|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
[Report an error]
[F.A.Q.]
United Kingdom Legislation for Vanuatu |
LAWS OF THE UNITED KINGDOM
LAW OF PROPERTY ACT 1925
(15 Geo. 5, c. 20.)
An Act to consolidate the enactments relating to Conveyancing and the Law of Property in England and Wales.
[9th April, 1925]
PART I.
GENERAL
PRINCIPLES AS TO LEGAL
ESTATES,
EQUITABLE INTERESTS AND
POWERS.
1. Legal estates and equitable interests. - (1) The only
estates in land which are capable of subsisting or of being conveyed or created
at law are-
(a) An estate in fee simple absolute in possession;
(b) A term of years absolute.
(2) The only interests or charges in
or over land which are capable of subsisting or of being conveyed or created at
law are-
(a) An easement, right, or privilege in or over land for an interest equivalent to an estate in fee simple absolute in possession or a term of years absolute;
(b) A rent charge in possession issuing out of or charged on land being either perpetual or for a term of years absolute;
(c) A charge by way of legal mortgage;
(d) Land tax, tithe rentcharge and any other similar charge on land which is not created by an instrument;
(e) Rights of entry exercisable over or in respect of a legal term of years absolute, or annexed, for any purpose, to a legal rent charge.
(3) All other estates,
interests, and charges in or over land take effect as equitable
interests.
(4) The estates interests, and charges which under this
section are authorised to subsist or to be conveyed or created at law are
(when
subsisting or conveyed or created at law) in this Act referred to as "legal
estates," and have the same incidents as legal
estates subsisting at the
commencement of this Act; and the owner of a legal estate is referred to as "an
estate owner" and his legal
estate is referred to as his estate.
(5) A
legal estate may subsist concurrently with or subject to any other legal estate
in the same land in like manner as it could
have done before the commencement of
this Act.
(6) A legal estate is not capable of subsisting or of being
created in an undivided share in land or of being held by an infant.
(7)
Every power of appointment over, or power to convey or charge land or any
interest therein, whether created by a statute or other
instrument or implied by
law, and whether created before or after the commencement of this Act (not being
a power vested in a legal
mortgagee or an estate owner in right of his estate
and exercisable by him or by another person in his name and on his behalf),
operates
only in equity.
(8) Estates, interests, and charges in or over
land which are not legal estates are in this Act referred to as "equitable
interests,"
and powers which by this Act are to operate in equity only are in
this Act referred to as "equitable powers".
(9) The provisions in any
statute or other instrument requiring land to be conveyed to uses shall take
effect as directions that the
land shall (subject to creating or reserving
thereout any legal estate authorised by this Act which may be required) be
conveyed
to a person of full age upon the requisite trusts.
(10) The
repeal of the Statute of Uses (as amended) does not affect the operation thereof
in regard to dealings taking effect before
the commencement of this
Act.
2. Conveyances overreaching
certain equitable interests and powers. - (1) A conveyance to a purchaser
of a legal estate inland shall over-reach any equitable interest or power
affecting that estate, whether
or not he has notice thereof, if-
(i) the conveyance is made under the powers conferred by the Settled Land Act, 1925, or any additional powers conferred by a settlement, and the equitable interest or power is capable of being overreached thereby, and the statutory requirements respecting the payment of capital money arising under the settlement are complied with;
(ii) the conveyance is made by trustees for sale and the equitable interest or power is at the date of the conveyance capable of being overreached by such trustees under the provisions of subsection (2) of this section or independently of that subsection, and the statutory requirements respecting the payment of capital money arising under a disposition upon trust for sale are complied with;
(iii) the conveyance is made by a mortgagee or personal representative in the exercise of his paramount powers, and the equitable interest or power is capable of being overreached by such conveyance, and any capital money arising from the transaction is paid to the mortgagee or personal representative;
(iv) the conveyance is made under an order of the court and the equitable interest or power is bound by such order, and any capital money arising from the transaction is paid into, or in accordance with the order of, the court.
(2) [Where the legal estate affected is
subject to a trust for sale, then if at the date of a conveyance made after the
commencement
of this Act under the trust for sale or the powers conferred on the
trustees for sale, the trustees (whether original or substituted)
are
either-]
(a) two or more individuals approved or appointed by the court or the successors in office of the individuals so approved or appointed; or
(b) a trust corporation;
[any equitable interest or power
having priority to the trust for sale] shall, notwithstanding any stipulation to
the contrary, be
overreached by the conveyance, and shall, according to its
priority, take effect as if created or arising by means of a primary trust
affecting the proceeds of sale and the income of the land until sale.
(3)
The following equitable interests and powers are excepted from the operation of
subsection (2) of this section, namely-
(i) Any equitable interest protected by a deposit of documents relating to the legal estate affected;
(ii) The benefit of any covenant or agreement restrictive of the user of land;
(iii) Any easement, liberty, or privilege over or affecting land and being merely an equitable interest (in this Act referred to as an "equitable easement");
(iv) The benefit of any contract (in this Act referred to as an "estate contract") to convey or create a legal estate, including a contract conferring either expressly or by statutory implication a valid option to purchase, a right of pre-emption, or any other like right;
(v) Any equitable interest protected by registration under the Land Charges Act, 1925, other than-
(a) an annuity within the meaning of Part II of that Act;
(b) a limited owner's charge or a general equitable charge within the meaning of that Act.
(4) Subject to the
protection afforded by this section to the purchaser of a legal estate, nothing
contained in this section shall
deprive a person entitled to an equitable charge
of any of his rights or remedies for enforcing the same.
(5) So far as
regards the following interests, created before the commencement of this Act
(which accordingly are not within the provisions
of the Land Charges Act, 1925),
namely-
(a) the benefit of any covenant or agreement restrictive of the user of the land;
(b) any equitable easement;
(c) the interest under a puisne mortgage within the meaning of the Land Charges Act, 1925, unless and until acquired under a transfer made after the commencement of this Act;
(d) the benefit of an estate contract, unless and until the same is acquired under a conveyance made after the commencement of this Act;
a purchaser of a
legal estate shall only take subject thereto if he has notice thereof, and the
same are not overreached under the
provisions contained or in the manner
referred to in this section.
3.
Manner of giving effect to equitable interests
and powers. - (1) All equitable interests and powers in or over land
shall be enforceable against the estate owner of the legal estate affected
in
manner following (that is to say):-
(a) Where the legal estate affected is settled land, the tenant for life or statutory owner shall be bound to give effect to the equitable interests and powers in manner provided by the Settled Land Act, 1925;
(b) Where the legal estate affected is vested in trustees for sale-
(i) The trustees shall stand possessed of the net proceeds of sale after payment of costs and of the net rents and profits of the land until sale after payment of rates, taxes, costs of insurance, repairs, and other outgoings, upon such trusts and subject to such powers and provisions as may be requisite for giving effect to the equitable interests and powers affecting the same respectively, of which they have notice, and whether created before or after the disposition upon trust for sale, according to their respective priorities;
(ii) Where, by reason of the exercise of any equitable power or under any trust affecting the proceeds of sale, any principal sum is required to be raised, or any person of full age becomes entitled to require a legal estate in the land to be vested in him in priority to the trust for sale, then, unless the claim is satisfied out of the net proceeds of sale, the trustees for sale shall (if so requested in writing) be bound to transfer or create such legal estates, to take effect in priority to the trust for sale, as may be required for raising the money by way of legal mortgage or for giving legal effect to the rights of the person so entitled:
Provided that, if the proceeds of sale are held in trust for persons of full age in undivided shares absolutely free from encumbrances affecting undivided shares, those persons cannot require the land to be conveyed to them in undivided shares, but may (subject to effect being given by way of legal mortgage to encumbrances affecting the entirety) require the same to be vested in any of them (not exceeding four) as joint tenants on trust for sale; and if the conveyance purports to transfer the land to any of them in undivided shares or to more than four such persons, it shall operate only as a transfer to them or (if more than four) to the four first named therein as joint tenants on trust for sale;
(c) Where the legal estate affected is neither settled land nor vested in trustees for sale, the estate owner shall be bound to give effect to the equitable interests and powers affecting his estate of which he has notice according to their respective priorities. This provision does not affect the priority or powers of a legal mortgagee, or the powers of personal representatives for purposes of administration.
(2) Effect may be given by
means of a legal mortgage to an agreement for a mortgage, charge or lien
(whether or not arising by operation
of law) if the agreement, charge or lien
ought to have priority over the trust for sale.
(3) Where, by reason of
statutory or other right of reverter, or of an equitable right of entry taking
effect, or for any other reason,
a person becomes entitled to require a legal
estate to be vested in him, then and in any such case the estate owner whose
estate
is affected shall be bound to convey or create such legal estate as the
case may require.
(4) If any question arises whether any and what legal
estate ought to be transferred or created as aforesaid, any person interested
may apply to the court for directions in the manner provided by this
Act.
(5) If the trustees for sale or other estate owners refuse or
neglect for one month after demand to transfer or create any such legal
estate,
or if by reason of their being out of the United Kingdom or being unable to be
found, or by reason of the dissolution of
a corporation, or for any other
reason, the court is satisfied that the transaction cannot otherwise be
effected, or cannot be effected
without undue delay or expense, the court may,
on the application of any person interested, make a vesting order transferring
or
creating a legal estate in the manner provided by this Act.
(6) This
section does not affect a purchaser of a legal estate taking free from an
equitable interest or power.
4.
Creation and disposition of equitable
interests. - (1) Interests in land validly created or arising after the
commencement of this Act, which are not capable of subsisting as legal
estates,
shall take effect as equitable interests, and, save as otherwise expressly
provided by statute, interests in land which
under the Statute of Uses or
otherwise could before the commencement of this Act have been created as legal
interests, shall be capable
of being created as equitable
interests:
Provided that, after the commencement of this Act (and save as
hereinafter expressly enacted), an equitable interest in land shall
only be
capable of being validly treated in any case in which an equivalent equitable
interest in property real or personal could
have been validly created before
such commencement.
(2) All rights and interests in land may be disposed
of, including-
(a) a contingent, executory or future equitable interest in any land, or a possibility coupled with an interest in any land, whether or not the object of the gift or limitation of such interest or possibility be ascertained;
(b) a right of entry, into or upon land whether immediate or future, and whether vested or contingent.
(3) All rights of entry affecting
a legal estate which are exercisable on condition broken or for any other reason
may after the commencement
of this Act, be made exercisable by any person and
the persons deriving title under him, but, in regard to an estate in fee simple
(not being a rent charge held for a legal estate) only within the period
authorised by the rule relating to
perpetuities.
5. Satisfied terms;
whether created out of freehold or leasehold land to cease. - (1) Where
the purposes of a term of years created or limited at any time out of freehold
land, become satisfied either before or after
the commencement of this Act
(whether or not that term either by express declaration or by construction of
law becomes attendant
upon the freehold reversion) it shall merge in the
reversion expectant thereon and shall cease accordingly.
(2) Where the
purposes of a term of years created or limited, at any time, out of leasehold
land, become satisfied after the commencement
of this Act, that term shall merge
in the reversion expectant thereon and shall cease accordingly.
(3) Where
the purposes are satisfied only as respects part of the land comprised in a
term, this section shall have effect as if a
separate term had been created in
regard to that part of the land.
6.
Saving of 'lessors' and 'lessees' covenants. - (1) Nothing in this Part
of this Act affects prejudicially the right to enforce any lessor's or lessee's
covenants, agreements or
conditions (including a valid option to purchase or
right of pre-emption over the reversion), contained in any such instrument as
is
in this section mentioned, the benefit or burden of which runs with the
reversion or the term.
(2) This section applies where the covenant,
agreement or condition is contained in any instrument -
(a) creating a term of years absolute, or
(b) varying the rights of the lessor or lessee under the instrument creating the term.
7.
Saving of certain legal estates and statutory powers. - (1) A fee simple
which, by virtue of the Lands Clauses Acts, the School Sites Act, or any similar
statute, is liable to be divested,
is for the purposes of this Act a fee simple
absolute, and remains liable to be divested as if this Act had not been passed,
[and
a fee simple subject to a legal or equitable right of entry or re-entry is
for the purposes of this Act a fee simple absolute].
(2) A fee simple
vested in a corporation which is liable to determine by reason of the
dissolution of the corporation is, for the
purposes of this Act, a fee simple
absolute.
(3) The provisions of -
(a) the Forfeiture Act, 1870, in regard to the land of a convict;
(b) the Friendly Societies Act 1896, in regard to land to which that Act applies;
(c) any other statutes conferring special facilities or prescribing special modes (whether by way of registered memorial or otherwise) for disposing of or acquiring land, or providing for the vesting (by conveyance or otherwise) of the land in trustees or any person, or the holder for the time being of an office or any corporation sole or aggregate (including the Crown);
shall remain in full
force.
This subsection does not authorise an entailed interest to take
effect otherwise than as an equitable interest.
(4) Where any such power
for disposing of or creating a legal state is exercisable by a person who is not
the estate owner, the power
shall, when practicable, be exercised in the name
and on behalf of the estate owner.
8.
Saving of certain legal powers to lease. - (1) All leases or tenancies at
a rent for a term of years absolute authorised to be granted by a mortgagor or
mortgagee or by the
Settled Land Act, 1925, or any other statute (whether or not
extended by any instrument) may be granted in the name and on behalf
of the
estate owner by the person empowered to grant the same, whether being an estate
owner or not, with the same effect and priority
as if this Part of this Act had
not been passed; but this section does not (except as respects the usual
qualified covenant for quiet
enjoyment) authorise any person granting a lease in
the name of an estate owner to impose any personal liability on him.
(2)
Where a rent charge is held for a legal estate, the owner thereof may under the
statutory power or under any corresponding power,
create a legal term of years
absolute for securing or compelling payment of the same; but in other cases
terms created under any
such power shall, unless and until the estate owner of
the land charged gives legal effect to the transaction, takes effect only
as
equitable interests.
9. Vesting orders
and dispositions of legal estates operating as conveyances by an estate owner. -
(1) Every such order, declaration, or conveyance as is hereinafter
mentioned, namely-
(a) every vesting order made by any court or other competent authority;
(b) every vesting declaration (express or implied) under any statutory power;
(c) every vesting instrument made by the trustees of a settlement or other persons under the provisions of the Settled Land Act, 1925;
(d) every conveyance by a person appointed for the purpose under an order of the court or authorised under any statutory power to convey in the name or on behalf of an estate owner;
(e) every conveyance made under any power reserved or conferred by this Act,
which
is made or executed for the purpose of vesting, conveying, or creating a legal
estate, shall operate to convey or create the
legal estate disposed of in like
manner as if the same had been a conveyance executed by the estate owner of the
legal estate to
which the order, declaration, vesting instrument, or conveyance
relates.
(2) Where the order, declaration, or conveyance is made in
favour of a purchaser, the provisions of this Act relating to a conveyance
of a
legal estate to a purchaser shall apply thereto.
(3) The provisions of
the Trustee Act, 1925, relating to vesting orders and orders appointing a person
to convey shall apply to all
vesting orders authorised to be made by this Part
of this Act.
10. Title to be shown to
legal estates. - (1) Where title is shown to a legal estate in land, it
shall be deemed not necessary or proper to include in the abstract of title
an
instrument relating only to interests or powers which will be overreached by the
conveyance of the estate to which title is being
shown; but nothing in this Part
of this Act affects the liability of any person to disclose an equitable
interest or power which
will not be so overreached, or to furnish an abstract of
any instrument creating or affecting the same.
(2) A solicitor delivering
an abstract framed in accordance with this Part of this Act shall not incur any
liability on account of
an omission to include therein an instrument which,
under this section, is to be deemed not necessary or proper to be included, nor
shall any liability be implied by reason of the inclusion of any such
instrument.
11. Registration in
Middlesex and Yorkshire as respects legal estates. - (1) It shall not be
necessary to register a memorial of any instrument made after the commencement
of this Act in any local deeds
registry unless the instrument operates to
transfer or create a legal estate, or to create a charge thereon by way of legal
mortgage;
nor shall the registration of a memorial of any instrument not
required to be registered affect any priority.
(2) Probates and letters
of administration shall be treated as instruments capable of transferring a
legal estate to personal representatives.
(3) Memorials of all
instruments capable of transferring or creating a legal estate or charge by way
of legal mortgage, may, when
so operating, be
registered.
12. Limitation and
Prescription Acts. - Nothing in this Part of this Act affects the
operation of any statute, or of the general law for the limitation of actions or
proceedings
relating to land or with reference to the acquisition of easements
or rights over or in respect of
land.
13. Effect of possession of
documents. - This Act shall not prejudicially affect the right or
interest of any person arising out of or consequent on the possession by him
of
any documents relating to a legal estate in land, nor affect any question
arising out of or consequent upon any omission to obtain
or any other absence of
possession by any person of any documents relating to a legal estate in
land.
14. Interests of persons in
possession. - This Part of this Act shall not prejudicially affect the
interest of any person in possession or in actual occupation of land to which
he
may be entitled in right of such possession or
occupation.
15. Presumption that
parties are of full age. - The persons expressed to be parties to any
conveyance shall, until the contrary is proved, be presumed to be of full age at
the date
thereof.
Death Duties.
16. Liability for Death
Duties. - (1) A personal representative shall be accountable for all
death duties which may become leviable or payable on the death of the deceased
in respect of land (including settled land) which devolves upon him by virtue of
any statute or otherwise.
(2) In every other case the estate owner (other
than a purchaser who acquires a legal estate after the charge for death duties
has
attached and free from such charge), shall be accountable for all the duties
aforesaid which become leviable or payable in respect
of his estate in the land
or any interest therein capable of being overreached by his conveyance, being a
conveyance to a purchaser
made under the Settled Land Act, 1925, or pursuant to
a trust for sale.
(3) For the purpose of raising the duty, and the costs
of raising the same, the personal representative or other person accountable
as
aforesaid shall have all the powers which are by any statute conferred for
raising the duty.
(4) Nothing in this Act shall alter any duty payable in
respect of land, or impose any duty thereon, or affect the remedies of the
Commissioners of Inland Revenue against any person other than a purchaser or a
person deriving title under him.
(5) Notwithstanding that any duties are
by this section made payable by the personal representative or other person
aforesaid, nothing
in this Part of this Act shall affect the liability of the
persons beneficially interested or their respective interests in respect
of any
duty and they shall accordingly account for or repay the same and any interest
and costs attributable thereto to the said
Commissioners or to the personal
representative or other person accountable as aforesaid, as the case may
require.
(6) Nothing in this Part of this Act shall impose on a personal
representative, tenant for life, statutory owner, trustee for sale,
or other
person in a fiduciary position, as such, any liability for payment of duty, in
excess of the assets (including land) vested
in him or in the trustees of the
settlement which may for the time being be available in his hands or in the
hands of such trustees
for the payment of the duty or which would have been so
available but for his or their own neglect or default or impose a charge
for
duties on leasehold land, or render a mortgage liable in respect of any charge
for duties which is not paramount to his mortgage.
(7) The said
Commissioners, on being satisfied that a personal representative or other person
accountable has paid or commuted or
will pay or commute all death duties for
which he is accountable in respect of the land or any part thereof, shall, if
required by
him, give a certificate to that effect, which shall discharge from
any further claim for such duty the land to which the certificate
extends, and
the production of such certificate to the land registrar or other proper officer
shall be a sufficient authority to
enable him to cancel any land charge
registered in respect of the duty so far as it affects the land to which the
certificate extends.
17.
Protection of purchasers from liability for
death duties. - (1) Where a charge in respect of death duties is not
registered as a land charge, a purchaser of a legal estate shall take free
therefrom,
unless the charge for duties attached before the commencement of this
Act and the purchaser had notice of the facts giving rise to
the
charge.
(2) Where a charge in respect of death duties is not registered
as a land charge, the person who conveys a legal estate to a purchaser,
and the
proceeds of sale, funds, and other property (if any) derived from the conveyance
and the income thereof shall (subject as
in this Act provided) be or remain
liable in respect of and stand charged with the payment of the death duties the
charge for which
is overreached by the conveyance, together with any interest
payable in respect of the same.
(3) Notwithstanding that any death duties
may be payable by instalments, on a conveyance of a legal estate by way of sale
exchange
or legal mortgage all death duties payable in respect of the land dealt
with and remaining unpaid shall, if the charge for the duties
is overreached by
such conveyance, immediately become payable and carry interest at the rate of
four pounds per centum per annum
from the date of the
conveyance:
Provided that, where by reason of this subsection an amount
is paid or becomes payable for duties and interest in excess of the amount
which
would have been payable if the duties had continued to be paid by instalments,
such excess shall be repaid or allowed as a
deduction by the Commissioners of
Inland Revenue.
(4) Except in the case of a conveyance to a purchaser, a
conveyance shall take effect subject to any subsisting charge or liability
for
payment of the duties and interest, if any, notwithstanding that the charge for
duties may not have been registered.
(5) This section does not apply to
registered land.
18. Application of
capital money in discharge of death duties. - (1) Capital money liable to
be laid out in the purchase of land to be settled in the same manner as the land
in respect of which any
death duties may have become payable, and personal
estate held on the same trusts as the proceeds of sale of land, being land held
on trust in respect of which any such duties may have become payable, may, by
the direction of the tenant for life, statutory owner,
or trustee for sale who
is accountable, and although the duty is only payable in respect of an interest
which is or is capable of
being overreached by a conveyance to a purchaser, be
applied in discharging all or any of the duties aforesaid and the costs of
discharging
the same.
(2) Where the duties would not, except by virtue of
the last subsection, be payable out of the capital money or personal estate
aforesaid-
(a) the amount so paid shall be repaid by the person liable for the duty to the trustees of the settlement or the trustees for sale by the like instalments and at the like rate of interest by and at which the unpaid duty and the interest thereon might have been paid, or, where the land has been conveyed to a purchaser, would have been paid if the land had not so been conveyed;
(b) in the interest of the person so liable, remaining subject to the settlement of the land or of the proceeds of sale, shall stand charged with the repayment of the instalments and the interest aforesaid;
(c) the trustees of the settlement or the trustees for sale shall be entitled to recover and receive any excess of duty which may become repayable by the said Commissioners.
Infants and Lunatics.
19. Effect of
conveyances of legal estates to infants. - (1) A conveyance of a legal
estate in land to an infant alone or to two or more persons jointly both or all
of whom are infants, shall
have such operation as is provided for in the Settled
Land Act, 1925.
(2) A conveyance of a legal estate in land to an infant,
jointly with one or more other persons of full age, shall operate to vest
the
legal estate in the other person or persons on the statutory trusts, but not so
as to sever any joint tenancy in the net proceeds
of sale or in the rents and
profits until sale, or affect the right of a tenant for life or statutory owner
to have settled land
vested in him.
(3) The foregoing provisions of this
section do not apply to conveyances on trust or by way of mortgage.
(4) A
conveyance of a legal estate to an infant alone or to two or more persons
jointly, both or all of whom are infants, on any trusts,
shall operate as a
declaration of trust and shall not be effectual to pass any legal
estate.
(5) A conveyance of a legal estate in land to an infant jointly
with one or more other persons of full age on any trusts shall operate
as if the
infant had not been named therein, but without prejudice to any beneficial
interest in the land intended to be thereby
provided for the infant.
(6)
A grant or transfer of a legal mortgage of land to an infant shall operate only
as an agreement for valuable consideration to
execute a proper conveyance when
the infant attains full age, and in the meantime to hold any beneficial interest
in the mortgage
debt in trust for the persons for whose benefit the conveyance
was intended to be made:
Provided that, if the conveyance is made to the
infant and another person or other persons of full age, it shall operate as if
the
infant had not been named therein, but without prejudice to any beneficial
interest in the mortgage debt intended to be thereby provided
for the
infant.
20. Infants not to be appointed
trustees. - The appointment of an infant to be a trustee in relation to
any settlement or trust shall be void, but without prejudice to the power
to
appoint a new trustee to fill the
vacancy.
21. Receipts by married
infants. - A married infant shall have power to give valid receipts for
all income (including statutory accumulations of income made during the
minority) to which the infant may be entitled in like manner as if the infant
were of full age.
22. Conveyances on
behalf of lunatics and defectives as to land held by them on trust for sale. -
(1) Where a legal estate in land (whether settled or not) is vested in a
lunatic, or a defective, either solely or jointly with any
other person or
persons, his committee or receiver shall, under an order in lunacy or of the
court, or under any statutory power,
make or concur in making all requisite
dispositions for conveying or creating a legal estate in the name and on behalf
of the lunatic
or defective.
(2) If land held on trust for sale is vested
in a lunatic, or a defective, either solely or jointly with any other person or
persons,
a new trustee shall be appointed in the place of that person, or he
shall be otherwise discharged from the trust, before the legal
estate is dealt
with under the trust for sale or under the powers vested in the trustees for
sale.]
Dispositions on Trust for Sale.
23. Duration of trusts
for sale. - Where land has, either before or after the commencement of
this Act, become subject to an express or implied trust for sale, such
trust
shall, so far as regards the safety and protection of any purchaser thereunder,
be deemed to be subsisting until the land has
been conveyed to or under the
direction of the persons interested in the proceeds of sale.
This section
applies to sales whether made before or after the commencement of this Act, but
operates without prejudice to an order
of any court restraining a
sale.
24. Appointment of trustees of
dispositions on trust for sale. - (1) The persons having power to appoint
new trustees of a conveyance of land on trust for sale shall be bound to appoint
the same
persons (if any) who are for the time being trustees of the settlement
of the proceeds of sale, but a purchaser shall not be concerned
to see whether
the proper persons are appointed to be trustees of the conveyance of the
land.
(2) This section applies whether the settlement of the proceeds of
sale or the conveyance on trust for sale comes into operation before
or after
the commencement of this Act.
25. Power
to postpone sale. - (1) A power to postpone sale shall, in the case of
every trust for sale of land, be implied unless a contrary intention
appears.
(2) Where there is a power to postpone the sale, then (subject
to any express direction to the contrary in the instrument, if any,
creating the
trust for sale) the trustees for sale shall not be liable in any way for
postponing the sale, in the exercise of their
discretion, for any indefinite
period; nor shall a purchaser of a legal estate be concerned in any case with
any directions respecting
the postponement of a sale.
(3) The foregoing
provisions of this section apply whether the trust for sale is created before or
after the commencement or by virtue
of this Act.
(4) Where a disposition
or settlement coming into operation after the commencement of this Act contains
a trust either to retain or
sell land the same shall be construed as a trust to
sell the land with power to postpone the
sale.
26. Consents to the execution of
a trust for sale. - (1) If the consent of more than two persons is by the
disposition made requisite to the execution of a trust for sale of land, then,
in favour of a purchaser, the consent of any two of such persons to the
execution of the trust or to the exercise of any statutory
or other powers
vested in the trustees for sale shall be deemed sufficient.
(2) Where the
person whose consent to the execution of any such trust or power is expressed to
be required in a disposition is not
sui juris or becomes subject to disability,
his consent shall not, in favour of a purchaser, be deemed to be requisite to
the execution
of the trust or the exercise of the power; but the trustees shall,
in any such case, obtain the separate consent of the parent or
testamentary or
other guardian of an infant or of the committee or receiver (if any) of a
lunatic or defective.
[(3) Trustees for sale shall so far as practicable
consult the persons of full age for the time being beneficially interested in
possession
in the rents and profits of the land until sale, and shall, so far as
consistent with the general interest of the trust, give effect
to the wishes of
such persons, or, in the case of dispute, of the majority (according to the
value of their combined interests) of
such persons, but a purchaser shall not be
concerned to see that the provisions of this subsection have been complied
with.
In the case of a trust for sale, not being a trust for sale created
by or in pursuance of the powers conferred by this or any other
Act, this
subsection shall not apply unless the contrary intention appears in the
disposition creating the trust.]
(4) This section applies whether the
trust for sale is created before or after the commencement or by virtue of this
Act.
27. Purchaser not to be concerned
with the trusts of the proceeds of sale which are to be paid to two or more
trustees or to a trust
corporation. - (1) A purchaser of a legal estate
from trustees for sale shall not be concerned with the trusts affecting the
proceeds of sale of
land subject to a trust for sale (whether made to attach to
such proceeds by virtue of this Act or otherwise), or affecting the rents
and
profits of the land until sale, whether or not those trusts are declared by the
same instrument by which the trust for sale is
created.
[(2)
Notwithstanding anything to the contrary in the instrument (if any) creating a
trust for sale of land or in the settlement of
the net proceeds, the proceeds of
sale or other capital money shall not be paid to or applied by the direction of
fewer than two
persons as trustees for sale, except where the trustee is a trust
corporation, but this subsection does not affect the right of a
sole personal
representative as such to give valid receipts for, or direct the application of,
proceeds of sale or other capital
money, nor, except where capital money arises
on the transaction, render it necessary to have more than one
trustee.]
28. Powers of management,
etc., conferred on trustees for sale. - (1) Trustees for sale shall, in
relation to land or to manorial incidents and to the proceeds of sale, have all
the powers of tenant
for life and the trustees of a settlement under the Settled
Land Act, 1925, including in relation to the land the powers of management
conferred by that Act during a minority: [and where by statute settled land is
or becomes vested in the trustees of the settlement
upon the statutory trusts,
such trustees and their successors in office shall also have all the additional
or larger powers (if any)
conferred by the settlement on the tenant for life,
statutory owner, or trustees of the settlement] and (subject to any express
trust
to the contrary) all capital money arising under the said powers shall,
unless paid or applied for any purpose authorised by the
Settled Land Act, 1925,
be applicable in the same manner as if the money represented proceeds of sale
arising under the trust for
sale.
All land acquired under this subsection
shall be conveyed to the trustees on trust for sale.
The power conferred
by this subsection shall be exercised with such consents (if any) as would have
been required on a sale under
the trust for sale, and when exercised shall
operate to overreach any equitable interests or powers which are by virtue of
this Act
or otherwise made to attach to the net proceeds of sale as if created
by a trust affecting those proceeds.
(2) Subject to any direction to the
contrary in the disposition on trust for sale or in the settlement of the
proceeds of sale, the
net rents and profits of the land until sale, after
keeping down costs of repairs and insurance and other outgoings shall be paid
or
applied, except so far as any part thereof may be liable to be set aside as
capital money under the Settled Land Act, 1925, in
like manner as the income of
investments representing the purchase money would be payable or applicable if a
sale had been made and
the proceeds had been duly invested.
(3) Where the
net proceeds of sale have under the trusts affecting the same become absolutely
vested in persons of full age in undivided
shares (whether or not such shares
may be subject to a derivative trust) the trustees for sale may, with the
consent of the persons,
if any, of full age, not being annuitants, interested in
possession in the net rents and profits of the land until sale:-
(a) partition the land remaining unsold or any part thereof; and
(b) provide (by way of mortgage or otherwise) for the payment of any equality money;
and, upon such partition being
arranged, the trustees for sale shall give effect thereto by conveying the land
so partitioned in severalty
(subject or not to any legal mortgage created for
raising equality money) to persons of full age and either absolutely or on trust
for sale or, where any part of the land becomes settled land, by a vesting deed,
or partly in one way and partly in another in accordance
with the rights of the
persons interested under the partition, but a purchaser shall not be concerned
to see or inquire whether any
such consent as aforesaid has been
given:
Provided that-
(i) If a share in the net proceeds belongs to a lunatic or defective, the consent of his committee or receiver shall be sufficient to protect the trustees for sale;
(ii) If a share in the net proceeds is affected by an encumbrance the trustees for sale may either give effect thereto or provide for the discharge thereof by means of the property allotted in respect of such share, as they may consider expedient.
(4) If a share in the net proceeds
is absolutely vested in an infant, the trustees for sale may act on his behalf
and retain land
(to be held on trust for sale) or other property to represent
his share, but in other respects the foregoing power shall apply as
if the
infant had been of full age.
(5) This section applies to dispositions on
trust for sale coming into operation either before or after the commencement or
by virtue
of this Act.
29. Delegation
of powers of management by trustees for sale. - (1) The powers of and
incidental to leasing, accepting surrenders of leases and management, conferred
on trustees for sale whether
by this Act or otherwise, may, until sale of the
land, be revocably delegated from time to time, by writing, signed by them, to
any
person of full age (not being merely an annuitant) for the time being
beneficially entitled in possession to the net rents and profits
of the land
during his life or for any less period: and in favour of a lessee such writing
shall, unless the contrary appears, be
sufficient evidence that the person named
therein is a person to whom the powers may be delegated, and the production of
such writing
shall, unless the contrary appears, be sufficient evidence that the
delegation has not been revoked.
(2) Any power so delegated shall be
exercised only in the names and on behalf of the trustees delegating the
power.
(3) The persons delegating any power under this section shall not,
in relation to the exercise or purported exercise of the power,
be liable for
the acts or defaults of the person to whom the power is delegated, but that
person shall, in relation to the exercise
of the power by him, be deemed to be
in the position and to have the duties and liabilities of a trustee.
(4)
Where, at the commencement of this Act, an order made under section seven of the
Settled Land Act, 1884, is in force, the person
on whom any power is thereby
conferred shall, while the order remains in force, exercise such power in the
names and on behalf of
the trustees for sale in like manner as if the power had
been delegated to him under this
section.
30. Powers of court where
trustees for sale refuse to exercise powers. - If the trustees for sale
refuse to sell or to exercise any of the powers conferred by either of the last
two sections, or any requisite
consent cannot be obtained, any person interested
may apply to the court for a vesting or other order for giving effect to the
proposed
transaction or for an order directing the trustees for sale to give
effect thereto, and the court may make such order as it thinks
fit.
31. Trust for sale of mortgaged
property where right of redemption is barred. - (1) Where any property,
vested in trustees by way of security, becomes, by virtue of the statutes of
limitation, or of an order for
foreclosure or otherwise, discharged from the
right of redemption, it shall be held by them on trust for sale.
(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; but this subsection operates
without prejudice to any rule of law relating to the apportionment of capital
and income between tenant for life and remainderman.
(3) This section
does 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.
(4) Where the mortgage money is capital money for the
purposes of the Settled Land Act, 1925, the trustees shall, if the tenant for
life or statutory owner so requires, instead of selling any land forming the
whole or part of such property, execute such subsidiary
vesting deed with
respect thereto as would have been required if the land had been acquired on a
purchase with capital money.
(5) This section applies whether the right
of redemption was discharged before or after the first day of January, nineteen
hundred
and twelve, but has effect without prejudice to any dealings or
arrangements made before that date.
32.
Implied trust for sale in personality settlements. - (1) Where a
settlement of personal property or of land held upon trust for sale contains a
power to invest money in the purchase of
land, such land shall, unless the
settlement otherwise provides, be held by the trustees on trust for sale; and
the net rents and
profits until sale, after keeping down costs of repairs and
insurance and other outgoings, shall be paid or applied in like manner
as the
income of investments representing the purchase-money would be payable or
applicable if a sale had been made and the proceeds
had been duly invested in
personal estate.
(2) This section applies to settlements (including
wills) coming into operation after the thirty-first day of December, nineteen
hundred
and eleven, and does not apply to capital money arising under the
Settled Land Act, 1925, or money liable to be treated as
such.
33. Application of Part I to
personal representatives. - The provisions of this Part of this Act
relating to trustees for sale apply to personal representatives holding on trust
for sale,
but without prejudice to their rights and powers for purposes of
administration.
Undivided Shares and Joint Ownership.
34. Effect of future
dispositions to tenants in common. - (1) An undivided share in land shall
not be capable of being created except as provided by the Settled Land Act,
1925, or as hereinafter
mentioned.
(2) Where, after the commencement of
this Act, land is expressed to be conveyed to any persons in undivided shares
and those persons
are of full age, the conveyance shall (notwithstanding
anything to the contrary in this Act) operate as if the land had been expressed
to be conveyed to the grantees, or, if there are more than four grantees, to the
four first named in the conveyance, as joint tenants
upon the statutory trusts
hereinafter mentioned and so as to give effect to the rights of the persons who
would have been entitled
to the shares had the conveyance operated to create
those shares:
Provided that, where the conveyance is made by way of
mortgage the land shall vest in the grantees or such four of them as aforesaid
for a term of years absolute (as provided by this Act) as joint tenants subject
to cesser on redemption in like manner as if the
mortgage money had belonged to
them on a joint account, but without prejudice to the beneficial interests in
the mortgage money and
interest.
(3) A devise bequest or testamentary
appointment, coming into operation after the commencement of this Act, of land
to two or more
persons in undivided shares shall operate as a devise bequest or
appointment of the land to the trustees (if any) of the will for
the purposes of
the Settled Land Act, 1925, or, if there are no such trustees, then to the
personal representatives of the testator,
and in each case (but without
prejudice to the rights and powers of the personal representatives for purposes
of administration)
upon the statutory trusts hereinafter mentioned.
(4)
Any disposition purporting to make a settlement of an undivided share in land
shall only operate as a settlement of a corresponding
share of the net proceeds
of sale and of the rents and profits until sale of the entirety of the
land.
35. Meaning of the statutory
trusts. - For the purposes of this Act land held upon the "statutory
trusts" shall be held upon the trusts and subject to the provisions following,
namely, upon trust to sell the same and to stand possessed of the net proceeds
of sale, after payment of costs, and of the net rents
and profits until sale
after payment of rates, taxes, costs of insurance, repairs, and other outgoings,
upon such trusts, and subject
to such powers and provisions, as may be requisite
for giving effect to the rights of the persons (including an incumbrancer of a
former undivided share or whose incumbrance is not secured by a legal mortgage)
interested in the land.
[Where-
(a) an undivided share was subject to a settlement, and
(b) the settlement remains subsisting in respect of other property, and
(c) the trustees thereof are not the same persons as the trustees for sale,
then
the statutory trusts include a trust for the trustees for sale to pay the proper
proportion of the net proceeds of sale or other
capital money attributable to
the share to the trustees of the settlement to be held by them as capital money
arising under the Settled
Land Act,
1925.]
36. Joint tenancies. -
(1) Where a legal estate (not being settled land) is beneficially limited
to or held in trust for any persons as joint tenants, the
same shall be held on
trust for sale, in like manner as if the persons beneficially entitled were
tenants in common, but not so as
to sever their joint tenancy in
equity.
(2) No severance of a joint tenancy of a legal estate, so as to
create a tenancy in common in land, shall be permissible, whether
by operation
of law or otherwise, but this subsection does not affect the right of a joint
tenant to release his interest to the
other joint tenants, or the right to sever
a joint tenancy in an equitable interest whether or not the legal estate is
vested in
the joint tenants:
Provided that, where a legal estate (not
being settled land) is vested in joint tenants beneficially, and any tenant
desires to sever
the joint tenancy in equity, he shall give to the other joint
tenants a notice in writing of such desire or do such other acts or
things as
would, in the case of personal estate, have been effectual to sever the tenancy
in equity, and thereupon under the trust
for sale affecting the land the net
proceeds of sale, and the net rents and profits until sale, shall be held upon
the trusts which
would have been requisite for giving effect to the beneficial
interests if there had been an actual severance.
[Nothing in this Act
affects the right of a survivor of joint tenants, who is solely and beneficially
interested, to deal with his
legal estate as if it were not held on trust for
sale.]
(3) Without prejudice to the right of a joint tenant to release
his interest to the other joint tenants no severance of a mortgage
term or trust
estate, so as to create a tenancy in common, shall be
permissible.
37. Rights of husband and
wife. - A husband and wife shall, for all purposes of acquisition of any
interest in property, under a disposition made or coming into operation
after
the commencement of this Act, be treated as two
persons.
38. Party structures. -
(1) Where under a disposition or other arrangement which, if a holding in
undivided shares had been permissible, would have created
a tenancy in common, a
wall or other structure is or is expressed to be made a party wall or structure,
that structure shall be and
remain severed vertically as between the respective
owners, and the owner of each part shall have such rights to support and user
over the rest of the structure as may be requisite for conferring rights
corresponding to those which would have subsisted if a valid
tenancy in common
had been created.
(2) Any person interested may, in case of dispute,
apply to the court for an order declaring the rights and interests under this
section
of the persons interested in any such party structure, and the court may
make such order as it thinks fit.
Transitional Provisions.
39. Transitional
provisions in First Schedule. - For the purpose of effecting the
transition from the law existing prior to the commencement of the Law of
Property Act, 1922, to the
law enacted by that Act (as amended), the provisions
set out in the First Schedule to this Act shall have effect-
(1) for
converting existing legal estates, interests and charges not capable under the
said Act of taking effect as legal interests
into equitable
interests;
(2) for discharging, getting in or vesting outstanding legal
estates;
(3) for making provision with respect to legal estates vested in
infants;
(4) for subjecting land held in undivided shares to trusts for
sale;
(5) for dealing with party structures and open spaces held in
common;
(6) for converting tenancies by entireties into joint
tenancies;
(7) for converting existing freehold mortgages into mortgages
by demise;
(8) for converting existing leasehold mortgages into mortgages
by sub-demise.
__________
PART II.
CONTRACTS, CONVEYANCES AND OTHER INSTRUMENTS.
Contracts.
40. Contracts for sale,
etc., of land to be in writing.- (1) No action may be brought upon any
contract for the sale or other disposition of land or any interest in land,
unless the agreement
upon which such action is brought, or some memorandum or
note thereof, is in writing, and signed by the party to be charged or by
some
other person thereunder by him lawfully authorised.
(2) This section
applies to contracts whether made before or after the commencement of this Act
and does not affect the law relating
to part performance or sales by the
court.
41. Stipulations not of the
essence of a contract.- Stipulations in a contract, as to time or
otherwise, which according to rules of equity are not deemed to be or to have
become of
the essence of the contract, are also construed and have effect at law
in accordance with the same rules.
42.
Provisions as to contracts.- (1) A stipulation that a purchaser of a
legal estate in land shall accept a title made with the concurrence of any
person entitled
to an equitable interest shall be void, if a title can be made
discharged from the equitable interest without such concurrence-
(a) under a trust for sale; or
(b) under this Act, or the Settled Land Act, 1925, or any other statute.
(2) A
stipulation that a purchaser of a legal estate in land shall pay or contribute
towards the costs of or incidental to-
(a) obtaining a vesting order, or the appointment of trustees of a settlement, or the appointment of trustees of a conveyance on trust for sale; or
(b) the preparation stamping or execution of a conveyance on trust for sale, or of a vesting instrument for bringing into force the provisions of the Settled Land Act, 1925;
shall be void.
(3) A stipulation contained in
any contract for the sale or exchange of land made after the commencement of
this Act, to the effect
that an outstanding legal estate is to be traced or got
in by or at the expense of a purchaser or that no objection is to be taken
on
account of an outstanding legal estate, shall be void.
(4) If the subject
matter of any contract for the sale or exchange of land-
(i) is a mortgage term and the vendor has power to convey the fee simple in the land, or, in the case of a mortgage of a term of years absolute, the leasehold reversion affected by the mortgage, the contract shall be deemed to extend to the fee simple in the land or such leasehold reversion;
(ii) is an equitable interest capable of subsisting as a legal estate, and the vendor has power to vest such legal estate in himself or in the purchaser or to require the same to be so vested, the contract shall be deemed to extend to such legal estate;
(iii) is an entailed interest in possession and the vendor has power to vest in himself or in the purchaser the fee simple in the land, (or, if the entailed interest is an interest in a term of years absolute, such term,) or to require the same to be so vested, the contract shall be deemed to extend to the fee simple in the land or the term of years absolute.
(5) This section does not affect the
right of a mortgagee of leasehold land to sell his mortgage term only if he is
unable to convey
or vest the leasehold reversion expectant thereon.
(6)
Any contract to convey an undivided share in land made before or after the
commencement of this Act, shall be deemed to be sufficiently
complied with by
the conveyance of a corresponding share in the proceeds of sale of the land in
like manner as if the contract had
been to convey that corresponding
share.
(7) Where a purchaser has power to acquire land compulsorily, and
a contract, whether by virtue of a notice to treat or otherwise,
is subsisting
under which title can be made without payment of the compensation money into
court, title shall be made in that way
unless the purchaser, to avoid expense or
delay or for any special reason, considers it expedient that the money should be
paid into
court.
(8) A vendor shall not have any power to rescind a
contract by reason only of the enforcement of any right under this
section.
(9) This section only applies in favour of a purchaser for money
or money's worth.
43. Rights protected
by registration.- (1) Where a purchaser of a legal estate is entitled to
acquire the same discharged from an equitable interest which is protected by
registration as a pending action, annuity, writ, order, deed of arrangement or
land charge, and which will not be overreached by
the conveyance to him, he may
notwithstanding any stipulation to the contrary, require-
(a) that the registration shall be cancelled; or
(b) that the person entitled to the equitable interest shall concur in the conveyance;
and in either case free of expense to the purchaser.
(2) Where the registration cannot
be cancelled or the person entitled to the equitable interest refuses to concur
in the conveyance,
this section does not affect the right of any person to
rescind the contract.
44. Statutory
commencements of title.- (1) After the commencement of this Act thirty
years shall be substituted for forty years as the period of commencement of
title which
a purchaser of land may require; nevertheless earlier title than
thirty years may be required in cases similar to those in which
earlier title
than forty years might immediately before the commencement of this Act be
required.
(2) Under a contract to grant or assign a term of years,
whether derived or to be derived out of freehold or leasehold land, the intended
lessee or assign shall not be entitled to call for the title to the
freehold.
(3) Under a contract to sell and assign a term of years derived
out of a leasehold interest in land, the intended assign shall not
have the
right to call for the title to the leasehold reversion.
(4) On a contract
to grant a lease for a term of years to be derived out of a leasehold interest,
with a leasehold reversion, the
intended lessee shall not have the right to call
for the title to that reversion.
(5) Where by reason of any of the three
last preceding subsections, an intending lessee or assign is not entitled to
call for the
title to the freehold or to a leasehold reversion, as the case may
be, he shall not, where the contract is made after the commencement
of this Act,
be deemed to be affected with notice of any matter or thing of which, if he had
contracted that such title should be
furnished, he might have had
notice.
(6) Where land of copyhold or customary tenure has been converted
into freehold by enfranchisement, then, under a contract to sell
and convey the
freehold, the purchaser shall not have the right to call for the title to make
the enfranchisement.
(7) Where the manorial incidents formerly affecting
any land have been extinguished, then, under a contract to sell and convey the
freehold, the purchaser shall not have the right to call for the title of the
person entering into any compensation agreement or
giving a receipt for the
compensation money to enter into such agreement or to give such receipt, and
shall not be deemed to be affected
with notice of any matter or thing of which,
if he had contracted that such title should be furnished, he might have had
notice.
(8) A purchaser shall not be deemed to be or ever to have been
affected with notice of any matter or thing of which, if he had investigated
the
title or made enquiries in regard to matters prior to the period of commencement
of title fixed by this Act, or by any other
statute, or by any rule of law, he
might have had notice, unless he actually makes such investigation or
enquiries.
(9) Where a lease whether made before or after the
commencement of this Act, is made under a power contained in a settlement, will,
Act of Parliament, or other instrument, any preliminary contract for or relating
to the lease shall not, for the purpose of the deduction
of title to an intended
assign, form part of the title, or evidence of the title, to the
lease.
(10) This section, save where otherwise expressly provided,
applies to contracts for sale whether made before or after the commencement
of
this Act, and applies to contracts for exchange in like manner as to contracts
for sale, save that it applies only to contracts
for exchange made after such
commencement.
(11) This section applies only if and so far as a contrary
intention is not expressed in the
contract.
45. Other statutory
conditions of sale.- (1) A purchaser of any property shall not-
(a) require the production, or any abstract or copy, of any deed, will, or other document, dated or made before the time prescribed by law, or stipulated, for the commencement of the title, even though the same creates a power subsequently exercised by an instrument abstracted in the abstract furnished to the purchaser; or
(b) require any information, or make any requisition, objection, or inquiry, with respect to any such deed, will, or document, or the title prior to that time, notwithstanding that any such deed, will, or other document, or that prior title, is recited, agreed to be produced, or noticed;
and he shall assume, unless the
contrary appears, that the recitals, contained in the abstracted instruments, of
any deed, will, or
other document, forming part of that prior title, are
correct, and give all the material contents of the deed, will, or other document
so recited, and that every document so recited was duly executed by all
necessary parties, and perfected, if and as required, by
fine, recovery,
acknowledgment, enrolment, or otherwise:
Provided that this subsection
shall not deprive a purchaser of the right to require the production, or an
abstract or copy of-
(i) any power of attorney under which any abstracted document is executed; or
(ii) any document creating or disposing of an interest, power or obligation which is not shown to have ceased or expired, and subject to which any part of the property is disposed of by an abstracted document; or
(iii) any document creating any limitation or trust by reference to which any part of the property is disposed of by an abstracted document.
(2) Where land sold is held by lease
(other than an under-lease), the purchaser shall assume, unless the contrary
appears, that the
lease was duly granted; and, on production of the receipt for
the last payment due for rent under the lease before the date of actual
completion of the purchase, he shall assume, unless the contrary appears, that
all the covenants and provisions of the lease have
been duly performed and
observed up to the date of actual completion of the purchase.
(3) Where
land sold is held by under-lease, the purchaser shall assume, unless the
contrary appears, that the under-lease and every
superior lease were duly
granted; and, on production of the receipt for the last payment due for rent
under the under-lease before
the date of actual completion of the purchase, he
shall assume, unless the contrary appears, that all the covenants and provisions
of the under-lease have been duly performed and observed up to the date of
actual completion of the purchase, and further that all
rent due under every
superior lease, and all the covenants and provisions of every superior lease,
have been paid and duly performed
and observed up to that date.
(4) On a
sale of any property, the following expenses shall be borne by the purchaser
where he requires them to be incurred for the
purpose of verifying the abstract
or any other purpose, that is to say-
(a) the expenses of the production and inspection of all Acts of Parliament, enclosure awards, records, proceedings of courts, court rolls, deeds, wills, probates, letters of administration, and other documents, not in the possession of the vendor or his mortgagee or trustee, and the expenses of all journeys incidental to such production or inspection; and
(b) the expenses of searching for, procuring, making, verifying, and producing all certificates, declarations, evidences, and information not in the possession of the vendor or his mortgagee or trustee, and all attested, stamped, office, or other copies or abstracts of, or extracts from, any Acts of Parliament or other documents aforesaid, not in the possession of the vendor or his mortgagee or trustee,
and where the vendor or his mortgagee
or trustee retains possession of any document, the expenses of making any copy
thereof, attested
or unattested, which a purchaser requires to be delivered to
him, shall be borne by that purchaser.
(5) On a sale of any property in
lots, a purchaser of two or more lots, held wholly or partly under the same
title, shall not have
a right to more than one abstract of the common title,
except at his own expense.
(6) Recitals, statements, and descriptions of
facts, matters, and parties contained in deeds, instruments, Acts of Parliament,
or
statutory declarations, twenty years old at the date of the contract, shall,
unless and except so far as they may be proved to be
inaccurate, be taken to be
sufficient evidence of the truth of such facts, matters, and
descriptions.
(7) The inability of a vendor to furnish a purchaser with
an acknowledgment of his right to production and delivery of copies of documents
of title or with a legal covenant to produce and furnish copies of documents of
title shall not be an objection to title in case
the purchaser will, on the
completion of the contract, have an equitable right to the production of such
documents.
(8) Such acknowledgments of the right of production or
covenants for production and such undertakings or covenants for safe custody
of
documents as the purchaser can and does require shall be furnished or made at
his expense, and the vendor shall bear the expense
of perusal and execution on
behalf of and by himself, and on behalf of and by necessary parties other than
the purchaser.
(9) A vendor shall be entitled to retain documents of
title where-
(a) he retains any part of the land to which the documents relate; or
(b) the document consists of a trust instrument or other instrument creating a trust which is still subsisting, or an instrument relating to the appointment or discharge of a trustee of a subsisting trust.
(10) This section applies to contracts
for sale made before or after the commencement of this Act, and applies to
contracts for exchange
in like manner as to contracts for sale, except that it
applies only to contracts for exchange made after such
commencement:
Provided that this section shall apply subject to any
stipulation or contrary intention expressed in the contract.
(11) Nothing
in this section shall be construed as binding a purchaser to complete his
purchase in any case where, on a contract made
independently of this section,
and containing stipulations similar to the provisions of this section, or any of
them, specific performance
of the contract would not be enforced against him by
the court.
46. Forms of contracts and
conditions of sale.- The Lord Chancellor may from time to time prescribe
and publish forms of contracts and conditions of sale of land, and the forms so
prescribed shall, subject to any modification, or any stipulation or intention
to the contrary, expressed in the correspondence,
apply to contracts by
correspondence, and may, but only by express reference thereto, be made to apply
to any other cases for which
the forms are made
available.
47. Application of insurance
money on completion of a sale or exchange.- (1) Where after the date of
any contract for sale or exchange of property, money becomes payable under any
policy of insurance maintained
by the vendor in respect of any damage to or
destruction of property included in the contract, the money shall, on completion
of
the contract, be held or receivable by the vendor on behalf of the purchaser
and paid by the vendor to the purchaser on completion
of the sale or exchange,
or so soon thereafter as the same shall be received by the vendor.
(2)
This section applies only to contracts made after the commencement of this Act,
and has effect subject to-
(a) any stipulation to the contrary contained in the contract,
(b) any requisite consents of the insurers,
(c) the payment by the purchaser of the proportionate part of the premium from the date of the contract.
(3) This section applies to a sale
or exchange by an order of the court, as if-
(a) for references to the "vendor" there were substituted references to the "person bound by the order";
(b) for the reference to the completion of the contract there were substituted a reference to the payment of the purchase or equality money (if any) into court;
(c) for the reference to the date of the contract there were substituted a reference to the time when the contract becomes binding.
48.
Stipulations preventing a purchaser, lessee, or underlessee from employing his
own solicitor to be void.- (1) Any stipulation made on the sale of any
interest in land after the commencement of this Act to the effect that the
conveyance
to, or the registration of the title of, the purchaser shall be
prepared or carried out at the expense of the purchaser by a solicitor
appointed
by or acting for the vendor, and any stipulation which might restrict a
purchaser in the selection of a solicitor to act
on his behalf in relation to
any interest in land agreed to be purchased, shall be void; and, if a sale is
effected by demise or
sub-demise, then, for the purposes of this subsection, the
instrument required for giving effect to the transaction shall be deemed
to be a
conveyance:
Provided that nothing in this subsection shall affect any
right reserved to a vendor to furnish a form of conveyance to a purchaser
from
which the draft can be prepared, or to charge a reasonable fee therefore, or,
where a perpetual rent charge is to be reserved
as the only consideration in
money or money's worth, the right of a vendor to stipulate that the draft
conveyance is to be prepared
by his solicitor at the expense of the
purchaser.
(2) Any covenant or stipulation contained in, or entered into
with reference to any lease or underlease made before or after the commencement
of this Act-
(a) whereby the right of preparing, at the expense of a purchaser, any conveyance of the estate or interest of the lessee or underlessee in the demised premises or in any part thereof, or of otherwise carrying out, at the expense of the purchaser, any dealing with such estate or interest, is expressed to be reserved to or vested in the lessor or underlessor or his solicitor; or
(b) which in any way restricts the right of the purchaser to have such conveyance carried out on his behalf by a solicitor appointed by him;
shall be void:
Provided that, where any
covenant or stipulation is rendered void by this subsection, there shall be
implied in lieu thereof a covenant
or stipulation that the lessee or underlessee
shall register with the lessor or his solicitor within six months from the date
thereof,
or as soon after the expiration of that period as may be practicable,
all conveyances and devolutions (including probates or letters
of
administration) affecting the lease or underlease and pay a fee of one guinea in
respect of each registration, and the power of
entry (if any) on breach of any
covenant contained in the lease or underlease shall apply and extend to the
breach of any covenant
so to be implied.
(3) Save where a sale is
effected by demise or sub-demise, this section does not affect the law relating
to the preparation of a lease
or underlease or the draft thereof.
(4) In
this section "lease" and "underlease" include any agreement therefore or other
tenancy, and "lessee" and "underlessee" and
"lessor" and "underlessor" have
corresponding meanings.
49.
Applications to the court by vendor and purchaser.- (1) A vendor or
purchaser of any interest in land, or their representatives respectively, may
apply in a summary way to the court,
in respect of any requisitions or
objections, or any claim for compensation, or any other question arising out of
or connected with
the contract (not being a question affecting the existence or
validity of the contract), and the court may make such order upon the
application as to the court may appear just, and may order how and by whom all
or any of the costs of and incident to the application
are to be borne and
paid.
(2) Where the court refuses to grant specific performance of a
contract, or in any action for the return of a deposit, the court may,
if it
thinks fit, order the repayment of any deposit.
(3) This section applies
to a contract for the sale or exchange of any interest in
land.
50. Discharge of encumbrances by
the court on sales or exchanges.-(1) Where land subject to any
encumbrance, whether immediately realisable or payable or not, is sold or
exchanged by the court, or
out of court, the court may, if it thinks fit, on the
application of any party to the sale or exchange, direct or allow payment into
court of such sum as is hereinafter mentioned, that is to say-
(a) in the case of an annual sum charged on the land, or of a capital sum charged on a determinable interest in the land, the sum to be paid into court shall be of such amount as, when invested in Government securities, the court considers will be sufficient, by means of the dividends thereof, to keep down or otherwise provide for that charge; and
(b) in any other case of capital money charged on the land, the sum to be paid into court shall be of an amount sufficient to meet the encumbrance and any interest due thereon;
but in either case there shall also
be paid into court such additional amount as the court considers will be
sufficient to meet the
contingency of further costs, expenses and interest, and
any other contingency, except depreciation of investments, not exceeding
one-tenth part of the original amount to be paid in, unless the court for
special reason thinks fit to require a larger additional
amount.
(2)
Thereupon, the court may, if it thinks fit, and either after or without any
notice to the incumbrancer, as the court thinks fit,
declare the land to be
freed from the incumbrance, and make any order for conveyance, or vesting order,
proper for giving effect
to the sale or exchange, and give directions for the
retention and investment of the money in court and for the payment or
application
of the income thereof.
(3) The court may declare all other
land, if any, affected by the encumbrance (besides the land sold or exchanged)
to be freed from
the encumbrance, and this power may be exercised either after
or without notice to the incumbrancer, and notwithstanding that on
a previous
occasion an order, relating to the same encumbrance, has been made by the court
which was confined to the land then sold
or exchanged.
(4) On any
application under this section the court may, if it thinks fit, as respects any
vendor or purchaser, dispense with the
service of any notice which would
otherwise be required to be served on the vendor or purchaser.
(5) After
notice served on the persons interested in or entitled to the money or fund in
court, the court may direct payment or transfer
thereof to the persons entitled
to receive or give a discharge for the same, and generally may give directions
respecting the application
or distribution of the capital or income
thereof.
(6) This section applies to sales or exchanges whether made
before or after the commencement of this Act, and to encumbrances whether
created by statute or otherwise.
51.
Lands lie in grant only.- (1) All lands and all interests therein lie in
grant and are incapable of being conveyed by livery or livery and seisin, or by
feoffment,
or by bargain and sale; and a conveyance of an interest in land may
operate to pass the possession or right to possession thereof,
without actual
entry, but subject to all prior rights thereto.
(2) The use of the word
grant is not necessary to convey land or to create any interest
therein.
52. Conveyances to be by
deed.- (1) All conveyances of land or of any interest therein are void
for the purpose of conveying or creating a legal estate unless made
by
deed.
(2) This section does not apply to-
(a) assents by a personal representative;
(b) disclaimers made in accordance with section fifty-four of the Bankruptcy Act, 1914, or not required to be evidenced in writing;
(c) surrenders by operation of law, including surrenders which may, by law, be effected without writing;
(d) leases or tenancies or other assurances not required by law to be made in writing;
(e) receipts not required by law to be under seal;
(f) vesting orders of the court or other competent authority;
(g) conveyances taking effect by operation of law.
53.
Instruments required to be in writing.- (1) Subject to the provision
hereinafter contained with respect to the creation of interests in land by
parol-
(a) no interest in land can be created or disposed of except by writing signed by the person creating or conveying the same, or by his agent thereunto lawfully authorised in writing, or by will, or by operation of law;
(b) a declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by his will;
(c) a disposition of an equitable interest or trust subsisting at the time of the disposition, must be in writing signed by the person disposing of the same, or by his agent thereunto lawfully authorised in writing or by will.
(2) This
section does not affect the creation or operation of resulting, implied or
constructive trusts.
54. Creation of
interests in land by parol. (1) All interests in land created by parol
and not put in writing and signed by the persons so creating the same, or by
their agents
thereunto lawfully authorised in writing, have, notwithstanding any
consideration having been given for the same, the force and effect
of interests
at will only.
(2) Nothing in the foregoing provisions of this Part of
this Act shall affect the creation by parol of leases taking effect in
possession
for a term not exceeding three years (whether or not the lessee is
given power to extend the term) at the best rent which can be
reasonably
obtained without taking a fine.
55.
Savings in regard to last two sections.- Nothing in the last two
foregoing sections shall-
(a) invalidate dispositions by will; or
(b) affect any interest validly created before the commencement of this Act; or
(c) affect the right to acquire an interest in land by virtue of taking possession; or
(d) affect the operation of the law relating to part performance.
56.
Persons taking who are not parties and as to indentures.- (1) A person
may take an immediate or other interest in land or other property, or the
benefit of any condition, right of entry,
covenant or agreement over or
respecting land or other property, although he may not be named as a party to
the conveyance or other
instrument.
(2) A deed between parties, to effect
its objects, has the effect of an indenture though not indented or expressed to
be an indenture.
57. Description of
deeds.- Any deed, whether or not being an indenture, may be described (at
the commencement thereof or otherwise) as a deed simply, or as
a conveyance,
deed of exchange, vesting deed; trust instrument, settlement, mortgage, charge,
transfer of mortgage, appointment,
lease or otherwise according to the nature of
the transaction intended to be
effected.
58. Provisions as to
supplemental instruments.- Any instrument (whether executed before or
after the commencement of this Act) expressed to be supplemental to a previous
instrument,
shall, as far as may be, be read and have effect as if the
supplemental instrument contained a full recital of the previous instrument,
but
this section does not operate to give any right to an abstract or production of
any such previous instrument, and a purchaser
may accept the same evidence that
the previous instrument does not affect the title as if it had merely been
mentioned in the supplemental
instrument.
59. Conditions and certain
covenants not implied.- (1) An exchange or other conveyance of land made
by deed after the first day of October, eighteen hundred and forty-five, does
not
imply any condition in law.
(2) The word "give" or "grant" does not
in a deed made after the date last aforesaid, imply any covenant in law, save
where otherwise
provided by
statute.
60. Abolition of
technicalities in regard to conveyances and deeds.- (1) A conveyance of
freehold land to any person without words of limitation, or any equivalent
expression, shall pass to the grantee
the fee simple or other the whole interest
which the grantor had power to convey in such land, unless a contrary intention
appears
in the conveyance.
(2) A conveyance of freehold land to a
corporation sole by his corporate designation without the word "successors"
shall pass to the
corporation the fee simple or other the whole interest which
the grantor had power to convey in such land, unless a intention appears
in the
conveyance.
(3) In a voluntary conveyance a resulting trust for the
grantor shall not be implied merely by reason that the property is not expressed
to be conveyed for the use or benefit of the grantee.
(4) The foregoing
provisions of this section apply only to conveyances and deeds executed after
the commencement of this Act:
Provided that in a deed executed after the
thirty-first day of December, eighteen hundred and eighty-one, it is
sufficient-
(a) In the limitation of an estate in fee simple, to use the words "in fee simple", without the word "heirs";
(b) In the limitation of an estate tail, to use the words "in tail" without the words "heirs of the body"; and
(c) In the limitation of an estate in tail male or in tail female, to use the words "in tail male" or "in tail female", as the case requires, without the words "heirs male of the body", or "heirs female of the body."
61.
Construction of expressions used in deeds and other instruments.- In all
deeds, contracts, wills, orders and other instruments executed, made or coming
into operation after the commencement of this
Act, unless the context otherwise
requires-
(a) "Month" means calendar month;
(b) "Person" includes a corporation;
(c) The singular includes the plural and vice versa;
(d) The masculine includes the feminine and vice versa.
62.
General words implied in conveyances.- (1) A conveyance of land shall be
deemed to include and shall by virtue of this Act operate to convey, with the
land, all buildings,
erections, fixtures, commons, hedges, ditches, fences,
ways, waters, water-courses, liberties, privileges, easements, rights, and
advantages whatsoever, appertaining or reputed to appertain to the land, or any
part thereof, or, at the time of conveyance, demised,
occupied, or enjoyed with
or reputed or known as part or parcel of or appurtenant to the land or any part
thereof.
(2) A conveyance of land, having houses or other buildings
thereon, shall be deemed to include and shall by virtue of this Act operate
to
convey, with the land, houses, or other buildings, all outhouses, erections,
fixtures, cellars, areas, courts, courtyards, cisterns,
sewers, gutters, drains,
ways, passages, lights, water-courses, liberties, privileges, easements, rights,
and advantages whatsoever,
appertaining or reputed to appertain to the land,
houses, or other buildings conveyed, or any of them, or any part thereof, or, at
the time of conveyance, demised, occupied, or enjoyed with, or reputed or known
as part or parcel of or appurtenant to, the land,
houses, or other buildings
conveyed, or any of them, or any part thereof.
(3) A conveyance of a
manor shall be deemed to include and shall by virtue of this Act operate to
convey, with the manor, all pastures,
feedings, wastes, warrens, commons, mines,
minerals, quarries, furzes, trees, woods, underwoods, coppices, and the ground
and soil
thereof, fishings, fisheries, fowlings, courts leet, courts baron, and
other courts, view of frankpledge and all that to view of
frankpledge doth
belong, mills, mulctures, customs, tolls, duties, reliefs, heriots, fines, sums
of money, amerciaments, waifs, estrays,
chief-rents, quitrents, rentscharge,
rents seck, rents of assize, fee farm rents, services, royalties jurisdictions,
franchises,
liberties, privileges, easements, profits, advantages, rights,
emoluments, and hereditaments whatsoever, to the manor appertaining
or reputed
to appertain, or, at the time of conveyance, demised, occupied, or enjoyed with
the same, or reputed or known as part,
parcel, or member thereof.
For the
purposes of this subsection the right to compensation for manorial incidents on
the extinguishment thereof shall be deemed
to be a right appertaining to the
manor.
(4) This section applies only if and as far as a contrary
intention is not expressed in the conveyance, and has effect subject to
the
terms of the conveyance and to the provisions therein contained.
(5) This
section shall not be construed as giving to any person a better title to any
property, right, or thing in this section mentioned
than the title which the
conveyance gives to him to the land or manor expressed to be conveyed, or as
conveying to him any property,
right, or thing in this section mentioned,
further or otherwise than as the same could have been conveyed to him by the
conveying
parties.
(6) This section applies to conveyances made after the
thirty-first day of December, eighteen hundred and
eighty-one.
63. All estate clause
implied.- (1) Every conveyance is effectual to pass all the estate,
right, title, interest, claim, and demand which the conveying parties
respectively
have, in, to, or on the property conveyed, or expressed or intended
so to be, or which they respectively have power to convey in,
to, or on the
same.
(2) This section applies only if and as far as a contrary intention
is not expressed in the conveyance, and has effect subject to
the terms of the
conveyance and to the provisions therein contained.
(3) This section
applies to conveyances made after the thirty-first day of December, eighteen
hundred and eighty-one.
64. Production
and safe custody of documents.- (1) Where a person retains possession of
documents, and gives to another an acknowledgment in writing of the right of
that other to
production of those documents and to delivery of copies thereof
(in this section called an acknowledgment), that acknowledgment shall
have
effect as in this section provided.
(2) An acknowledgment shall bind the
documents to which it relates in the possession or under the control of the
person who retains
them, and in the possession or under the control of every
other person having possession or control thereof from time to time, but
shall
bind each individual possessor or person as long only as he has possession or
control thereof; and every person so having possession
or control from time to
time shall be bound specifically to perform the obligations imposed under this
section by an acknowledgment,
unless prevented from so doing by fire or other
inevitable accident.
(3) The obligations imposed under this section by an
acknowledgment are to be performed from time to time at the request in writing
of the person to whom an acknowledgment is given, or of any person, not being a
lessee at a rent, having or claiming any estate,
interest, or right through or
under that person, or otherwise becoming through or under that person interested
in or affected by
the terms of any document to which the acknowledgment
relates.
(4) The obligations imposed under this section by an
acknowledgment are -
(i) An obligation to produce the documents or any of them at all reasonable times for the purpose of inspection, and of comparison with abstracts or copies thereof, by the person entitled to request production or by any person by him authorised in writing; and
(ii) An obligation to produce the documents or any of them at any trial, hearing, or examination in any court, or in the execution of any commission, or elsewhere in the United Kingdom, on any occasion on which production may properly be required, for proving or supporting the title or claim of the person entitled to request production, or for any other purpose relative to that title or claim; and
(iii) An obligation to deliver to the person entitled to request the same true copies or extracts, attested or unattested, of or from the documents or any of them.
(5) All costs and expenses of or
incidental to the specific performance of any obligation imposed under this
section by an acknowledgment
shall be paid by the person requesting
performance.
(6) An acknowledgment shall not confer any right to damages
for loss or destruction of, or injury to, the documents to which it relates,
from whatever cause arising.
(7) Any person claiming to be entitled to
the benefit of an acknowledgment may apply to the court for an order directing
the production
of the documents to which it relates, or any of them, or the
delivery of copies of or extracts from those documents or any of them
to him, or
some person on his behalf; and the court may, if it thinks fit, order
production, or production and delivery, accordingly,
and may give directions
respecting the time, place, terms, and mode of production or delivery, and may
make such order as it thinks
fit respecting the costs of the application, or any
other matter connected with the application.
(8) An acknowledgment shall
by virtue of this Act satisfy any liability to give a covenant for production
and delivery of copies of
or extracts from documents.
(9) Where a person
retains possession of documents and gives to another an undertaking in writing
for safe custody thereof, that undertaking
shall impose on the person giving it,
and on every person having possession or control of the documents from time to
time, but on
each individual possessor or person as long only as he has
possession or control thereof, an obligation to keep the documents safe,
whole,
uncancelled, and undefaced, unless prevented from so doing by fire or other
inevitable accident.
(10) Any person claiming to be entitled to the
benefit of such an undertaking may apply to the court to assess damages for any
loss
or destruction of, or injury to, the documents or any of them, and the
court may, if it thinks fit, direct an inquiry respecting
the amount of damages,
and order payment thereof by the person liable, and may make such order as it
thinks fit respecting the costs
of the application, or any other matter
connected with the application.
(11) An undertaking for safe custody of
documents shall by virtue of this Act satisfy any liability to give a covenant
for safe custody
of documents.
(12) The rights conferred by an
acknowledgment or an undertaking under this section shall be in addition to all
such other rights
relative to the production, or inspection, or the obtaining of
copies of documents, as are not, by virtue of this Act, satisfied
by the giving
of the acknowledgment or undertaking, and shall have effect subject to the terms
of the acknowledgment or undertaking,
and to any provisions therein
contained.
(13) This section applies only if and as far as a contrary
intention is not expressed in the acknowledgment or undertaking.
(14)
This section applies to an acknowledgment or undertaking given, or a liability
respecting documents incurred, after the thirty-first
day of December, eighteen
hundred and eighty-one.
65. Reservation
of legal estates.- (1) A reservation of a legal estate shall operate at
law without any execution of the conveyance by the grantee of the legal estate
out of which the reservation is made, or any regrant by him, so as to create the
legal estate reserved, and so as to vest the same
in possession in the person
(whether being the grantor or not) for whose benefit the reservation is
made.
(2) A conveyance of a legal estate expressed to be made subject to
another legal estate not in existence immediately before the date
of the
conveyance, shall operate as a reservation, unless a contrary intention
appears.
(3) This section applies only to reservations made after the
commencement of this Act.
66.
Confirmation of past transactions.- (1) A deed containing a declaration
by the estate owner that his estate shall go and devolve in such a manner as may
be requisite
for confirming any interests intended to affect his estate and
capable under this Act of subsisting as legal estates which, at some
prior date,
were expressed to have been transferred or created, and any dealings therewith
which would have been legal if those interests
had been legally and validly
transferred or created, shall, to the extent of the estate of the estate owner,
but without prejudice
to the restrictions imposed by this Act in the case of
mortgages, operate to give legal effect to the interests so expressed to have
been transferred or created and to the subsequent dealings aforesaid.
(2)
The powers conferred by this section may be exercised by a tenant for life or
statutory owner, trustee for sale or a personal
representative (being in each
case an estate owner) as well as by an absolute owner, but if exercised by any
person, other than an
absolute owner, only with the leave of the
court.
(3) This section applies only to deeds containing such a
declaration as aforesaid if executed after the commencement of this
Act.
67. Receipt in deed sufficient.-
(1) A receipt for consideration money or securities in the body of a deed
shall be a sufficient discharge for the same to the person
paying or delivering
the same, without any further receipt for the same being indorsed on the
deed.
(2) This section applies to deeds executed after the thirty-first
day of December, eighteen hundred and
eighty-one.
68. Receipt in deed or
indorsed evidence.- (1) A receipt for consideration money or other
consideration in the body of a deed or indorsed thereon shall, in favour of a
subsequent
purchaser, not having notice that the money or other consideration
thereby acknowledged to be received was not in fact paid or given,
wholly or in
part, be sufficient evidence of the payment or giving of the whole amount
thereof.
(2) This section applies to deeds executed after the
thirty-first day of December, eighteen hundred and
eighty-one.
69. Receipt in deed or
indorsed authority for payment to solicitor.- (1) Where a solicitor
produces a deed, having in the body thereof or indorsed thereon a receipt for
consideration money or other
consideration, the deed being executed, or the
indorsed receipt being signed, by the person entitled to give a receipt for that
consideration,
the deed shall be a sufficient authority to the person liable to
pay or give the same for his paying or giving the same to the solicitor,
without
the solicitor producing any separate or other direction or authority in that
behalf from the person who executed or signed
the deed or receipt.
(2)
This section applies whether the consideration was paid or given before or after
the commencement of this Act.
70.
Partial release of security from rentcharge.- (1) A release from a rent
charge of part of the land charged therewith does not extinguish the whole rent
charge, but operates only
to bar the right to recover any part of the rentcharge
out of the land released, without prejudice to the rights of any persons
interested
in the land remaining unreleased, and not concurring in or confirming
the release.
(2) This section applies to releases made after the twelfth
day of August, eighteen hundred and
fifty-nine.
71. Release of part of land
affected from a judgment.- (1) A release from a judgment (including any
writ or order imposing a charge) of part of any land charged therewith does not
affect
the validity of the judgment as respects any land not specifically
released.
(2) This section operates without prejudice to the rights of
any persons interested in the property remaining unreleased and not concurring
in or confirming the release.
(3) This section applies to releases made
after the twelfth day of August, eighteen hundred and
fifty-nine.
72. Conveyances by a person
to himself, etc.- (1) In conveyances made after the twelfth day of
August, eighteen hundred and fifty-nine, personal property, including chattels
real,
may be conveyed by a person to himself jointly with another person by the
like means by which it might be conveyed by him to another
person.
(2) In
conveyances made after the thirty-first day of December, eighteen hundred and
eighty-one, freehold land, or a thing in action,
may be conveyed by a person to
himself jointly with another person, by the like means by which it might be
conveyed by him to another
person; and may, in like manner, be conveyed by a
husband to his wife, and by a wife to her husband, alone or jointly with another
person.
(3) After the commencement of this Act a person may convey land
to or vest land in himself.
(4) Two or more persons (whether or not being
trustees or personal representatives) may convey, and shall be deemed always to
have
been capable of conveying, any property vested in them to any one or more
of themselves in like manner as they could have conveyed
such property to a
third party; provided that if the persons in whose favour the conveyance is made
are, by reason of any fiduciary
relationship or otherwise, precluded from
validly carrying out the transaction, the conveyance shall be liable to be set
aside.
73. Execution of deeds by an
individual.- (1) Where an individual executes a deed, he shall either
sign or place his mark upon the same and sealing alone shall not be deemed
sufficient.
(2) This section applies only to deeds executed after the
commencement of this Act.
74.
-Execution of instruments by or on behalf of corporations.- (1) In favour
of a purchaser a deed shall be deemed to have been duly executed by a
corporation aggregate if its seal be affixed
thereto in the presence of and
attested by its clerk, secretary or other permanent officer or his deputy, and a
member of the board
of directors, council or other governing body of the
corporation, and where a seal purporting to be the seal of a corporation has
been affixed to a deed, attested by persons purporting to be persons holding
such offices as aforesaid, the deed shall be deemed
to have been executed in
accordance with the requirements of this section, and to have taken effect
accordingly.
(2) The board of directors, council or other governing body
of a corporation aggregate may, by resolution or otherwise, appoint an
agent
either generally or in any particular case, to execute on behalf of the
corporation any agreement or other instrument not under
seal in relation to any
matter within the powers of the corporation.
(3) Where a person is
authorised under a power of attorney or under any statutory or other power to
convey any interest in property
in the name or on behalf of a corporation sole
or aggregate, he may as attorney execute the conveyance by signing the name of
the
corporation in the presence of at least one witness, and in the case of a
deed by affixing his own seal, and such execution shall
take effect and be valid
in like manner as if the corporation had executed the conveyance.
(4)
Where a corporation aggregate is authorised under a power of attorney or under
any statutory or other power to convey any interest
in property in the name or
on behalf of any other person (including another corporation), an officer
appointed for that purpose by
the board of directors, council or other governing
body of the corporation by resolution or otherwise, may execute the deed or
other
instrument in the name of such other person; and where an instrument
appears to be executed by an officer so appointed, then in favour
of a purchaser
the instrument shall be deemed to have been executed by an officer duly
authorised.
(5) The foregoing provisions of this section apply to
transactions wherever effected, but only to deeds and instruments executed after
the commencement of this Act, except that, in the case of powers or appointments
of an agent or officer, they apply whether the power
was conferred or the
appointment was made before or after the commencement of this Act or by this
Act.
(6) Notwithstanding anything contained in this section, any mode of
execution or attestation authorised by law or by practice or by
the statute,
charter, memorandum or articles, deed of settlement or other instrument
constituting the corporation or regulating the
affairs thereof, shall (in
addition to the modes authorised by this section) be as effectual as if this
section had not been passed.
75. Rights
of purchaser as to execution.- (1) On a sale, the purchaser shall not be
entitled to require that the conveyance to him be executed in his presence, or
in that
of his solicitor, as such; but shall be entitled to have, at his own
cost, the execution of the conveyance attested by some person
appointed by him,
who may, if he thinks fit, be his solicitor.
(2) This section applies to
sales made after the thirty-first day of December, eighteen hundred and
eighty-one.
Covenants
76. Covenants for
title.- (1) In a conveyance there shall, in the several cases in this
section mentioned, be deemed to be included, and there shall in those
several
cases, by virtue of this Act, be implied, a covenant to the effect in this
section stated, by the person or by each person
who conveys, as far as regards
the subject-matter or share of subject-matter expressed to be conveyed by him,
with the person, if
one, to whom the conveyance is made, or with the persons
jointly, if more than one, to whom the conveyance is made as joint tenants,
or
with each of the persons, if more than one, to whom the conveyance is (when the
law permits) made as tenants in common, that is
to says:
(A) In a conveyance for valuable consideration, other than a mortgage, a covenant by a person who conveys and is expressed to convey as beneficial owner in the terms set out in Part I. of the Second Schedule to this Act;
(B) In a conveyance of leasehold property for valuable consideration, other than a mortgage, a further covenant by a person who conveys and is expressed to convey as beneficial owner in the terms set out in Part II. of the Second Schedule to this Act;
(C) In a conveyance by way of mortgage (including a charge) a covenant by a person who conveys or charges and is expressed to convey or charge as beneficial owner in the terms set out in Part III. of the Second Schedule to this Act;
(D) In a conveyance by way of mortgage (including a charge) of freehold property subject to a rent or of leasehold property, a further covenant by a person who conveys or charges and is expressed to convey or charge as beneficial owner in the terms set out in Part IV. of the Second Schedule to this Act;
(E) In a conveyance by way of settlement, a covenant by a person who conveys and is expressed to convey as settler in the terms set out in Part V. of the Second Schedule to this Act;
(F) In any conveyance, a covenant by every person who conveys and is expressed to convey as trustee or mortgagee, or as personal representative of a deceased person, or as personal representative of a deceased person, or as committee of a lunatic or as receiver of a defective, or under an order of the court, in the terms set out in Part VI. of the Second Schedule to this Act, which covenant shall be deemed to extend to every such person's own acts only, and may be implied in an assent by a personal representative in like manner as in a conveyance by deed.
(2) Where in a conveyance it is
expressed that by direction of a person expressed to direct as beneficial owner
another person conveys,
then, for the purposes of this section, the person
giving the direction, whether he conveys and is expressed to convey as
beneficial
owner or not, shall be deemed to convey and to be expressed to convey
as beneficial owner the subject-matter so conveyed by his direction;
and a
covenant on his part shall be implied accordingly.
(3) Where a wife
conveys and is expressed to convey as beneficial owner, and the husband also
conveys and is expressed to convey as
beneficial owner, then, for the purposes
of this section, the wife shall be deemed to convey and to be expressed to
convey by direction
of the husband, as beneficial owner; and, in addition to the
covenant implied on the part of the wife, there shall also be implied,
first, a
covenant on the part of the husband as the person giving that direction, and
secondly, a covenant on the part of the husband
in the same terms as the
covenant implied on the part of the wife.
(4) Wherein a conveyance a
person conveying is not expressed to convey as beneficial owner, or as settlor,
or as trustee, or as mortgagee,
or as personal representative of a deceased
person, or as committee of a lunatic or as receiver of a defective, or under an
order
of the court, or by direction of a person as beneficial owner, no covenant
on the part of the person conveying shall be, by virtue
of this section, implied
in the conveyance.
(5) In this section a conveyance does not include a
demise by way of lease at a rent, but does include a charge and "convey" has a
corresponding meaning.
(6) The benefit of a covenant implied as aforesaid
shall be annexed and incident to, and shall go with, the estate or interest of
the implied covenantee, and shall be capable o f being enforced by every person
in whom that estate or interest is, for the whole
or any part thereof, from time
to time vested.
(7) A covenant implied as aforesaid may be varied or
extended by a deed or an assent, and as so varied or extended, shall, as far
as
may be, operate in the like manner, and with all the like incidents, effects,
and consequences, as if such variations or extensions
were directed in this
section to be implied.
(8) This section applies to conveyances made after
the thirty-first day of December, eighteen hundred and eighty-one, but only to
assents by a personal representative made after the commencement of this
Act.
77. Implied covenants in
conveyances subject to rents.- (1) In addition to the covenants implied
under the last preceding section, there shall in the several cases in this
section mentioned,
be deemed to be included and implied, a covenant to the
effect in this section stated, by and with such persons as are hereinafter
mentioned, that is to say:-
(A) In a conveyance for valuable consideration, other than a mortgage, of the entirety of the land affected by a rentcharge, a covenant by the grantee or joint and several covenants by the grantees, if more than one, with the conveying parries and with each of them, if more than one, in the terms set out in Part VII. of the Second Schedule to this Act. Where a rent charge has been apportioned in respect of any land, with the consent of the owner of the rent charge, the covenants in this paragraph shall be implied in the conveyance of that land in like manner as if the apportioned rent charge were the rent charge referred to, and the document creating the rent charge related solely to that land:
(B) In a conveyance for valuable consideration, other than a mortgage, of part of land affected by a rentcharge, subject to a part of that rent charge which has been or is by that conveyance apportioned (but in either case without the consent of the owner of the rentcharge) in respect of the land conveyed:-
(i) A covenant by the grantee of the land or joint and several covenants by the grantees, if more than one, with the conveying parties and with each of them, if more than one, in the terms set out in paragraph (i) of Part VIII. of the Second Schedule to this Act;
(ii) A covenant by a person who conveys or is expressed to convey as beneficial owner, or joint and several covenants by the persons who so convey or are expressed to so convey, if at the date of the conveyance any part of the land affected by such rent charge is retained, with the grantees of the land and with each of them (if more than one) in the terms set out in paragraph (ii) of Part VIII. of the Second Schedule to this Act:
(C) In a conveyance for valuable consideration, other than a mortgage, of the entirety of the land comprised in a lease, for the residue of the term or interest created by the lease, a covenant by the assignee or joint and several covenants by the assignees (if more than one) with the conveying parties an