging of
cautions
94. Effect of
cautions
95. Director's
caution
96. Duration of
cautions
97. Application for removal
of caution
98.
Definition
PART
XV
Rectification
and Indemnity
99. Rectification by the
Director
100. Rectification by the
Court
101.
Indemnity
102. Amount of
indemnity
103. Procedure for claiming
indemnity
104. Recovery of indemnity
paid
105. Errors in
survey
PART
XVI
Appeals
106. Appeals against the
Director
PART
XVII
Miscellaneous
107. Presumption as to
age
108. Service of
notices
109. Offences
PART
XVIII
Fees and
Rules
110.
Fees
111.
Rules
112. Provisions of this Act to
prevail
SCHEDULE-Registration
Fees
-------------------------------------------
LAND LEASES
To
provide for the creation and disposition of leases of land, for their
registration and for matters connected therewith.
PART
I
PRELIMINARY
INTERPRETATION
1.
In this Act unless the context otherwise requires-
"Act" means the Land Reform Act, Cap. 123;
"corporation" means any body corporate whether incorporated in Vanuatu or elsewhere;
"the Court" means the Supreme Court;
"dealing" includes disposition and transmission;
"Director" means the Director of Land Records appointed under section 3;
"disposition" means any act inter vivos by a proprietor whereby his rights in or over his registered lease, sublease or mortgage are affected, but does not include an agreement to transfer, sublease or mortgage;
"easement" means a right attached to the land comprised in a registered lease which allows the proprietor thereof to either use the land comprised in another registered lease in a particular manner or to restrict its use to a particular extent, but does not include a profit;
"encumbrance" means a liability to which a registered lease is subject and includes a sublease, mortgage, easement, restrictive agreement and a profit;
"file" means place in the relevant parcel file;
"guardian" means a person who, according to law, is empowered to act on behalf of a person who is incapable, by reason of mental infirmity, of so acting;
"improvements" includes the reclaiming of land from the sea, clearing levelling or grading of land, drainage or irrigation of land, reclamation of swamps, surveying and making boundaries, erection of fences of any description, landscaping of land, planting of long-lived crops, trees or shrubs, laying-out and cultivation of nurseries, buildings and structures of all descriptions which are in the nature of fixtures, fixed plant and machinery, roads, yards, gates, bridges, culverts, ditches, drains, soakaways, cesspits, septic tanks, water tanks, water, power and other reticulation systems, dips and spray races for livestock;
"instrument" includes any deed, judgment, decree, order or other document requiring or capable of registration under this Act;
"interest" in relation to land includes a lease, sublease, mortgage, easement, restrictive agreement and profit; and "person interested" has a corresponding meaning;
"land" includes land above the mean high water mark, all things growing on land and buildings and other things permanently affixed to land but does not include any minerals (including oils and gases) or any substances in or under land which are of a kind ordinarily worked for removal by underground or surface working;
"Land Leases Register" means the Land Leases Register established under section 4;
"lease" means the grant with or without consideration, by the owner of land of the right to the exclusive possession of his land, and includes the right so granted and the instrument granting it, and also includes a sublease but does not include an agreement for lease;
"lessee" means the proprietor of a lease or his successor in title;
"lessor" means the person who has granted a lease or his successors in title;
"licence" means a permission by the proprietor of a registered lease which allows the licensee to do some act in relation to that lease which would otherwise be a trespass but does not include an easement or a profit;
"mortgage" means an interest in a registered lease given as security for the payment of money or money's worth, and includes a sub-mortgage and the instrument creating a mortgage;
"parcel" means an area of land separately delineated by a survey plan prepared by or under the direction of the Director of Surveys;
"periodic tenancy" means a tenancy from year to year, half year to half year, quarter to quarter, month to month, week to week or the like;
"personal representative" means the executor of a will or administrator of an estate;
"profit" means the right to go on land comprised in a registered lease held by another and take a particular substance from that land whether it is the soil or products of the soil and includes the taking of wild animals;
"proprietor" means:
(a) in relation to a registered lease the person named in the register as the proprietor thereof; and
(b) in relation to a mortgage of a registered lease the person named in the register as the person in whose favour the mortgage is made;
"the register" means the leaf of the Land Leases Register kept in respect of a registered lease;
"to register" means to make an entry in the Land Leases Register under this Act and "registered", "unregistered" and "registration" shall be construed accordingly;
"registrable", in relation to an instrument, means required to be registered or capable of registration under this Act;
"Referee" means the Lands Referee appointed under the Lands Referee Act Cap. 148;
"statutory trusts" means the trusts declared by section 91;
"survey plan" means the plan prepared under section 10;
"transfer" means the passing of an interest by act of the parties and not by operation of law and also the instrument by which such passing is effected;
"transmission" means the passing of an interest from one person to another by operation of law on death or insolvency or otherwise howsoever;
"trust" means any settlement, disposition, act of delivery, declaration, acknowledgment or conduct by which a person (known as trustee) holds or has vested in him property (which is called trust property) for the immediate, prospective, contingent or conditional benefit of a beneficiary or beneficiaries (being a person or persons, whether living or unborn or being a lawful purpose or object) but shall not include a unit trust, or other collective investment scheme;
"valuable consideration" includes marriage, but does not include a nominal consideration;
"will" includes a codicil and any other testamentary instrument.
PART
II
LAND RECORDS
OFFICE AND DIRECTOR'S POWERS
LAND
RECORDS
OFFICE
2.
There shall be maintained in Port Vila a Land Records Office in which shall be
kept-
(a) a register to be known as the Land Leases Register;
(b) parcel files containing the instruments and certified copies of survey plans which support entries in the register;
(c) a book to be known as the presentation book, in which there shall be kept a record of all applications numbered consecutively in the order in which they are presented to the Land Records Office;
(d) an index, in alphabetical order, of the names of the proprietors of registered leases showing the numbers of the titles in which they are interested; and
(e) an index, in alphabetical order, and file of powers of attorney.
APPOINTMENT
OF DIRECTOR AND OTHER
OFFICERS
3.
(1) There shall be appointed a Director of Land Records who shall perform the
duties and exercise the powers given to him by this
Act and who shall be
responsible for administering the Land Records Office in accordance with this
Act.
(2) There may be appointed a
Deputy Director of Land Records and such other officers as may be necessary for
carrying out the provisions
of this
Act.
(3) The Deputy Director shall
have all the powers and may perform all or any of the duties conferred or
imposed on the Director by
this Act or by any orders made
thereunder.
(4) The Director may
in writing authorise any other officer appointed under subsection (2) to
exercise or to perform any of the powers
or duties conferred on the Director by
this Act or by any orders made thereunder, and may at any time revoke or vary
any such authorisation.
(5) The
Director, Deputy Director and every other officer who shall be appointed
pursuant to this section shall be public
officers.
THE
LAND LEASES
REGISTER
4.
(1) The Land Leases Register shall comprise a register maintained in both the
English and French languages in respect of each lease
required to be registered
by this Act.
(2) Each register
shall be divided into three sections as follows-
(a) the property section, containing a brief description of the lease together with particulars of its appurtenances; and
(b) the proprietorship section, containing the name, postal address in Vanuatu of the proprietor and a note of any caution or restriction affecting his right of disposition; and
(c) the encumbrances section, containing a note of every encumbrance affecting the lease required by this Act or any other law, to be registered.
MANNER
OF
REGISTRATION
5.
Registration shall be effected by an entry in the register in such form as the
Director may from time to time direct and by the cancellation
of the entry, if
any, which it
replaces.
NEW
EDITIONS OF
REGISTER
6.
The Director may at any time open a new edition of a register showing only
subsisting entries and omitting therefrom all entries
which have ceased to have
any
effect.
CANCELLATION
OF OBSOLETE
ENTRIES
7.
The Director may cancel any entry in the register which he is satisfied has
ceased to have any
effect.
GENERAL
POWERS OF
DIRECTOR
8.
The Director may exercise the following powers in addition to any other powers
conferred on him by this Act-
(a) he may require any person to produce any instrument or other document or plan relating to the registered interest and that person shall produce the same;
(b) he may summon any person to appear and give any information or explanation respecting a registered interest, and such person shall appear and give such information or explanation;
(c) he may refuse to proceed with any registration if any instrument, or other document, or plan, information or explanation required to be produced or given is withheld or any act required to be performed under this Act is not performed;
(d) he may administer oaths or take a declaration in lieu thereof, and may require that any proceeding, information or explanation affecting registration shall be verified on oath or by declaration;
(e) he may order that the costs, charges and expenses incurred by him or by any person in connection with any investigation or hearing held by him for the purposes of this Act shall be borne and paid by such persons and in such proportions as he may think fit;
(f) he may, at his discretion, dispense, with the production of any signature, or the supply of any information or any advertisement or notice required by this Act; and
(g) he may state any case or reserve any question for consideration by the Court.
INDEMNITY
OF
OFFICERS
9.
The Director shall not, nor shall any other officer of the Land Records Office,
be liable to any action or proceedings for or in
respect of any act or matter
done or omitted to be done in good faith in the exercise or intended exercise of
his powers under this
Act or any order made thereunder.
PART
III
PLANS,
COMBINATION AND SUBDIVISION AND PARTY WALLS
LAND
SURVEY
PLANS
10.
(1) The Director of Land Surveys upon application, and on payment of the
prescribed fee, shall prepare or cause to be prepared in
respect of each parcel,
the subject of a lease required to be registered a survey plan, the original
copy of which shall be retained
by him, and certified copies of which signed by
the parties to the instruments shall be attached to the original instrument of
lease
to be presented for registration and to the copies of the instrument to be
retained by the lessor and the
lessee.
(2) The plan shall bear a
distinguishing number and shall be referenced to the cadastral
plan.
CORRECTION
OF LAND SURVEY
PLANS
11.
If it appears to the Director that there is any error in a survey plan he may,
after taking such steps as he thinks fit to bring
to the notice of any person
shown by the register to be interested his intention so to do and giving every
such person an opportunity
to be heard, require the Director of Land Surveys to
correct the error:
Provided that
the Director may without such notice, require the Director of Land Surveys to
correct the survey plan whenever such
correction does not materially affect the
interest of any
person.
COMBINATION
AND
SUBDIVISION
12.
(1) Where registered leases granted by the same lessor, free from any registered
encumbrances other than the agreements and liabilities
contained or implied in
the lease, of contiguous parcels are held by the same proprietor, upon
application by him accompanied by
a surrender of the existing leases in the
prescribed form and a new lease in the prescribed form the Director shall effect
combination
by closing the register relating to the surrendered leases and
opening a new register in respect of the new
lease.
(2) Subject to section
49(2) upon application by the proprietor of a registered lease for the division
of the land comprised in his
lease into two or more parcels accompanied by a
surrender of the existing lease in the prescribed form and new leases in the
prescribed
form the Director shall effect the division by closing the register
relating to the surrendered lease and opening new registers in
respect of the
new leases resulting from the
division:
Provided
that-
(a) a proprietor of a lease shall not be entitled to subdivide the land comprised in his lease without the written consent of the Director of Land Surveys;
(b) any person aggrieved by a decision of the Director of Land Surveys refusing consent under paragraph (a) may appeal to the Court which may make such order as it thinks just.
PARTY
WALLS
13.
(1) Where any wall or structure lies along the boundary of two parcels which are
comprised in separate registered leases, that wall
or structure shall be deemed
to be severed vertically in two and the land comprised in each lease shall
include the appropriate vertical
part
thereof.
(2) Either of the two
proprietors of the leases may apply to the Director for the registration of the
wall or structure as a party
wall or party structure; and the Director may,
after giving notice of the application to the other proprietor and affording him
an
opportunity to be heard, register it as
such.
(3) Where a wall or
structure is registered as a party wall or party structure, each proprietor
shall have such rights to support
and use over the part thereof which is not
comprised in his parcel as may be requisite.
PART
IV
EFFECT OF
REGISTRATION
INTEREST
CONFERRED BY
REGISTRATION
14.
Subject to the provisions of this Act, the registration of a person as the
proprietor of a lease shall vest in that person the leasehold
interest described
in the lease together with all implied and expressed rights belonging thereto
and subject to all implied and expressed
agreements, liabilities and incidents
of the
lease.
RIGHTS
OF
PROPRIETOR
15.
The rights of a proprietor of a registered interest, whether acquired on first
registration or subsequently for valuable consideration
or by an order of the
Court shall be rights not liable to be defeated except as provided in this Act,
and shall be held by the proprietor
together with all rights, privileges and
appurtenances belonging thereto, free from all other interests and claims
whatsoever, but
subject-
(a) to the encumbrances and to the conditions and restrictions shown in the register;
(b) unless the contrary is expressed in the register, to such of the liabilities, rights and interests as are declared by this Act not to require registration and are subsisting:
Provided
that nothing in this section shall be taken to relieve a proprietor from any
duty or obligation to which he is subject as
trustee.
VOLUNTARY
TRANSFER
16.
Every proprietor who has acquired a registered interest by transfer without
valuable consideration, shall hold it subject to any
unregistered rights or
interests subject to which the transferor held it and subject also to the
provisions of any law relating to
bankruptcy or the winding up of companies, but
save as aforesaid, such transfer shall in all respects have the same effect as a
transfer
for valuable
consideration.
OVERRIDING
INTERESTS
17.
Unless the contrary is expressed in the register, the proprietor of a registered
lease shall hold such lease subject to such of
the following overriding
liabilities, rights and interests as may, for the time being, subsist and affect
the same, without their
being noted on the register-
(a) rights of way, rights of water, easements and profits subsisting at the time of first registration of that lease under this Act;
(b) natural rights of light, air, water and support;
(c) rights to sites of trigonometrical stations and navigational aids conferred by any law;
(d) rights of compulsory acquisition, resumption, entry, search and user conferred by any law;
(e) the interest of a tenant in possession under a sublease for a term of not more than 3 years or under a periodic tenancy;
(f) any charge for unpaid rates or other moneys, which, without the condition of registration under this Act, are expressly declared by any law to give rise to a charge on land;
(g) the rights of a person in actual occupation of land save where enquiry is made of such person and the rights are not disclosed; and
(h) rights and powers relating to electric supply lines, telegraph and telephone lines or poles, pipelines, aqueducts, canals, weirs, dams, roads and ancillary works conferred by any law:
Provided
that the Director may direct registration of any of the liabilities rights and
interests hereinbefore defined in such manner
as he may think
fit.
ENTRIES TO
CONSTITUTE ACTUAL
NOTICE
18.
Every proprietor acquiring any registered interest shall be deemed to have had
notice of every entry in the register relating to
the interest and subsisting at
the time of acquisition.
PART
V
SEARCHES AND
CERTIFIED COPIES
SEARCHES
19.
Any person upon application in the prescribed form and upon payment of the
prescribed fee, may search any register or parcel file
or both during the hours
of public
business.
CERTIFIED
COPIES OF REGISTERS AND
DOCUMENTS
20.
On application in the prescribed form and on payment of the prescribed fee, the
Director shall furnish to any person a copy of any
register, plan, filed
instrument or document certified by the Director to be a true
copy.
EVIDENCE
21.
(1) Every document purporting to be signed by the Director shall, in all
proceedings be presumed to be so signed until the contrary
is
proved.
(2) Every copy or extract
from a document certified by the Director to be a true copy or extract shall, in
all proceedings, be received
as prima facie evidence of the contents of the
document.
(3) Every entry or note
in or on any register shall, subject to the provisions of sections 99 and 100,
be received in all proceedings
as conclusive evidence of the matter or
transaction which it records.
(4)
No process for compelling the production of the register or of any filed
instrument, plan or document shall issue from the Court
except with the leave of
the Court which leave shall not be granted if a certified copy will suffice and
any such process, if issued,
shall bear thereupon a statement that it is issued
with the leave of the Court.
PART
VI
DISPOSITIONS -
GENERAL
INSTRUMENTS
INEFFECTUAL UNTIL
REGISTERED
22.
(1) No registered lease or mortgage shall be capable of being created or
disposed of except in accordance with this Act. Every attempt
to create or
dispose of a registered lease or mortgage or to create, extinguish, transfer,
vary or affect, any right or interest
in a registered lease or mortgage
otherwise than in accordance with this Act shall be ineffectual to create, or
dispose of a registered
lease or mortgage or to create, extinguish, transfer,
vary or affect any right or interest in the lease or
mortgage.
(2) Subject to the
provisions of subsection (3) every instrument creating or disposing of a
registered lease or mortgage shall be
registered.
(3) It shall not be
necessary to register-
(a) any lease for a period not exceeding 3 years unless it is required to be registered under section 35;
(b) any transfer, mortgage, or other instrument disposing of any lease being a lease for a period not exceeding 3 years which is not registered or required to be registered under section 35;
(c) any will;
(d) any appointment of a personal representative;
(e) any appointment of a trustee in bankruptcy or any receiving order in bankruptcy; or
(f) any order of a court unless the registration thereof or of the effect thereof is specifically required by this Act.
(4)
If requested so to do, the Director shall register such instrument as is
mentioned in subsection (3)(d) or (e) and may register
any other instrument
mentioned in subsection (3) save a will which shall not be capable of
registration.
(5) Nothing in this
section shall be construed so as to prevent any unregistered instrument from
operating as a contract.
(6) The
death of any person by or on behalf of whom any instrument of dealing has been
executed shall not affect the validity thereof
and any such instrument may be
presented for registration as if the death had not
occurred.
PROTECTION
OF PERSONS DEALING IN REGISTERED INTERESTS IN
LAND
23.
(1) No person dealing or proposing to deal for valuable consideration with a
proprietor of a registered interest shall be required
or in any way
concerned-
(a) to inquire or ascertain the circumstances in or the consideration for which such proprietor or any previous proprietor was registered; or
(b) to see to the application of any consideration or any part thereof; or
(c) to search any register kept under any previous law.
(2)
Where the proprietor of such an interest is a trustee, he shall in dealing
therewith, be deemed to be the absolute proprietor
thereof and no disposition by
such trustee to a bona fide purchaser for valuable consideration shall be
defeasible by reason of the
fact that such disposition amounted to a breach of
trust.
EXONERATION
OF THE
DIRECTOR
24.
Where by this Act any person is exonerated from enquiring as to any matter of
fact relating to a registered interest, or to a power
of dealing therewith, or
is protected from the effect of notice of any such matter or fact, then, in
registering any instrument relating
to that interest, the Director shall not be
concerned to make any enquiry or search in relation to that interest which such
person
need not have made nor shall the Director be affected by any notice with
which such person need not have been affected.
ADDITIONAL FEE
FOR DELAYED
REGISTRATION
25.
Where an instrument is presented for registration more than 3 months after the
date of the instrument, then as well as the registration
fee an additional fee
equal to the registration fee shall be
payable.
POWER
TO COMPEL
REGISTRATION
26.
(1) If he is satisfied that any person has failed to register any instrument
which is required to be registered under this Act, the
Director may by notice in
writing order such person to present such instrument for registration and
thereupon the registration fee,
including any additional fee payable under
section 25 shall become due and shall be payable whether the instrument is
presented for
registration or
not.
(2) Any person who without
just cause fails to comply with an order of the Director under subsection (1)
within 1 month of the service
of the notice, shall be liable on conviction to a
fine not exceeding
VT500,000.
PRIORITY
OF REGISTERED
INSTRUMENTS
27.
(1) Subject to section 28, interests appearing in the register shall have
priority according to the order in which the instruments
or applications which
led to their registration were presented in registrable form to the Land Records
Office, irrespective of the
dates of the instruments or applications and
notwithstanding that the actual entry in the register may be
delayed.
(2) All instruments or
applications sent by post or under cover and received during the hours of
business shall be deemed to have
been presented simultaneously immediately
before the closing of the office on that
day.
(3) Where more than one
instrument or application are presented on the same day, or at so short an
interval from each other that in
the opinion of the Director there is doubt as
to their order of priority, the Director may refuse registration until he has
heard
and determined the rights of the parties interested
thereunder.
STAY
OF
REGISTRATION
28.
(1) Any person proposing to deal for value with the proprietor of a registered
interest may, with the consent in writing of such
proprietor, and on stating the
particulars of the proposed dealing, lodge with the Director an application for
a stay of registration
in the prescribed
form.
(2) If, as shown by the
register, the proprietor is free to deal with his interest the Director shall
make an order certifying that
the proprietor is so free and staying registration
of any instrument affecting the interest for 2 months from the date of the
order,
and such order shall be
registered.
(3) If, within the
said period of 2 months, a properly executed instrument effecting the proposed
dealing is lodged for registration
such instrument shall have priority over any
other instrument lodged for registration after the date of the order and shall
be registered
notwithstanding any caution lodged with, or any copy of a writ of
execution or judgment decree or order of any court served on the
Director after
the date of the
order.
MERGER
OF REGISTERED
INTERESTS
29.
Where, upon the registration of a dealing, the interests of-
(a) lessor and lessee; or
(b) mortgagor and mortgagee; or
(c) the proprietor of a lease which is burdened with an easement, profit or restrictive agreement and the proprietor of a lease which benefits therefrom,
vest
in the same proprietor, such interests shall not merge unless a surrender or
discharge is registered or there is a declaration
of merger which may be
contained in the instrument evidencing the
dealing
CORPORATIONS
30.
(1) In favour of any person dealing with a registered interest a corporation
shall be deemed to have the same powers of acquisition
and disposition as a
natural person of full age and legal
capacity.
(2) This section shall
apply to all corporations, whether sole or aggregate, whether created directly
by Act, Order or otherwise,
and notwithstanding any stipulation, restriction or
qualification imposed in the constitution of the corporation or elsewhere.
(3) Nothing in this section shall
be held to diminish the personal liability of any individual or group of
individuals controlling
or responsible for the management of a corporation for
acting in excess of its corporate
powers.
(4) Where a corporation
holds a registered interest in a fiduciary capacity this section shall not be
held to extend the powers of
the corporation in respect of that interest nor
otherwise to affect the liability of the corporation to the beneficiaries for
acting
in excess of these
powers.
(5) An application for
registration of an instrument whereby a corporation acquires a registered
interest shall be accompanied by
such evidence of incorporation or such other
evidence as the Director may require.
PART
VII
LEASES
LEASES
31.
Subject to the provisions of this Act and of any other law, the owner of land
may lease the land or part of it to any person for
a definite
term.
TERM OF A
LEASE
32.
(1) A lease, shall not be granted for a term in excess of 75 years, and if
granted for a lesser term with provision for extension
shall not be capable of
being extended beyond 75
years.
(2) A lease granted in
excess of, or extended beyond, such term, shall be deemed to be for a term of 75
years.
PERIODIC
TENANCIES
33.
(1) Where in any lease the term is not specified and no provision is made for
the giving of notice to determine the tenancy, the
lease shall be deemed to have
created a periodic tenancy.
(2)
Where the owner of land or proprietor of a lease permits the exclusive
occupation of the land or any part thereof by any other
person at a rent but
without any agreement in writing, that occupation shall be deemed to constitute
a periodic tenancy.
(3) The period
of a periodic tenancy created by this subsection shall be the period by
reference to which the rent is payable, and
the tenancy may be determined by
either party giving to the other notice, the length of which shall be not less
than the period of
the tenancy and shall expire on one of the days on which rent
is payable.
(4) No periodic
tenancy shall be capable of registration but for the avoidance of doubt a
periodic tenancy is hereby declared to be
an interest for the purposes of
section
93.
COMMENCEMENT
OF
LEASES
34.
(1) Where the period of a lease is expressed as commencing on a particular day,
that day shall be included in computing that
period.
(2) Where no day of
commencement is named, the period shall be deemed to commence on the date of
first execution of the lease, and
that day shall be included in computing the
period.
(3) Where the period is a
year or a number of years, in the absence of an express agreement to the
contrary, the lease shall last
during the whole anniversary of the day on which
such period
commences.
REGISTRATION
OF
LEASES
35.
A lease for a term exceeding 3 years or which contains an option whereby the
lessee may require the lessor to grant him a further
term or terms which,
together with the original term, exceeds 3 years shall be in the prescribed form
and shall be completed by-
(a) opening a register in respect of the lease in the name of the lessee; and
(b) filing the lease.
LESSOR'S
CONSENT TO DEALING WITH
LEASE
36.
Upon the registration of a lease containing an agreement by the lessee that he
will not dispose of the land leased or any part thereof
or interest comprised
therein without the written consent of the lessor, the agreement shall be noted
in the register of the lease,
and no dealing with the lease shall be registered
until the written consent of the lessor verified in accordance with section 78
has been produced to the
Director.
HOLDING
OVER
37.
(1) Where a person, having lawfully entered into occupation of any land as
lessee, continues to occupy that land with the consent
of the lessor after the
determination of the lease, he shall, subject to any written law and in the
absence of any evidence to the
contrary, be deemed to be a tenant holding the
land on a periodic tenancy on the same conditions as those of the lease, so far
as
those conditions are appropriate to a periodic
tenancy.
(2) For the purposes of
this section, the acceptance of rent in respect of any period after the
determination of the lease shall,
if the former tenant is still in occupation
and subject to any agreement to the contrary, be taken as evidence of consent to
the
continued occupation of the
land.
PURPOSE
AND DEVELOPMENT CONDITIONS TO BE
SPECIFIED
38.
Every lease shall specify-
(a) the purpose and use for which the land is leased; and
(b) the development conditions, if any.
RENT
REVIEW
39.
(1) Notwithstanding anything to the contrary contained in any lease, the rent
reserved under all leases may be reviewed in accordance
with the provisions of
this section and in the following manner-
(a) either the lessor or lessee as the case may be, may initiate the review by serving upon the other party a written notice to review;
(b) such notice shall specify:
(i) the proposed rent (hereinafter referred to as the "new rent"), and
(ii) the date from which the new rent is required to be paid, which date shall not be earlier than 5 years from any of the following events-
(a) the date of the lease; or
(b) the date of the last rent review under this section; or
(c) the date from which there took effect a direction from the Referee that the rent should continue unchanged;
whichever is the later;
and shall be served on the other party not less than 3 months before the date from which the new rent is required to be paid;
(c) The party upon whom the notice to review is served shall within 2 months from receipt of the notice:
(i) signify in writing to the other party acceptance of the new rent; or
(ii) negotiate with the other party a written agreement for a new rent other than that proposed in the notice to review; or
(iii) serve a counter notice on the other party requesting that the Referee reviews the rent;
(d) If the party upon whom a notice to review was served fails within the time specified in paragraph (c) to either signify his acceptance of the new rent or negotiate a written agreement for a new rent or serve a counter notice, in accordance with paragraph (c)(i), (ii) or (iii), as the case may be, the party who initiated the review may, within a period of 1 month thereafter, refer the rent to the Referee for review.
(2)
In reviewing the rent, the Referee shall have regard to the fair open market
rental value of the land at the relevant review date
as if the full term of the
lease had yet to run and shall also have regard to all the terms, conditions and
agreements of the lease
(other than those relating to the rent) on the
assumption that the environment of the leased land is in all respects as it is
or
may reasonably be expected to be as at the date from which the new rent is to
become payable, but disregarding-
(a) any effect on rent of the fact that the lessee or any person claiming through or under him is in occupation of the leased land; and
(b) the value of any improvements on or to the leased land made or carried out, or in respect of which valuable consideration was provided, by the lessee or his predecessors in title.
(3)
This section shall not apply to-
(a) subleases;
(b) leases under which the sole consideration therefor is expressed to be a premium payable at the commencement of the lease;
(c) leases under which the rent is expressed to be an amount per annum determined by reference to the gross takings of an undertaking on the leased land except that any minimum rent reserved may be reviewed under this section.
AGREEMENTS
IMPLIED IN LEASES ON THE PART OF THE
LESSOR
40.
Save as otherwise expressly provided in the lease and subject to any written law
there shall be implied in every lease the following
agreements by the lessor
with the lessee binding the lessor-
(a) that, so long as the lessee pays the rent and observes and performs the agreements and conditions contained or implied in the lease and on his part to be observed and performed, the lessee shall peaceably and quietly possess and enjoy the leased land during the period of the lease without any interruption from or by the lessor or any person rightfully claiming through him;
(b) not to use or permit to be used any adjoining or neighbouring land of which he is the owner or lessee in any way which would render the leased land unfit or materially less fit for the purpose for which it was leased;
(c) where part only of a building is leased, or where a dwelling house is leased furnished, to keep the roof, main walls, main drains, the common passages and common installations in good repair;
(d) where any dwelling house, flat or room is leased furnished, that such house, flat or room is fit for habitation at the commencement of the tenancy;
(e) that if at any time the leased land or any part thereof is destroyed or damaged by earthquake, hurricane, cyclone, fire, civil commotion or accident not attributable to the negligence of the lessee, his servants or his licensees so as to render the leased land or any part thereof wholly or partially unfit for occupation or use, the rent or a just proportion thereof according to the nature and extent of the damage sustained shall be suspended and cease to be payable until the leased land has again been rendered fit for occupation and use; but that if the leased land has not been so rendered fit for occupation and use within 6 months of its destruction or damage as aforesaid, the lessee may at his option, and on giving 1 month's written notice of his intention so to do, determine the lease; and
(f) such other agreements as the Minister may have prescribed by Order prior to the execution of the lease.
AGREEMENTS
IMPLIED IN LEASES ON THE PART OF
LESSEE
41.
Save as otherwise expressly provided in the lease and subject to any written
law, there shall be implied in every lease the following
agreements by the
lessee with the lessor binding the lessee-
(a) to pay the rent reserved by the lease at the times and in the manner specified therein;
(b) to pay all rates, taxes and other outgoings which are at any time payable in respect of the leased land during the continuance of the lease unless the same are payable exclusively by the lessor by virtue of any law;
(c) except where part only of a building is leased, or where a dwelling-house is leased furnished, to keep all buildings comprised in the lease and all boundary marks in good repair;
(d) where part only of a building is leased or where a dwelling-house is leased furnished, to keep the leased land except the roof, main walls, main drains, the common passages and common installations in good repair;
(e) where the lease is of furnished premises, to keep the furniture in as good a condition as it was at the commencement of the period, fair wear and tear only excepted, and to replace such articles as are lost, destroyed or so damaged as to be beyond repair with articles of equal value to those so lost, destroyed or damaged;
(f) to permit the lessor or his agent with or without workmen or others at all convenient times and after reasonable notice to enter on the leased land and examine its condition;
(g) to repair or otherwise make good any defect or breach of agreement for which the lessee is responsible and of which notice has been given by the lessor to the lessee, within such reasonable period as may be specified in the notice;
(h) not to dispose of the leased land or any part thereof or interest comprised therein without the previous written consent of the lessor but such consent shall not be unreasonably withheld;
(i) not to permit or suffer any part of the leased land to be used for any purpose other than that for which it was leased without the previous consent of the lessor but such consent shall not be unreasonably withheld;
(j) on determination of the lease peaceably and quietly to deliver up vacant possession of the leased land and all improvements thereon; and
(k) such other agreements as the Minister may have prescribed by Order prior ,to the execution of the lease.
MEANING
OF "IN GOOD
REPAIR"
42.
Where an agreement is contained or implied in any lease to keep a building or a
particular part of a building "in good repair", it
shall, in the absence of an
express provision to the contrary, mean in such a state of repair as that in
which a prudent owner might
reasonably be expected to keep his property, due
allowance being made for the age, character and locality of the building or such
part thereof at the commencement of the
lease:
Provided that there shall
not be read into such an agreement any undertaking to put any building into a
better state of repair than
that in which it was at the commencement of the
lease.
LESSOR'S
RIGHT OF
FORFEITURE
43.
(1) Subject to the provisions of section 45 and to any provision to the contrary
in the lease, the lessor shall have the right to
forfeit the lease if the lessee
commits any breach of, or omits to perform any agreement or condition on his
part expressed or implied
in the
lease.
(2) The right of forfeiture
may be-
(a) exercised, where neither the lessee nor any person claiming through or under him is in occupation of the land, by entering upon and remaining in possession of the land; or
(b) enforced by a reference to the Referee.
(3)
The right of forfeiture shall be taken to have been waived if-
(a) the lessor accepts rent which has become due since the breach of the agreement or condition which entitled the lessor to forfeit the lease or has by any other positive act shown an intention to treat the lease as subsisting; and
(b) the lessor is, or should by reasonable diligence have become, aware of the commission of the breach:
Provided that the acceptance of rent after the lessor has commenced a reference to the Referee under subsection (2) shall not operate as a waiver.
EFFECT
OF FORFEITURE ON
SUBLEASES
44.
The forfeiture of a lease determines every sublease and every other registered
interest relating to that lease, but-
(a) where the forfeiture is set aside by the Referee on the grounds that it was
procured by the lessor in fraud of the sublessee; or
(b) where the Referee grants relief against the forfeiture under section 46;
every
such sublease and other interest shall be deemed not to have
determined.
NOTICE
BEFORE
FORFEITURE
45.
Notwithstanding anything to the contrary contained in the lease, no lessor shall
be entitled to exercise the right of forfeiture
for the breach of any agreement
or condition in the lease, whether expressed or implied, until the lessor has
served on the lessee
and every other person shown by the register to have an
interest a notice in writing which-
(a) shall specify the particular breach complained of; and
(b) if the breach is capable of remedy, shall require the lessee to remedy the breach within such reasonable period as is specified in the notice; and
(c) in any case other than non-payment of rent may require the lessee to make compensation in money for the breach;
and
the lessee has failed to remedy the breach within a reasonable time thereafter,
if it is capable of remedy, and to make reasonable
compensation in money if so
required.
RELIEF
AGAINST
FORFEITURE
46.
(1) A lessee or other person upon whom a notice has been served under section
45, or against whom the lessor is proceeding, by reference
to the Referee or by
re-entry, to enforce his right of forfeiture, may apply to the Referee for
relief; and the Referee may grant
or refuse relief, as the Referee having regard
to the proceedings and the conduct of the parties and the circumstances of the
case,
thinks fit, and, if he grants relief, may grant it on such terms as he
thinks fit.
(2) The Referee, on
application by any person claiming as sublessee or mortgagee of the land or part
of the land comprised in the
lease forfeited or sought to be forfeited, may make
an order vesting the leased land or such part in such sublessee or mortgagee
for
the remainder of the term of the lease or any less period, upon such conditions
as the Referee in the circumstances thinks
fit:
Provided that nothing in this
subsection shall apply in the case of a forfeiture arising from a breach to
which the sublessee is a
party, or from the breach of an express agreement or
condition against subleasing, parting with the possession of or disposing of
the
land leased.
(3) This section
shall have effect notwithstanding any stipulation or agreement to the contrary
and whether the lease is registered
or
not.
VARIATION
OF AGREEMENTS AND CONDITIONS OF A
LEASE
47.
(1) Subject to the provisions of this Act and any other written law, the
agreements and conditions contained or implied in any registered
lease may be
varied, negatived or added to, by an instrument in the prescribed form executed
by the lessor and lessee for the time
being and registered before the expiration
of the current term of the
lease.
(2) Any variation of rent
under a lease shall be notified to the Director by the lessor. No variation
shall have effect unless so
notified and registered by the Director in the
register.
SUBLEASES
48.
(1) Subject to the provisions of this Act and to any provisions in his lease
affecting his right to do so, a proprietor of a registered
lease may sublease
for any period which is less than the remainder of the period of his lease by an
instrument in the prescribed
form.
(2) Save as otherwise
expressly provided in this Act, the provisions of this Act affecting leases,
lessors and lessees, shall apply
to subleases, sublessors and sublessees, with
such adaptations as are
necessary.
(3) If a lease is
determined by operation of law or by surrender under any law relating to
bankruptcy or winding up, such determination
shall determine the
sublease.
(4) In addition to the
agreements specified by this Act to be implied in leases, there shall be implied
in every sublease under this
Act an agreement by the sublessor that he will,
during the continuance of the sublease, pay the rent reserved by the lease under
which the sublessor holds, and observe and perform the agreements and conditions
thereof.
(5) Where a sublessee has
paid to the sublessor's lessor the rent or any part of the rent payable by the
sublessor under the lease
under which the sublessor holds, the sublessee shall
be entitled to set off any sum so paid against the rent payable by him to the
sublessor in respect of the
sublease.
SURRENDER
OF
LEASES
49.
(1) Where the lessor and the lessee agree that the lease shall be surrendered it
shall be surrendered in the following manner, that
is to say-
(a) an instrument shall be prepared in the prescribed form;
(b) the instrument shall then be executed by the lessee and lessor;
(c) the Director shall then cancel the registration of the lease; and
(d) the instrument shall then be filed.
(2)
No lease which is subject to a mortgage or sublease shall be surrendered without
the consent in writing of the proprietor of the
mortgage or sublease and upon
registration of the surrender the mortgage or sublease shall cease to have
effect.
DETERMINATION
OF
LEASES
50.
(1) Where a registered lease has expired or been determined the lessor may apply
in writing to the Director to cancel the
registration.
(2) An application
under this section shall be supported by such evidence of the determination as
the Director may require and the
Director on being satisfied of the matters set
forth in the application shall cancel the registration of the
lease.
PART
VIII
MORTGAGES
FORM
AND EFFECT OF
MORTGAGES
51.
(1) A proprietor may by an instrument in the prescribed form, mortgage his
registered lease to secure the payment of an existing
or a future or contingent
debt or other money or money's
worth.
(2) The mortgage shall be
completed by its registration as an encumbrance and the registration of the
person in whose favour it is
created as the mortgagee and by filing the
instrument.
(3) A mortgage shall
not operate as a transfer but shall have effect as a security
only.
SUPPLEMENTARY
PROVISIONS RELATING TO
MORTGAGES
52.
(1) A proprietor of a registered lease may not create any security for the
payment of money enforceable against that lease other
than a mortgage under and
in accordance with this Part.
(2)
The proprietor of a registered lease may create one or more mortgages in respect
of such lease which shall rank according to the
order in which they are
presented for registration.
(3) A
security for the payment of money, purporting to be enforceable against a
registered lease otherwise than by way of a mortgage
under the provisions of
this Act, or a mortgage which is not registered, may give rise to a personal
liability but shall not be enforceable
under this
Part.
FURTHER
ADVANCES
53.
(1) A prior mortgagee shall have a right to make further advances to rank in
priority to a subsequent mortgage, if, and only if-
(a) an arrangement to that effect has been made with the subsequent mortgagee; or
(b) the mortgage imposes an obligation to make such further advances; or
(c) the mortgage was made expressly for securing a current account up to a specified limit, in which case the right shall extend only up to such limit.
(2)
Where a mortgage imposes an obligation to make further advances or is made
expressly for securing a current account up to a specified
limit, the Director
shall, when registering it, include in the relevant memorandum the words
"subject to further advances" or words
to that
effect.
VARIATION
OF
MORTGAGES
54.
(1) Subject to the provisions of this Act the terms of a mortgage may be varied
by an instrument in the prescribed form made between
the parties for the time
being to the mortgage but no such variation shall affect the rights of the
proprietor of any subsequent
mortgage registered before registration of the
variation unless he has consented thereto in writing endorsed on the instrument
of
variation and verified in accordance with section
78.
(2) Notwithstanding the
provisions of section 27, where more than one mortgage is created in respect of
a lease their respective priorities
may be varied by a written agreement between
the mortgagees. Such agreement shall be filed with the Director and shall be
noted in
the register relating to the
lease.
DISCHARGE
OF
MORTGAGE
55.
(1) The Director shall, if required by the mortgagee, or on proof of the
satisfaction in whole or in part of a mortgage, in either
case, in the
prescribed form, register the discharge in whole or in part of the
mortgage.
(2) Where a mortgagor is
desirous of wholly satisfying a mortgage, and the mortgagee, or if there are two
or more mortgagees, any
of the mortgagees, is or are dead or cannot be found,
the mortgagor may pay the moneys owing into the Court, and upon proof of such
payment the Director shall register the discharge of the mortgage, and thereupon
the mortgage shall cease to have
effect.
OBLIGATIONS
IMPLIED IN
MORTGAGES
56.
(1) There shall be implied in every mortgage unless the contrary is expressed
therein, on the part of the mortgagor, the following
obligations-
(a) to pay to the mortgagee the principal sum secured, and interest (if any) thereon, at the appointed time and rate;
(b) to pay the rent and perform the obligations incident to the lease comprised in the mortgage;
(c) not, by any disposition, to subdivide or dispose the leased land or any part thereof or any interest comprised therein without the previous written consent of the mortgagee but such consent shall not be unreasonably withheld.
(2)
A mortgage may provide for the payment of interest at a higher rate than that
appointed if the interest at the appointed rate
is not paid within a specified
period after the same shall have become due; but so that the higher rate shall
not exceed the appointed
rate by more than 3 per centum per
annum.
(3) A mortgage may provide
for the mortgagee to remedy a breach of an agreement by the mortgagor to pay the
rent reserved under the
lease.
MORTGAGEE'S
CONSENT TO TRANSFER
ETC.
57.
Where a mortgage contains an agreement, express or implied, by the mortgagor
with the mortgagee that he will not by any disposition
subdivide or dispose of
the leased land or any part thereof or any interest comprised therein without
the written consent of the
mortgagee, the agreement shall be noted in the
register relating to the lease and no such subdivision, or other disposition,
shall
be registered until the written consent of the mortgagee verified in
accordance with section 78 has been produced to the
Director.
ACTION
FOR RECOVERY OF
DEBT
58.
Any principal sum or interest due under a mortgage may, subject to the
provisions of section 59(4), be recovered by action in any
competent
court.
ENFORCEMENT
OF
MORTGAGES
59.
(1) Except as provided in section 46 a mortgage shall be enforced upon
application to the Court and not
otherwise.
(2) Upon any such
application, the Court may make an order-
(a) empowering the mortgagee or any other specified person to sell and transfer the mortgaged lease, and providing for the manner in which the sale is to be effected and the proceeds of the sale applied;
(b) empowering the mortgagee or any other specified person to enter on the land and act in all respects in the place and on behalf of the-proprietor of the lease for a specified period and providing for the application of any moneys received by him while so acting; or
(c) vesting the lease in the mortgagee or any person either absolutely or upon such terms as it thinks fit but such order shall, subject to subsection (5), not take effect until registration thereof.
(3)
The Court shall, in exercising its jurisdiction under this section, take into
consideration any action brought under section 58
and the results
thereof.
(4) After the Court has
made an order under paragraphs (a) or (c) of subsection (2) or while an order
under paragraph (b) of subsection
(2) is in force, no action may be commenced or
judgment obtained under section 58 in respect of the mortgage except with the
leave
of the Court and subject to such conditions (if any) as the Court may
impose.
(5) Any order made by the
Court under this section shall for the purposes of subsection (4) be effective
from the time when it is
made.
PART
IX
TRANSFERS
TRANSFER
60.
(1) A proprietor may, subject to the provisions of this Act, transfer his
registered lease or mortgage to any person, with or without
consideration, by an
instrument in the prescribed
form.
(2) The transfer shall be
completed by registration of the transferee as proprietor of the lease or
mortgage and by filing the
instrument.
(3) A transfer shall
dispose of the registered lease or mortgage transferred for the whole remaining
portion (at the time when the
disposition purports to take effect) of the period
for which the lease or mortgage was
registered.
RESTRICTION
ON
TRANSFER
61.
(1) A transfer shall not be expressed to take effect on the happening of any
event or on the fulfilment of any condition or at any
future
time.
(2) Any condition or
limitation purporting to restrain absolutely a transferee or any person claiming
under him from disposing of
the interest transferred shall be
void.
(3) A proprietor of a
registered interest may not dispose of the interest for the whole remaining
portion (at the time when the disposition
purports to take effect) of the period
for which the interest was registered, otherwise than by way of transfer in
accordance with
the provisions of this
Act.
MATTERS
IMPLIED IN
TRANSFER
62.
(1) On the transfer of a registered lease there shall be implied-
(a) except in so far as the transfer may otherwise specify, a warranty, on the part of the transferor, that the rent and obligations incident to the lease have been paid and performed up to the date of transfer;
(b) on the part of the transferee, an agreement with the transferor that so long as the lease subsists, the transferee and the persons deriving title under him shall pay the rent and shall perform the obligations incident to the lease and shall keep the transferor indemnified against all consequences and liabilities arising out of the non-payment of the rent or the non-performance of any of the obligations.
(2)
On the transfer of a registered lease subject to a mortgage, there shall be
implied-
(a) except in so far as the transfer may otherwise specify, a warranty, on the part of the transferor, that nothing has been done or omitted up to the date of transfer (including the payment of any moneys payable under the mortgage) which would render the mortgage liable to be enforced; and
(b) on the part of the transferee, an undertaking with the transferor that so long as the mortgage subsists the transferee and the persons deriving title under him shall pay all money payable thereunder, shall perform the obligations contained therein, and shall keep the transferor indemnified against all consequences and liabilities of or arising out of the non-payment of the said moneys or the non-performance of any of the said obligations.
ENTITLEMENT
OF A TRANSFEREE OF A
MORTGAGE
63.
Upon registration of a transfer of a mortgage, the transferee shall be entitled
to all of the rights, powers and remedies of the
mortgagee expressed or implied
in the mortgage including the right to recover any debt, sum of money or damages
thereunder; and all
the interest of the transferor in any such debt, sum of
money or damages, shall vest in the
transferee.
REGISTRATION
OF TRANSFER OF
MORTGAGE
64.
A mortgagor shall not be bound to account to any person who has acquired an
interest in the mortgage unless the instrument whereby
such person became
entitled has been registered and the mortgagor has been notified in writing of
the registration by such
person.
TRANSFER
OF LEASE SUBJECT TO
SUBLEASE
65.
A transfer of a lease which is subject to a sublease shall be valid without the
sublessee acknowledging the transferee as sublessor,
but nothing in this section
shall-
(a) affect the validity of any payment of rent made by the sublessee to the transferor; or
(b) render the sublessee liable on account of his failure to pay rent to the transferee or any breach of agreement to pay rent;
before
notice is given to the sublessee by the transferee, in the case of a registered
lease of registration of the transfer and in
the case of an unregistered lease,
of the
transfer.
TRANSFER
OF
PART
66.
No part of the land comprised in a registered lease shall be transferred unless
the proprietor has first subdivided the land comprised
in the lease and new
registers have been opened in respect of each subdivision in accordance with
section 12(2).
PART
X
EASEMENTS,
RESTRICTIVE AGREEMENTS, PROFITS AND LICENCES
EASEMENTS
67.
(1) The proprietor of a registered lease may, by an instrument in the prescribed
form, grant an easement over the land comprised
in his lease to the lessee of
other land for the benefit of that other
land.
(2) Any proprietor
transferring- or subleasing a registered lease may in the transfer or sublease
grant an easement for the benefit
of the lease transferred or subleased, over
land retained by him, or reserve an easement for the benefit of land retained by
him.
(3) The instrument creating
the easement shall specify clearly-
(a) the nature of the easement, the period for which it is granted and any conditions, limitations or restrictions intended to affect its enjoyment; and
(b) the land burdened by the easement and, if required by the Director, the particular part thereof so burdened; and
(c) the land which enjoys the benefit of the easement;
and
shall if so required by the Director, include a plan sufficient in the
Director's estimation to define the
easement.
(4) The grant or
reservation of the easement shall be completed by its registration as an
encumbrance in the register of the lease
burdened and in the property section of
the register of the lease which benefits and by filing the instrument. An
easement granted
by the proprietor of a registered lease shall be capable of
subsisting only during the subsistence of the
lease.
RESTRICTIVE
AGREEMENTS
68.
(1) Where an instrument other than a lease or mortgage contains an agreement
(hereinafter referred to as a "restrictive agreement")
by one proprietor
restricting the building on or the use or other enjoyment of the land comprised
in his registered lease for the
benefit of the proprietor of any other
registered lease and is presented to the Director, the Director shall note the
restrictive
agreement in the encumbrances section of the register of the lease
burdened by the restrictive agreement, either by entering particulars
of the
agreement or by referring to the instrument containing the agreement and shall
file the instrument.
(2) Unless it
is noted in the register a restrictive agreement shall not bind the proprietor
of the lease burdened by it.
(3)
The note of a restrictive agreement in the register does not give the agreement
any greater force or validity than it would have
had if it had not been
registrable under this Act and had not been
noted.
(4) In so far as the
restrictive agreement is capable of taking effect not only the proprietors
themselves but also their respective
successors in title shall be entitled to
the benefit and subject to the burden of it respectively, unless the instrument
otherwise
provides.
PROFITS
69.
(1) The proprietor of a registered lease may, by an instrument in the prescribed
form, grant a profit.
(2) The
instrument shall indicate clearly-
(a) the nature of the profit and the period for which it is to be enjoyed;
(b) whether it is to be enjoyed in gross, or as appurtenant to any other registered lease; and
(c) whether it is to be enjoyed by the grantee exclusively, or by him in common with the grantor.
(3)
The grant of a profit shall be completed-
(a) by its registration as an encumbrance in the register of the lease which it affects;
(b) where it is appurtenant to another registered lease by its registration in the property section of the register of the lease concerned; and
(c) by filing the instrument.
(4)
A profit which is not appurtenant to a registered lease may be dealt with as
though it were such a lease.
(5) A
profit granted by the proprietor of a registered lease shall be capable of
subsisting only during the subsistence of the
lease.
RELEASE
AND EXTINGUISHMENT OF EASEMENTS RESTRICTIVE AGREEMENTS AND
PROFITS
70.
(1) Upon presentation of a duly executed release in the prescribed form, the
registration of the easement, restrictive agreement
or profit shall be cancelled
and thereupon the easement, restrictive agreement or profit shall become
extinguished.
(2) On the
application of any person affected thereby, the Director may cancel the
registration of an easement, restrictive agreement
or profit upon proof to his
satisfaction that-
(a) the period of time for which it was intended to subsist has expired; or
(b) the event upon which it was intended to determine has occurred; or
(c) it has been abandoned.
EXTINGUISHMENT
AND MODIFICATION OF EASEMENTS, RESTRICTIVE AGREEMENTS AND
PROFITS
71.
(1) The Court has power, on the application of any proprietor of a registered
lease affected by an easement, restrictive agreement
or profit, by order wholly
or partially to extinguish or modify the easement, restrictive agreement or
profit (with or without payment
by the applicant of compensation to any person
suffering loss in consequence of the order), on being satisfied
that-
(a) by reason of changes in the character of the property or the neighbourhood or other circumstances which the Court deems material, the easement, restrictive agreement or profit ought to be held to be obsolete; or
(b) the continued existence of the easement, restrictive agreement or profit impedes the reasonable use of the land for public or private purposes without securing practical benefits to other persons or as the case may be, will unless modified so impede such user; or
(c) the proposed extinguishment or modification will not adversely affect the person entitled to the benefit of the easement, restrictive agreement or profit.
LICENCES
72.
(1) Without prejudice to section 93 a licence shall not be capable of
registration.
(2) A licence
relating to the use or enjoyment of the land comprised in a registered lease is
ineffective against a bona fide purchaser
for valuable consideration unless the
licensee has protected his interest by lodging a caution under section
93.
PART
XI
CO-PROPRIETORSHIP
CO-PROPRIETORSHIP
73.
(1) Every instrument required to be registered under this Act whereby an
interest would become vested in more than five persons shall,
notwithstanding
anything to the contrary contained therein, operate to vest the interest in the
first five persons named in the instrument
as joint proprietors on the statutory
trusts.
(2) An instrument required
to be registered under this Act made in favour of two or more persons shall
declare whether such persons
are joint proprietors or proprietors in common and
in the case of proprietors in common, the share of each such
owner.
PROPRIETORSHIP
IN
COMMON
74.(1)
Where a registered interest is vested in proprietors in common, the proprietors
shall be entitled to undivided shares in the interest
in such proportion as may
be registered and on the death of any of the proprietors in common his share
shall be administered as part
of his
estate.
(2) No proprietor in
common of a registered interest shall dispose of his undivided share in favour
of any person other than another
proprietor in common of the same interest
except with the consent in writing of the remaining proprietor or proprietors of
the interest,
but such consent shall not be unreasonably
withheld.
JOINT
PROPRIETORSHIP
75.
(1) Where a registered interest is vested in joint proprietors, the joint
proprietors shall hold on the statutory
trusts.
(2) Where two or more
persons are joint proprietors of such a registered interest-
(a) a disposition of that interest shall be made only by all the joint proprietors; and
(b) on the death of a joint proprietor the interest shall vest in the surviving proprietor or proprietors.
PART
XII
INSTRUMENTS AND
AGENTS
FORM OF
INSTRUMENTS
76.
(1) Every disposition of a registered interest shall be effected by an
instrument in the prescribed form or in such other form as
the Director may in
any particular case approve.
(2)
When a lease or mortgage is registered, and a duplicate or triplicate thereof is
produced to the Director, particulars of registration
shall be noted thereon,
and the duplicate and triplicate shall be returned to the person who presented
them, but such note shall
not be taken to involve the Director in liability for
any inaccuracy which may exist in any such duplicate or
triplicate.
(3) Instruments shall
contain a true statement of the amount or value of the purchase price or loan or
other consideration (if any),
and an acknowledgement of the receipt of the
consideration.
EXECUTION
OF
INSTRUMENTS
77.
(1) Every instrument evidencing a disposition shall be executed by all persons
shown by the register to be proprietors of the interest
affected and by all
other parties to the
instrument:
Provided that the
Director may dispense with execution by any particular party (other than a donee
under a disposition by way of gift)
where he considers that such execution is
unnecessary.
(2) An instrument
shall be deemed to have been executed only-
(a) by a natural person, if signed by him or his duly authorised attorney;
(b) by a corporation-
(i) if sealed with the common seal of the corporation affixed thereto in the presence of and attested by its clerk, secretary or other permanent officer and by a member of the board of directors, council or other governing body of the corporation, or in the presence of and attested by two members of such board, council or other governing body; or
(ii) in the case of a corporation, if signed by such persons as are authorised in that behalf by any law or by the statute or charter of the corporation or in the absence of any express provision, by the persons duly appointed in writing for that purpose, evidence of which has been produced to the satisfaction of the Director.
VERIFICATION
OF
EXECUTION
78.
(1) Subject to subsection (5), a person other than a body corporate, executing
an instrument required to be registered under this
Act shall appear before an
authorised officer for the purposes of this section and, unless he is personally
known to the authorised
officer, he shall be accompanied by a credible witness
for the purpose of establishing his
identity.
(2) The authorised
officer shall satisfy himself as to the identity of the person appearing before
him and ascertain whether he freely
and voluntarily executed and appeared fully
to understand the instrument and shall complete a certificate to that
effect.
(3) Authorised officers
for the purpose of this section are-
(a) within Vanuatu-
(i) the secretary to any local government council;
(ii) a magistrate;
(iii) the Registrar of the Supreme Court;
(iv) the Registrar and Receiver General;
(v) persons for the time being registered as legal practitioners;
(vi) Notaries Public;
(vii) Commissioners for Oaths;
(ix) surveyors in the Department of Surveys
(x) such other persons or class of persons as the Minister may by notice published in the Gazette approve;
(b) in any foreign country-
(i) consular officers or proconsular officers of Vanuatu;
(ii) Notaries Public;
(iii) such other persons or class of persons as the Minister may by notice published in the Gazette approve.
(4)
Every certificate of verification required for the purpose of this section shall
be in the following form which may be printed
on or otherwise incorporated in
any instrument presented for registration-
"I certify that the above-named .............................................................................................
appeared before me at ............................................................... on this ...............................
day of ......................... 19..........
*being identified to me by.....................................................................................................
of ...........................................................................................................................................
*(or) being personally known to me and, that *he/*she/*they freely and voluntarily signed and appeared fully to understand this instrument.
*delete the underlined ..........................................................................................
alternatives Signature, name, designation and seal/stamp of office of
inapplicable person completing certificate."
(5)
The Director may dispense with verification under this
subsection-
(a) if he considers that it cannot be obtained or can be obtained only with difficulty and he is otherwise satisfied that the document has been properly executed; or
(b) in cases in which to his knowledge the document has been properly executed, and shall record on the document his reasons for dispensing with verification.
STAMPS
79.
No instrument required by law to be stamped shall be accepted for registration
unless it is duly
stamped.
DISPOSAL
OF
INSTRUMENTS
80.
(1) All instruments accepted by the Director shall be retained in the Land
Records Office for as long as they support a current entry
in the register and
for 6 years thereafter.
(2) On the
expiry of 6 years after an entry in the register has been superseded or has
ceased to have effect, the Director may destroy
any instrument which supported
the
entry.
PERSONS
WHO ARE MENTALLY
INFIRM
81.
(1) If the Director has reason to believe that any person whose name is entered
on the register is incapable by reason of mental
infirmity of acting, he shall
refuse to register any instrument to which that person is expressed to be a
party or affecting any
right or interest owned by or vested in that person
unless the instrument is executed or approved in writing by the guardian of that
person.
(2) Where any person
claims to be the guardian of a person whose name is entered on the register and
who in the opinion of the Director
is incapable by reason of mental infirmity of
acting, the Director shall require him to produce an order of a court of
competent
jurisdiction appointing him, or recognising him as such
guardian.
(3) On the hearing of an
application under subsection (2) the Court may make an order-
(a) declaring that the applicant is the guardian of the person in question; or
(b) appointing some other person to be such guardian.
POWERS
OF
ATTORNEY
82.
(1) The Director shall, subject to the provisions of this section, maintain an
index of powers of attorney in such form and manner
as he may deem
fit.
(2) Upon the application of
the donor or the donee of a power of attorney which contains any power to
dispose of any registered interest
in land, such power shall be entered in an
index of powers of attorney and the original, or with the consent of the
Director, a copy
thereof certified by the Director, shall be
filed.
(3) Every such power shall
be in the prescribed form and shall be executed and verified in accordance with
sections 77 and 78 except
where the Director in any particular case otherwise
permits.
(4) The donor of a power
of attorney recorded under this section may at any time give notice to the
Director in the prescribed form
or in such other form as the Director may
approve, that the power has been
revoked.
(5) Any interested person
may give notice in writing to the Director that a power of attorney which has
been registered under this
section has been revoked by the death, bankruptcy or
disability of the donor, accompanied by such evidence as the Director
requires.
(6) Subsections (4) and
(5) shall not apply to any power of attorney given for valuable consideration
during any time during which
it is by virtue of the terms thereof,
irrevocable.
(7) If, owing to the
length of time since the execution of a power of attorney or for any other
reason the Director considers it desirable,
he may require evidence that the
power has not been revoked and may refuse to register any disposition by the
donee of the power
of attorney until satisfactory evidence is
produced.
EFFECT
OF REGISTERED POWERS OF
ATTORNEY
83.
(1) A power of attorney which has been recorded under section 82 and of which no
notice of revocation has been received under that
section shall be deemed to be
subsisting as regards the Director and any person acquiring any interest in land
affected by the exercise
of the power, for valuable consideration and without
notice of revocation and in good faith, or any person deriving title under such
a person.
(2) Any person making
any payment or doing any act in good faith in pursuance of a power of attorney
recorded under section 82, shall
not be liable in respect of the payment or act
by reason only that before the payment or act the donor of the power had died or
become
subject to a disability or become bankrupt, or had revoked the power, if
the fact of death, disability, bankruptcy or revocation
was not at the time of
the payment or act known to the person making or doing the payment or
act.