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[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 and with each of them (if more than one) in the terms set out in Part IX. of the Second Schedule to this Act. Where a rent has been apportioned in respect of any land, with the consent of the lessor, the covenants in this paragraph shall be implied in the conveyance of that land in like manner as if the apportioned rent were the original rent reserved, and the lease related solely to that land:
(D) In a conveyance for valuable consideration, other than a mortgage, of part of the land comprised in a lease, for the residue of the term or interest created by the lease, subject to apart of the rent which has been or is by the conveyance apportioned (but in either case without the consent of the lessor) in respect of the land conveyed:-
(i) A covenant by the assignee of the land, or joint and several covenants by the assignees, 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 X. 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 comprised in the lease is retained, with the assignees of the land and with each of them (if more than one) in the terms set out in paragraph (ii) of Part X. of the Second Schedule to this Act.
(2) Where in a conveyance
for valuable consideration other than a mortgage, part of land affected by a
rentcharge is, without the
consent of the owner of the rentcharge, expressed to
be conveyed-
(i) subject to or charged with the entire rent-
then paragraph (B) (i) or (D) (i) of the last
subsection, as the case may require, shall have effect as if the entire rent
were the
apportioned rent, or
(ii) discharged or exonerated from the entire rent-
then paragraph (B) (ii) or (D) (ii) of
the last subsection, as the case may require, shall have effect as if the entire
rent were
the balance of the rent, and the words "other than the covenant to pay
the entire rent" had been omitted.
(3) In this section "conveyance" does
not include a demise by way of lease at a rent.
(4) Any covenant which
would be implied under this section by reason of a person conveying or being
expressed to convey as beneficial
owner may, by express reference to this
section, be implied, with or without variation, in a conveyance, whether or not
for valuable
consideration, by a person who conveys or is expressed to convey 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.
(5) 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 of being enforced by
every person in whom that estate or interest is, for the whole
or any part
thereof, from time to time vested.
(6) A covenant implied as aforesaid
may be varied or extended by deed, 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.
(7) In particular any covenant implied under this
section may be extended by providing that-
(a) the land conveyed; or
(b) the part of the land affected by the rentcharge which remains vested in the covenantor; or
(c) the part of the land demised which remains vested in the covenantor;
shall, as
the case may require, stand charged with the payment of all money which may
become payable under the implied covenant.
(8) This section applies only
to conveyances made after the commencement of this
Act.
78. Benefit of covenants relating
to land.- (1) A covenant relating to any land of the covenantee shall be
deemed to be made with the covenantee and his successors in title and
the
persons deriving title under him or them, and shall have effect as if such
successors and other persons were expressed.
For the purposes of this
subsection in connexion with covenants restrictive of the user of land
"successors in title" shall be deemed
to include the owners and occupiers for
the time being of the land of the covenantee intended to be
benefited.
(2) This section applies to covenants made after the
commencement of this Act, but the repeal of section fifty-eight of the
Conveyancing
Act, 1881, does not affect the operation of covenants to which that
section applied.
79. Burden of
covenants relating to land.- (1) A covenant relating to any land of a
covenantor or capable of being bound by him, shall, unless a contrary intention
is expressed,
be deemed to be made by the covenantor on behalf of himself his
successors in title and the persons deriving title under him or them,
and,
subject as aforesaid, shall have effect as if such successors and other persons
were expressed.
This subsection extends to a covenant to do some act
relating to the land, notwithstanding that the subject-matter may not be in
existence
when the covenant is made.
(2) For the purposes of this section
in connexion with covenants restrictive of the user of land "successors in
title" shall be deemed
to include the owners and occupiers for the time being of
such land.
(3) This section applies only to covenants made after the
commencement of this Act.
80. Covenants
binding land.- (1) A covenant and a bond and an obligation or contract
under seal made after the thirty-first day of December, eighteen hundred and
eighty-one, binds the real estate as well as the personal estate of the person
making the same if and so far as a contrary intention
is not expressed in the
covenant, bond, obligation, or contract.
This subsection extends to a
covenant implied by virtue of this Act.
(2) Every covenant running with
the land, whether entered into before or after the commencement of this Act,
shall take effect in
accordance with any statutory enactment affecting the
devolution of the land, and accordingly the benefit or burden of every such
covenant shall vest in or bind the persons who by virtue of any such enactment
or otherwise succeed to the title of the covenantee
or the covenantor, as the
case may be.
(3) The benefit of a covenant relating to land entered into
after the commencement of this Act may be made to run with the land without
the
use of any technical expression if the covenant is of such a nature that the
benefit could have been made to run with the land
before the commencement of
this Act.
(4) For the purposes of this section, a covenant runs with the
land when the benefit or burden of it, whether at law or in equity,
passes to
the successors in title of the covenantee or the covenantor, as the case may
be.
81. Effect of covenant with two or
more jointly.- (1) A covenant, and a contract under seal, and a bond or
obligation under seal, made with two or more jointly, to pay money or to
make a
conveyance, or to do any other act, to them or for their benefit, shall be
deemed to include, and shall, by virtue of this
Act, imply, an obligation to do
the act to, or for the benefit of, the survivor or survivors of them, and to, or
for the benefit
of, any other person to whom the right to sue on the covenant,
contract, bond, or obligation devolves, and where made after the commencement
of
this Act shall be construed as being also made with each of them.
(2)
This section extends to a covenant implied by virtue of this Act.
(3)
This section applies only if and as far as a contrary intention is not expressed
in the covenant, contract, bond, or obligation,
and has effect subject to the
covenant, contract, bond, or obligation, and to the provisions therein
contained.
(4) Except as otherwise expressly provided, this section
applies to a covenant, contract, bond, or obligation made or implied after
the
thirty-first day of December, eighteen hundred and
eighty-one.
82. Covenants and
agreements entered into by a person with himself and another or others.-
(1) Any covenant, whether express or implied, or agreement entered into by a
person with himself and one or more other persons shall
be construed and be
capable of being enforced in like manner as if the covenant or agreement had
been entered into with the other
person or persons alone.
(2) This
section applies to covenants or agreements entered into before or after the
commencement of this Act, and to covenants implied
by statute in the case of a
person who conveys or is expressed to convey to himself and one or more other
persons, but without prejudice
to any order of the court made before such
commencement.
83. Construction of
implied covenants.- In the construction of a covenant or proviso, or
other provision, implied in a deed or assent by virtue of this Act, words
importing
the singular or plural number, or the masculine gender, shall be read
as also importing the plural or singular number, or as extending
to females, as
the case may require.
84. Power to
discharge or modify restrictive covenants affecting land.- (1) The
Authority hereinafter defined shall (without prejudice to any concurrent
jurisdiction of the court) have power from time
to time, on the application of
any person interested in any freehold land affected by any restriction arising
under covenant or otherwise
as to the user thereof or the building thereon, by
order wholly or partially to discharge or modify any such restriction (subject
or not to the payment by the applicant of compensation to any person suffering
loss in consequence of the order) on being satisfied-
(a) that by reason of changes in the character of the property or the neighbourhood or other circumstances of the case which the Authority may deem material, the restriction ought to be deemed obsolete, or that the continued existence thereof would impede the reasonable user of the land for public or private purposes without securing practical benefits to other persons, or, as the case may be, would unless modified so impede such user; or
(b) that the persons of full age and capacity for the time being or from time to time entitled to the benefit of the restriction, whether in respect of estates in fee simple or any lesser estates or interests in the property to which the benefit of the restriction is annexed, have agreed, either expressly or by implication, by their acts or omissions, to the same being discharged or modified; or
(c) that the proposed discharge or modification will not injure the persons entitled to the benefit of the restriction:
Provided that no compensation
shall be payable in respect of the discharge or modification of a restriction by
reason of any advantage
thereby accruing to the owner of the land affected by
the restriction unless the person entitled to the benefit of the restriction
also suffers loss in consequence of the discharge or modification, nor shall any
compensation be payable in excess of such loss;
but this provision shall not
affect any right to compensation where the person claiming the compensation
proves that by reason of
the imposition of the restriction, the amount of the
consideration paid for the acquisition of the land was reduced.
(2) The
court shall have power on the application of any person interested-
(a) To declare whether or not in any particular case any freehold land is affected by a restriction imposed by any instrument; or
(b) To declare what, upon the true construction of any instrument purporting to impose a restriction, is the nature and extent of the restriction thereby imposed and whether the same is enforceable and if so by whom.
(3) The
Authority shall, before making any order under this section, direct such
enquiries, if any, to be made of any local authority,
and such notices, if any,
whether by way of advertisement or otherwise, to be given to such of the persons
who appear to be entitled
to the benefit of the restriction intended to be
discharged, modified, or dealt with as, having regard to any enquiries notices
or
other proceedings previously made, given or taken, the Authority may think
fit.
(4) The Reference Committee mentioned in this section may make rules
in relation to any applications to be made to the Authority under
this section,
and with the consent of the Treasury may prescribe the fees to be paid in
connexion with any application to the Authority.
(5) Any order made under
this section shall be binding on all persons, whether ascertained or of full age
or capacity or not, then
entitled or thereafter capable of becoming entitled to
the benefit of any restriction, which is thereby discharged, modified, or
dealt
with, and whether such persons are parties to the proceedings or have been
served with notice or not, but any order made by
the Authority shall, in
accordance with rules of court, be subject to appeal to the court.
(6) An
order may be made under this section notwithstanding that any instrument which
is alleged to impose the restriction intended
to be discharged, modified, or
dealt with, may not have been produced to the court or the Authority, and the
court or Authority may
act on such evidence of that instrument as it may think
sufficient.
(7) This section applies to restrictions whether subsisting
at the commencement of this Act or imposed thereafter, but this section
does not
apply where the restriction was imposed on the occasion of a disposition made
gratuitously or for a nominal consideration
for public purposes.
(8) This
section applies whether the land affected by the restrictions is registered or
not, but, in the case of registered land,
the Land Registrar shall give effect
on the register to any order under this section when made.
(9) Where any
proceedings by action or otherwise are taken to enforce a restrictive covenant,
any person against whom the proceedings
are taken, may in such proceedings apply
to the court for an order giving leave to apply to Authority under this section,
and staying
the proceedings in the meantime.
(10) In this section "the
Authority" means such one or more of the Official Arbitrators appointed for the
purposes of the Acquisition
of Land (Assessment of Compensation) Act, 1919, as
may be selected by the Reference Committee under that Act.
(11) This
section does not apply to restrictions imposed by the Commissioners of Works
under any statutory power for the protection
of any Royal Park or Garden or to
restrictions of a like character imposed upon the occasion of any
enfranchisement effected before
the commencement of this Act in any manor vested
in His Majesty in right of the Crown or the Duchy on Lancaster, nor to
restrictions
created or imposed-
(a) for Naval, Military or Air Force purposes,
(b) for civil aviation purposes under the powers of the Air Navigation Act, 1920.
(12) Where a term of more than seventy
years is created in land (whether before or after the commencement of this Act)
this section
shall, after the expiration of fifty years of the term, apply to
restrictions affecting such leasehold land in like manner as it
would have
applied had the land been freehold:
Provided that this subsection shall
not apply to mining leases.
_________
PART III.
MORTGAGES, RENTCHARGES, AND POWERS OF ATTORNEY.
Mortgages.
85. Mode of mortgaging
freeholds.- (1) A mortgage of an estate in fee simple shall only be
capable of being effected at law either by a demise for a term of years
absolute, subject to a provision for cesser on redemption, or by a charge by
deed expressed to be by way of legal mortgage:
Provided that a first
mortgagee shall have the same right to the possession of documents as if his
security included the fee simple.
(2) Any purported conveyance of an
estate in fee simple by way of mortgage made after the commencement of this Act
shall (to the extent
of the estate of the mortgagor) operate as a demise of the
land to the mortgagee for a term of years absolute, without impeachment
for
waste, but subject to cesser on redemption, in manner following, namely:
(a) A first or only mortgagee shall take a term of three thousand years from the date of the mortgage;
(b) A second or subsequent mortgagee shall take a term (commencing from the date of the mortgage) one day longer than the term vested in the first or other mortgagee whose security ranks immediately before that of such second or subsequent mortgagee:
and, in this subsection, any such purported
conveyance as aforesaid includes an absolute conveyance with a deed of
defeasance and
any other assurance which, but for this subsection, would operate
in effect to vest the fee simple in a mortgagee subject to
redemption.
(3) This section applies whether or not the land is
registered under the Land Registration Act, 1925, or the mortgage is expressed
to be made by way of trust for sale or otherwise.
(4) Without prejudice
to the provisions of this Act respecting legal and equitable powers, every power
to mortgage or to lend money
on mortgage of an estate in fee simple shall be
construed as a power to mortgage the estate for a term of years absolute,
without
impeachment far waste, or by a charge by way of legal mortgage or to
lend on such security.
86. Mode of
mortgaging leaseholds.- (1) A mortgage of a term of years absolute shall
only be capable of being effected at law either by a subdemise for a term of
years
absolute, less by one day at least than the term vested in the mortgagor,
and subject to a provision for cesser on redemption, or
by a charge by deed
expressed to be by way of legal mortgage; and where a licence to subdemise by
way of mortgage is required, such
licence shall not be unreasonably
refused:
Provided that a first mortgagee shall have the same right to the
possession of documents as if his security had been effected by
assignment.
(2) Any purported assignment of a term of years absolute by
way of mortgage made after the commencement of this Act shall (to the
extent of
the estate of the mortgagor) operate as a subdemise of the leasehold land to the
mortgagee for a term of years absolute,
but subject to cesser on redemption, in
manner following, namely:-
(a) The term to be taken by a first or only mortgagee shall be ten days less than the term expressed to be assigned:
(b) The term to be taken by a second or subsequent mortgagee shall be one day longer than the term vested in the first or other mortgagee whose security ranks immediately before that of the second or subsequent mortgagee, if the length of the last mentioned term permits, and in any case, for a term less by one day at least than the term expressed to be assigned;
and, in this
subsection, any such purported assignment as aforesaid includes an absolute
assignment with a deed of defeasance and
any other assurance which, but for this
subsection, would operate in effect to vest the term of the mortgagor in a
mortgagee subject
to redemption.
(3) This section applies whether or not
the land is registered under the Land Registration Act, 1925, or the mortgage is
made by way
of sub-mortgage of a term of years absolute, or is expressed to be
by way of trust for sale or otherwise.
(4) Without prejudice to the
provisions of this Act respecting legal and equitable powers, every power to
mortgage for or to lend
money on mortgage of a term of years absolute by way of
assignment shall be construed as a power to mortgage the term by subdemise
for a
term of years absolute or by a charge by way of legal mortgage, or to lend on
such security.
87. Charges by way of
legal mortgage.- (1) Where a legal mortgage of land is created by a
charge by deed expressed to be by way of legal mortgage, the mortgagee shall
have the same protection, powers and remedies (including the right to take
proceedings to obtain possession from the occupiers and
the persons in receipt
of rents and profits, or any of them) as if -
(a) where the mortgage is a mortgage of an estate in fee simple, a mortgage term for three thousand years without impeachment of waste had been thereby created in favour of the mortgagee; and
(b) where the mortgage is a mortgage of a term of years absolute, a sub-term less by one day than the term vested in the mortgagor had been thereby created in favour of the mortgagee.
(2) Where an estate vested in a
mortgagee immediately before the commencement of this Act has by virtue of this
Act been converted
into a term of years absolute or sub-term, the mortgagee may,
by a declaration in writing to that effect signed by him, convert the
mortgage
into a charge by way of legal mortgage, and in that case the mortgage term shall
be extinguished in the inheritance or in
the head term as the case may be, and
the mortgagee shall have the same protection, powers and remedies (including the
right to take
proceedings to obtain possession from the occupiers and the
persons in receipt of rents and profits or any of them) as if the mortgage
term
or sub-term had remained subsisting.
The power conferred by this
subsection may be exercised by a mortgagee notwithstanding that he is a trustee
or personal representative.
(3) Such declaration shall not affect the
priority of the mortgagee or his right to retain possession of documents, nor
affect his
title to or right over any fixtures or chattels personal comprised in
the mortgage.
88. Realisation of
freehold mortgages.- (1) Where an estate in fee simple has been mortgaged
by the creation of a term of years absolute limited thereout or by a charge
by
way of legal mortgage and the mortgagee sells under his statutory or express
power of sale-
(a) the conveyance by him shall operate to vest in the purchaser the fee simple in the land conveyed subject to any legal mortgage having priority to the mortgage in right of which the sale is made and to any money thereby secured, and thereupon;
(b) the mortgage term or the charge by way of legal mortgage and any subsequent mortgage term or charges shall merge or be extinguished as respects the land conveyed;
and such conveyance may, as respects
the fee simple, be made in the name of the estate owner in whom it is
vested.
(2) Where any such mortgagee obtains an order for foreclosure
absolute, the order shall operate to vest the fee simple in him (subject
to any
legal mortgage having priority to the mortgage in right of which the foreclosure
is obtained and to any money thereby secured),
and thereupon the mortgage term,
if any, shall thereby be merged in the fee simple, and any subsequent mortgage
term or charge by
way of legal mortgage bound by the order shall thereupon be
extinguished.
(3) Where any such mortgagee acquires a title under the
Limitation Acts, he, or the persons deriving title under him, may enlarge
the
mortgage term into a fee simple under the statutory power for that purpose
discharged from any legal mortgage affected by the
title so acquired, or in the
case of a chargee by way of legal mortgage may by deed declare that the fee
simple is vested in him
discharged as aforesaid, and the same shall vest
accordingly.
(4) Where the mortgage includes fixtures or chattels
personal any statutory power of sale and any right to foreclose or take
possession
shall extend to the absolute or other interest therein affected by
the charge.
(5) In the case of a sub-mortgage by subdemise of a long term
(less a nominal period) itself limited out of an estate in fee simple,
the
foregoing provisions of this section shall operate as if the derivative term, if
any, created by the sub-mortgage had been limited
out of the fee simple, and so
as to enlarge the principal term and extinguish the derivative term created by
the sub-mortgage as
aforesaid, and to enable the sub-mortgagee to convey the fee
simple or acquire it by foreclosure, enlargement, or otherwise as
aforesaid.
(6) This section applies to a mortgage whether created before
or after the commencement of this Act, and to a mortgage term created
by this
Act, but does not operate to confer a better title to the fee simple than would
have been acquired if the same had been conveyed
by the mortgage (being a valid
mortgage) and the restrictions imposed by this Act in regard to the effect and
creation of mortgages
were not in force, and all prior mortgages (if any) not
being merely equitable charges had been created by demise or by charge by
way of
legal mortgage.
89. Realisation of
leasehold mortgages.- (1) Where a term of years absolute has been
mortgaged by the creation of another term of years absolute limited thereout or
by a
charge by way of legal mortgage and the mortgagee sells under his statutory
or express power of sale,-
(a) the conveyance by him shall operate to convey to the purchaser not only the mortgage term, if any, but also (unless expressly excepted with the leave of the court) the leasehold reversion affected by the mortgage, subject to any legal mortgage having priority, to the mortgage in right of which the sale is made and to any money thereby secured, and thereupon;
(b) the mortgage term, or the charge by way of legal mortgage and any subsequent mortgage term or charge, shall merge in such leasehold reversion or be extinguished unless excepted as aforesaid;
and such conveyance may, as
respects the leasehold reversion, be made in the name of the estate owner in
whom it is vested.
Where a licence to assign is required on a sale by a
mortgagee, such licence shall not be unreasonably refused.
(2) Where any
such mortgagee obtains an order for foreclosure absolute, the order shall,
unless it otherwise provides, operate (without
giving rise to a forfeiture for
want of a licence to assign) to vest the leasehold reversion affected by the
mortgage and any subsequent
mortgage term in him, subject to any legal mortgage
having priority to the mortgage in right of which the foreclosure is obtained
and to any money thereby secured, and thereupon the mortgage term and any
subsequent mortgage term or charge by way of legal mortgage
bound by the order
shall, subject to any express provision to the contrary contained in the order,
merge in such leasehold reversion
or be extinguished.
(3) Where any such
mortgagee acquires a title under the Limitation Acts, he, or the persons
deriving title under him, may by deed
declare that the leasehold reversion
affected by the mortgage and any mortgage term affected by the title so acquired
shall vest
in him, free from any right of redemption which is barred, and the
same shall (without giving rise to a forfeiture for want of a
licence to assign)
vest accordingly, and thereupon the mortgage term, if any, and any other
mortgage term or charge by way of legal
mortgage affected by the title so
acquired shall, subject to any express provision to the contrary contained in
the deed, merge in
such leasehold reversion or be extinguished.
(4) Where
the mortgage includes fixtures or chattels personal, any statutory power of sale
and any right to foreclose or take possession
shall extend to the absolute or
other interest therein affected by the charge.
(5) In the case of a
sub-mortgage by subdemise of a term (less a nominal period) itself limited out
of a leasehold reversion, the
foregoing provisions of this section shall operate
as if the derivative term created by the sub-mortgage had been limited out of
the leasehold reversion, and so as (subject as aforesaid) to merge the principal
mortgage term therein as well as the derivative
term created by the sub-mortgage
and to enable the sub-mortgagee to convey the leasehold reversion or acquire it
by foreclosure,
vesting, or otherwise as aforesaid.
(6) This section
takes effect without prejudice to any encumbrance or trust affecting the
leasehold reversion which has priority over
the mortgage in right of which the
sale, foreclosure, or title is made or acquired, and applies to a mortgage
whether executed before
or after the commencement of this Act, and to a mortgage
term created by this Act, but does not apply where the mortgage term does
not
comprise the whole of the land included in the leasehold reversion unless the
rent (if any) payable in respect of that reversion
has been apportioned as
respects the land affected, or the rent is of no money value or no rent is
reserved, and unless the lessee's
covenants and conditions (if any) have been
apportioned, either expressly or by implication, as respects the land
affected.
90. Realisation of equitable
charges by the court.- (1) Where an order for sale is made by the court
in reference to an equitable mortgage on land (not secured by a legal term of
years
absolute or by a charge by way of legal mortgage) the court may, in favour
of a purchaser, make a vesting order conveying the land
or may appoint a person
to convey the land or create and vest in the mortgagee a legal term of years
absolute to enable him to carry
out the sale; as the case may require, in like
manner as if the mortgage had been created by deed by way of legal mortgage
pursuant
to this Act, but without prejudice to any encumbrance having priority
to the equitable mortgage unless the incumbrancer consents
to the
sale.
(2) This section applies to equitable mortgages made or arising
before or after the commencement of this Act, but not to a mortgage
which has
been overreached under the powers conferred by this Act or
otherwise.
91. Sale of mortgaged
property in action for redemption or foreclosure.- (1) Any person
entitled to redeem mortgaged property may have a judgment or order for sale
instead of for redemption in an action
brought by him either for redemption
alone, or for sale alone, or for sale or redemption in the
alternative.
(2) In any action, whether for foreclosure, or for
redemption, or for sale, or for the raising and payment in any manner of
mortgage
money, the court, on the request of the mortgagee, or of any person
interested either in the mortgage money or in the right of redemption,
and,
notwithstanding that-
(a) any other person dissents; or
(b) the mortgagee or any person so interested does not appear in the action; and without allowing any time for redemption or for payment of any mortgage money, may direct a sale of the mortgaged property, on such terms as it thinks fit, including the deposit in court of a reasonable sum fixed by the court to meet the expenses of sale and to secure performance of the terms.
(3) But, in
an action brought by a person interested in the right of redemption and seeking
a sale, the court may, on the application
of any defendant, direct the plaintiff
to give such security for costs as the court thinks fit, and may give the
conduct of the sale
to any defendant, and may give such directions as it thinks
fit respecting the costs of the defendants or any of them.
(4) In any
case within this section the court may, if it thinks fit, direct a sale without
previously determining the priorities of
incumbrancers.
(5) This section
applies to actions brought either before or after the commencement of this
Act.
(6) In this section "mortgaged property" includes the estate or
interest which a mortgagee would have had power to convey if the statutory
power
of sale were applicable.
(7) For the purposes of this section the court
may, in favour of a purchaser, make a vesting order conveying the mortgaged
property,
or appoint a person to do so, subject or not to any encumbrance, as
the court may think fit; or, in the case of an equitable mortgage,
may create
and vest a mortgage term in the mortgagee to enable him to carry out the sale as
if the mortgage had been made by deed
by way of legal
mortgage.
92. Power to authorise land
and minerals to be dealt with separately.- (1) Where a mortgagee's power
of sale in regard to land has become exercisable but does not extend to the
purposes mentioned in
this section, the court may, on his application, authorise
him and the persons deriving title under him to dispose-
(a) of the land, with an exception or reservation of all or any mines and minerals, and with or without rights and powers of or incidental to the working, getting or carrying away of minerals; or
(b) of all or any mines and minerals, with or without the said rights or powers separately from the land;
and thenceforth the powers so conferred
shall have effect as if the same were contained in the
mortgage.
93. Restriction on
consolidation of mortgages.- (1) A mortgagor seeking to redeem any one
mortgage is entitled to do so without paying any money due under any separate
mortgage
made by him, or by any person through whom he claims, solely on
property other than that comprised in the mortgage which he seeks
to
redeem.
This subsection applies only if and as far as a contrary
intention is not expressed in the mortgage deeds or one of them.
(2) This
section does not apply where all the mortgages were made before the first day of
January, eighteen hundred and eight-two.
(3) Save as aforesaid, nothing
in this Act, in reference to mortgages, affects any right of consolidation or
renders inoperative a
stipulation in relation to any mortgage made before or
after the commencement of this Act reserving a right to
consolidate.
94. Tacking and further
advances.- (1) After the commencement of this Act, a prior mortgagee
shall have a right to make further advances to rank in priority to subsequent
mortgages (whether legal or equitable)-
(a) if an arrangement has been made to that effect with the subsequent mortgagees; or
(b) if he had no notice of such subsequent mortgages at the time when the further advance was made by him; or
(c) whether or not he had such notice as aforesaid, where the mortgage imposes an obligation on him to make such further advances.
This subsection applies
whether or not the prior mortgage was made expressly for securing further
advances.
(2) In relation to the making of further advances after the
commencement of this Act a mortgagee shall not be deemed to have notice
of a
mortgage merely by reason that it was registered as a land charge or in a local
deeds registry, if it was not so registered
at the [time when the original
mortgage was created] or when the last search (if any) by or on behalf of the
mortgagee was made,
whichever last happened.
This subsection only applies
where the prior mortgage was made expressly for securing a current account or
other further advances.
(3) Save in regard to the making of further
advances as aforesaid, the right to tack is hereby abolished:
Provided
that nothing in this Act shall affect any priority acquired before the
commencement of this Act by tacking, or in respect
of further advances made
without notice of a subsequent encumbrance or by arrangement with the subsequent
incumbrancer.
(4) This section applies to mortgages of land made before
or after the commencement of this Act, but not to charges registered under
the
Land Registration Act, 1925, or any enactment replaced by that
Act.
95. Obligation to transfer instead
of reconveying, and as to right to take possession.- (1) Where a
mortgagor in entitled to redeem, then subject to compliance with the terms on
compliance with which he would be entitled
to require a reconveyance or
surrender, he shall be entitled to require the mortgagee, instead of reconveying
or surrendering, to
assign the mortgage debt and convey the mortgaged property
to any third person, as the mortgagor directs; and the mortgagee shall
be bound
to assign and convey accordingly.
(2) The rights conferred by this
section belong to and are capable of being enforced by each incumbrancer, or by
the mortgagor, notwithstanding
any intermediate encumbrance; but a requisition
of an incumbrancer prevails over a requisition of the mortgagor, and, as between
incumbrancers, a requisition of a prior incumbrancer prevails over a requisition
of a subsequent incumbrancer.
(3) The foregoing provisions of this
section do not apply in the case of a mortgagee being or having been in
possession.
(4) Nothing in this Act affects prejudicially the right of a
mortgagee of land whether or not his charge is secured by a legal term
of years
absolute to take possession of the land, but the taking of possession by the
mortgagee does not convert any legal estate
of the mortgagor into an equitable
interest.
(5) This section applies to mortgages made either before or
after the commencement of this Act, and takes effect notwithstanding any
stipulation to the contrary.
96.
Regulations respecting inspection, production and delivery of documents, and
priorities.- (1) A mortgagor, as long as his right to redeem subsists,
shall be entitled from time to time, at reasonable times, on his request,
and at
his own cost, and on payment of the mortgagee's costs and expenses in this
behalf, to inspect and make copies or abstracts
of or extracts from the
documents of title relating to the mortgaged property in the custody or power of
the mortgagee.
This subsection applies to mortgages made after the
thirty-first day of December, eighteen hundred and eighty-one, and takes effect
notwithstanding any stipulation to the contrary.
(2) A mortgagee, whose
mortgage is surrendered or otherwise extinguished, shall not be liable on
account of delivering documents of
title in his possession to the person not
having the best right thereto, unless he has notice of the right or claim of a
person having
a better right, whether by virtue of a right to require a
surrender or reconveyance or otherwise.
[In this subsection notice does
not include notice implied by reason of registration under the Land Charges Act,
1925, or in a local
deeds
register.]
97. Priorities as between
puisne mortgages.- Every mortgage affecting a legal estate in land made
after the commencement of this Act, whether legal or equitable (not being a
mortgage protected by the deposit of documents relating to the legal estate
affected) shall rank according to its date of registration
as a land charge
pursuant to the Land Charges Act, 1925.
This section does not apply to
mortgages or charges of registered land or of land within the jurisdiction of a
local deeds registry.
98. Actions for
possession by mortgagors.- (1) A mortgagor for the time being entitled to
the possession or receipt of the rents and profits of any land, as to which the
mortgagee
has not given notice of his intention to take possession or to enter
into the receipt of the rents and profits thereof, may sue for
such possession,
or for the recovery of such rents or profits, or to prevent or recover damages
in respect of any trespass or other
wrong relative thereto, in his own name
only, unless the cause of action arises upon a lease or other contract made by
him jointly
with any other person.
(2) This section does not prejudice
the power of a mortgagor independently of this section to take proceedings in
his own name only,
either in right of any legal estate vested in him or
otherwise.
(3) This section applies whether the mortgage was made before
or after the commencement of this
Act.
99. Leasing powers of mortgagor
and mortgagee in possession.- (1) A mortgagor of land while in possession
shall, as against every incumbrancer, have power to make from time to time any
such lease
of the mortgaged land, or any part thereof, as is by this section
authorised.
(2) A mortgagee of land while in possession shall, as against
all prior, incumbrancers, if any,
and as against the mortgagor, have power to make from time to time any such
lease as aforesaid.
(3) The leases which this section authorises
are-
(i) agricultural or occupation leases for any term not exceeding twenty-one years, or, in the case of a mortgage made after the commencement of this Act, fifty years; and
(ii) building leases for any term not exceeding ninety-nine years, or, in the case of a mortgage made after the commencement of this Act, nine hundred and ninety-nine years.
(4) Every person making a
lease under this section may execute and do all assurances and things necessary
or proper in that behalf.
(5) Every such lease shall be made to take
effect in possession not later than twelve months after its date.
(6)
Every such lease shall reserve the best rent that can reasonably be obtained,
regard being had to the circumstances of the case,
but without any fine being
taken.
(7) Every such lease shall contain a covenant by the lessee for
payment of the rent, and condition of re-entry on the rent not being
paid within
a time therein specified not exceeding thirty days.
(8) A counterpart of
every such lease shall be executed by the lessee and delivered to the lessor, of
which execution and delivery
the execution of the lease by the lessor shall, in
favour of the lessee and all persons deriving title under him be sufficient
evidence.
(9) Every such building lease shall be made in consideration of
the lessee, or some person by whose direction the lease is granted,
having
erected, or agreeing to erect within not more than five years from the date of
the lease, buildings, new or additional, or
having improved or repaired
buildings, or agreeing to improve or repair buildings within that time, or
having executed, or agreeing
to execute within that time, on the land leased, an
improvement for or in connexion with building purposes.
(10) In any such
building lease a peppercorn rent, or a nominal or other rent less than the rent
ultimately payable, may be made payable
for the first five years, or any less
part of the term.
(11) In case of a lease by the mortgagor, he shall,
within one month after making the lease, deliver to the mortgagee, or, where
there
are more than one, to the mortgagee first in priority, a counterpart of
the lease duly executed by the lessee, but the lessee shall
not be concerned to
see that this provision is complied with.
(12) A contract to make or
accept a lease under this section may be enforced by or against every person on
whom the lease if granted
would be binding.
(13) This section applies
only if and as far as a contrary intention is not expressed by the mortgagor and
mortgagee in the mortgage
deed, or otherwise in writing, and has effect subject
to the terms of the mortgage deed or of any such writing and to the provisions
therein contained.
(14) The mortgagor and mortgagee may, by agreement in
writing, whether or not contained in the mortgage deed, reserve to or confer
on
the mortgagor or the mortgagee, or both, any further or other powers of leasing
or having reference to leasing; and any further
or other powers so reserved or
conferred shall be exercisable, as far as may be, as if they were conferred by
this Act, and with
all the like incidents, effects, and
consequences:
Provided that the powers so reserved or conferred shall not
prejudicially affect the rights of any mortgagee interested under any
other
mortgage subsisting at the date of the agreement, unless that mortgagee joins in
or adopts the agreement.
(15) Nothing in this Act shall be construed to
enable a mortgagor or mortgagee to make a lease for any longer term or on any
other
conditions than such as could have been granted or imposed by the
mortgagor, with the concurrence of all the incumbrancers, if this
Act and the
enactments replaced by this section had not been passed:
Provided that,
in the case of a mortgage of leasehold land, a lease granted under this section
shall reserve a reversion of not less
than one day.
(16) Subject as
aforesaid, this section applies to any mortgage made after the thirty-first day
of December, eighteen hundred and
eighty-one, but the provisions thereof, or any
of them, may, by agreement in writing made after that date between mortgagor and
mortgagee,
be applied to a mortgage made before that date, so nevertheless that
any such agreement shall not prejudicially affect any right
or interest of any
mortgagee not joining in or adopting the agreement.
(17) The provisions
of this section referring to a lease shall be construed to extend and apply, as
far as circumstances admit, to
any letting, and to an agreement, whether in
writing or not, for leasing or letting.
(18) For the purposes of this
section "mortgagor" does not include an incumbrancer deriving title under the
original mortgagor.
(19) The powers of leasing conferred by this section
shall, after a receiver of the income of the mortgaged property or any part
thereof
has been appointed by a mortgagee under his statutory power, and so long
as the receiver acts, be exercisable by such mortgagee instead
of by the
mortgagor, as respects any land affected by the receivership, in like manner as
if such mortgagee were in possession of
the land, and the mortgagee may, by
writing, delegate any of such powers to the
receiver.
100. Powers of mortgagor and
mortgagee in possession to accept surrenders of leases.-(1) For the
purpose only of enabling a lease authorised under the last preceding section, or
under any agreement made pursuant to
that section, or by the mortgage deed (in
this section referred to as an authorised lease) to be granted, a mortgagor of
land while
in possession shall, as against every incumbrancer, have, by virtue
of this Act, power to accept from time to time a surrender of
any lease of the
mortgaged land or any part thereof comprised in the lease, with or without an
exception of or in respect of all
or any of the mines and minerals therein, and,
on a surrender of the lease so far as it comprises part only of the land or
mines
and minerals leased, the rent may be apportioned.
(2) For the same
purpose, a mortgagee of land, while in possession shall, as against all prior or
other incumbrancers, if any, and
as against the mortgagor, have, by virtue of
this Act, power to accept from time to time any such surrender as
aforesaid.
(3) On a surrender of part only of the land or mines and
minerals leased, the original lease may be varied, provided that the lease
when
varied would have been valid as an authorised lease if granted by the person
accepting the surrender; and, on a surrender and
the making of a new or other
lease, whether for the same or for any extended or other term, and whether
subject or not to the same
or to any other covenants, provisions, or conditions,
the value of the lessee's interest in the lease surrendered may, subject to
the
provisions of this section, be taken into account in the determination of the
amount of the rent to be reserved, and of the nature
of the covenants,
provisions, and conditions to be inserted in the new or other lease.
(4)
Where any consideration for the surrender, other than an agreement to accept an
authorised lease, is given by or on behalf of
the lessee to or on behalf of the
person accepting the surrender, nothing in this section authorises a surrender
to a mortgagor without
the consent of the incumbrancers, or authorises a
surrender to a second or subsequent incumbrancer without the consent of every
prior
incumbrancer.
(5) No surrender shall, by virtue of this section, be
rendered, valid unless:-
(a) An authorised lease is granted of the whole of the land or mines and minerals comprised in the surrender to take effect in possession immediately or within one month after the date of the surrender; and
(b) The term certain or other interest granted by the new lease is not less in duration than the unexpired term or interest which would have been subsisting under the original lease if that lease had not been surrendered; and
(c) Where the whole of the land mines and minerals originally leased has been surrendered, the rent reserved by the new lease is not less than the rent which would have been payable under the original lease if it had not been surrendered; or where part only of the land or mines and minerals has been surrendered, the aggregate rents respectively remaining payable or reserved under the original lease and new lease are not less than the rent which would have been payable under the original lease if no partial surrender had been accepted.
(6) A
contract to make or accept a surrender under this section may be enforced by or
against every person on whom the surrender,
if completed, would be
binding.
(7) This section applies only if and as far as a contrary
intention is not expressed by the mortgagor and mortgagee in the mortgage
deed,
or otherwise in writing, and shall have effect subject to the terms of the
mortgage deed or of any such writing and to the
provisions therein
contained.
(8) This section applies to a mortgage made after the
thirty-first day of December, nineteen hundred and eleven, but the provisions
of
this section, or any of them, may, by agreement in writing made after that date,
between mortgagor and mortgagee, be applied to
a mortgage made before that date,
so nevertheless that any such agreement shall not prejudicially affect any right
or interest of
any mortgagee not joining in or adopting the
agreement;
(9) The provisions of this section referring to a lease shall
be construed to extend and apply, as far as circumstances admit, to
any letting,
and to an agreement, whether in writing or not, for leasing or
letting.
(10) The mortgagor and mortgagee may, by agreement in writing,
whether or not contained in the mortgage deed, reserve or confer on
the
mortgagor or mortgagee, or both, any further or other powers relating to the
surrender of leases; and any further or other powers
so conferred or reserved
shall be exercisable, as far as may be, as if they were conferred by this Act,
and with all the like incidents,
effects and consequences:
Provided that
the powers so reserved or conferred shall not prejudicially affect the rights of
any mortgagee interested under any
other mortgage subsisting at the date of the
agreement, unless that mortgagee joins in or adopts the agreement.
(11)
Nothing in this section operates to enable a mortgagor or mortgagee to accept a
surrender which could not have been accepted
by the mortgagor with the
concurrence of all the incumbrancers if this Act and the enactments replaced by
this section had not been
passed.
(12) For the purposes of this section
"mortgagor" does not include an incumbrancer deriving title under the original
mortgagor.
(13) The powers of accepting surrenders conferred by this
section shall, after a receiver of the income of the mortgaged property
or any
part thereof has been appointed by the mortgagee, under the statutory power, and
so long as the receiver acts, be exercisable
by such mortgagee instead of by the
mortgagor, as respects any land affected by the receivership, in like manner as
if such mortgagee
were in possession of the land; and the mortgagee may, by
writing, delegate any of such powers to the
receiver.
101. Powers incident to
estate or interest of mortgagee.- (1) A mortgagee, where the mortgage is
made by deed, shall, by virtue of this Act, have the following powers, to the
like extent as
if they had been in terms conferred by the mortgage deed, but not
further (namely):-
(i) A power, when the mortgage money has become due, to sell, or to concur with any other person in selling, the mortgaged property, or any part thereof, either subject to prior charges or not, and either together or in lots, by public auction or by private contract, subject to such conditions respecting title, or evidence of title, or other matter, as the mortgagee thinks fit, with power to vary any contract for sale, and to buy in at an auction, or to rescind any contract for sale, and to re-sell, without being answerable for any loss occasioned thereby; and
(ii) A power, at any time after the date of the mortgage deed, to ensure and keep ensured against loss or damage by fire any building, or any effects or property of an insurable nature, whether affixed to the freehold or not, being or forming part of the property which or an estate or interest wherein is mortgaged, and the premiums paid for any such insurance shall be a charge on the mortgaged property or estate or interest, in addition to the mortgage money, and with the same priority, and with interest at the same rate, as the mortgage money; and
(iii) A power, when the mortgage money has become due, to appoint a receiver of the income of the mortgaged property, or any part thereof; or, if the mortgaged property consists of an interest in income, or of a rent charge or an annual or other periodical sum, a receiver of that property or any part thereof; and
(iv) A power, while the mortgagee is in possession, to cut and sell timber and other trees ripe for cutting, and not planted or left standing for shelter or ornament, or to contract for any such cutting and sale, to be completed within any time not exceeding twelve months from the making of the contract.
(2) Where the mortgage deed is
executed after the thirty-first day of December, nineteen hundred and eleven,
the power of sale aforesaid
includes the following powers as incident thereto
(namely):-
(i) A power to impose or reserve or make binding, as far as the law permits, by covenant, condition, or otherwise, on the unsold part of the mortgaged property or any part thereof, or on the purchaser and any property sold, any restriction or reservation with respect to building on or other user of land, or with respect to mines and minerals, or for the purpose of the more beneficial working thereof, or with respect to any other thing:
(ii) A power to sell the mortgaged property, or any part thereof, or all or any mines and minerals apart from the surface:-
(a) With or without a grant or reservation of rights of way, rights of water, easements, rights, and privileges for or connected with building or other purposes in relation to the property remaining in mortgage or any part thereof, or to any property sold: and
(b) With or without an exception or reservation of all or any of the mines and minerals in or under the mortgaged property, and with or without a grant or reservation of powers or working, wayleaves, or rights of way, rights of water and drainage and other powers, easements, rights, and privileges for or connected with mining purposes in relation to the property remaining unsold or any part thereof, or to any property sold: and
(c) With or without covenants by the purchaser to expend money on the land sold.
(3) The provisions of this
Act relating to the foregoing powers, comprised either in this section, or in
any other section regulating
the exercise of those powers, may be varied or
extended by the mortgage deed, 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
contained in this
Act.
(4) This section applies only if and as far as a contrary intention
is not expressed in the mortgage deed, and has effect subject
to the terms of
the mortgage deed and to the provisions therein contained.
(5) Save as
otherwise provided, this section applies where the mortgage deed is executed
after the thirty-first day of December, eighteen
hundred and
eighty-one.
(6) The power of sale conferred by this section includes such
power of selling the estate in fee simple or any leasehold reversion
as is
conferred by the provisions of this Act relating to the realisation of
mortgages.
102. Provision as to
mortgages of undivided shares in land.- (1) A person who was before the
commencement of this Act a mortgagee of an undivided share in land shall have
the same power to sell
his share in the proceeds of sale of the land and in the
rents and profits thereof until sale, as, independently of this Act, he
would
have had in regard to the share in the land; and shall also have a right to
require the trustees for sale in whom the land
is vested to account to him for
the income attributable to that share or to appoint a receiver to receive the
same from such trustees
corresponding to the right which, independently of this
Act, he would have had to take possession or to appoint a receiver of the
rents
and profits attributable to the same share.
(2) The powers conferred by
this section are exercisable by the persons deriving title under such
mortgagee.
103. Regulation of exercise
of power of sale.- A mortgagee shall not exercise the power of sale
conferred by this Act unless and until-
(i) Notice requiring payment of the mortgage money has been served on the mortgagor or one of two or more mortgagors, and default has been made in payment of the mortgage money, or of part thereof, for three months after such service; or
(ii) Some interest under the mortgage is in arrear and unpaid for two months after becoming due; or
(iii) There has been a breach of some provision contained in the mortgage deed or in this Act, or in an enactment replaced by this Act, and on the part of the mortgagor, or of some person concurring in making the mortgage, to be observed or performed, other than and besides a covenant for payment of the mortgage money or interest thereon.
104. Conveyance
on sale.- (1) A mortgagee exercising the power of sale conferred by this
Act shall have power, by deed, to convey the property sold, for such
estate and
interest therein as he is by this Act authorised to sell or convey or may be the
subject of the mortgage, freed from all
estates, interests, and rights to which
the mortgage has priority, but subject to all
estates, interests, and rights which have priority to the mortgage.
(2)
Where a conveyance is made in exercise of the power of sale conferred by this
Act, or any enactment replaced by this Act, the
title of the purchaser shall not
be impeachable on the ground-
(a) that no case had arisen to authorise the sale; or
(b) that due notice was not given; or
(c) where the mortgage is made after the commencement of this Act, that leave of the court, when so required, was not obtained; or
(d) whether the mortgage was made before or after such commencement, that the power was otherwise improperly or irregularly exercised;
and a purchaser is not, either before or on conveyance, concerned to see or inquire whether a case has arisen to authorise the sale, or due notice has been given, or the power is otherwise properly and regularly exercised; but any person damnified by an unauthorised, or improper, or irregular exercise of the power shall have his remedy in damages against the person exercising the power.
(3) A conveyance on sale by a
mortgagee, made after the commencement of this Act, shall be deemed to have been
made in exercise of
the power of sale conferred by this Act unless a contrary
intention appears.
105. Application of
proceeds of sale.- The money which is received by the mortgagee, arising
from the sale, after discharge of prior incumbrances to which the sale is not
made subject, if any, or after payment into court under this Act of a sum to
meet any prior incumbrance, shall be held by him in
trust to be applied by him,
first, in payment of all costs, charges, and expenses properly incurred by him
as incident to the sale
or any attempted sale, or otherwise; and secondly, in
discharge of the mortgage money, interest, and costs, and other money, if any,
due under the mortgage; and the residue of the money so received shall be paid
to the person entitled to the mortgaged property,
or authorised to give receipts
for the proceeds of the sale
thereof.
106. Provisions as to exercise
of power of sale.- (1) The power of sale conferred by this Act may be
exercised by any person for the time being entitled to receive and give a
discharge
for the mortgage money.
(2) The power of sale conferred by this
Act does not affect the right of foreclosure.
(3) The mortgagee shall not
be answerable for any involuntary loss happening in or about the exercise or
execution of the power of
sale conferred by this Act, or of any trust connected
therewith, or, where the mortgage is executed after the thirty-first day of
December, nineteen hundred and eleven, of any power or provision contained in
the mortgage deed.
At any time after the power of sale conferred by this
Act has become exercisable, the person entitled to exercise the power may demand
and recover from any person, other than a person having in the mortgaged
property an estate, interest, or right in priority to the
mortgage, all the
deeds and documents relating to the property, or to the title thereto, which a
purchaser under the power of sale
would be entitled to demand and recover from
him.
107. Mortgagee's receipts,
discharges, etc.- (1) The receipt in writing of a mortgagee shall be a
sufficient discharge for any money arising under the power of sale conferred
by
this Act, or for any money or securities comprised in his mortgage, or arising
thereunder; and a person paying; or transferring
the same to the mortgagee shall
not be concerned to inquire whether any money remains due under the
mortgage.
(2) Money received by a mortgagee under his mortgage or from
the proceeds of securities comprised in his mortgage shall be applied
in like
manner as in this Act directed respecting money received by him arising from a
sale under the power of sale conferred by
this Act, but with this variation,
that the costs, charges, and expenses payable shall include the costs, charges,
and expenses properly
incurred of recovering and receiving the money or
securities, and of conversion of securities into money, instead of those
incident
to sale.
108. Amount and
application of insurance money.- (1) The amount of an insurance effected
by a mortgagee against loss or damage by fire under the power in that behalf
conferred by
this Act shall not exceed the amount specified in the mortgage
deed, or, if no amount is therein specified, two third parts of the
amount that
would be required, in case of total destruction, to restore the property
insured.
(2) An insurance shall not, under the power conferred by this
Act, be effected by a mortgagee in any of the following cases (namely):-
(i) Where there is a declaration in the mortgage deed that no insurance is required;
(ii) Where an insurance is kept up by or on behalf of the mortgagor in accordance with the mortgage deed;
(iii) Where the mortgage deed contains no stipulation respecting insurance, and an insurance is kept up by or on behalf of the mortgagor with the consent of the mortgagee to the amount to which the mortgagee is by this Act authorised to insure.
(3) All money received on an insurance
of mortgaged property against loss or damage by fire or otherwise effected under
this Act,
or any enactment replaced by this Act, or on an insurance for the
maintenance of which the mortgagor is liable under the mortgage
deed, shall, if
the mortgagee so requires, be applied by the mortgagor in making good the loss
or damage in respect of which the
money is received.
(4) Without
prejudiced to any obligation to the contrary imposed by law, or by special
contract, a mortgagee may require that all
money received on an insurance of
mortgaged property against loss or damage by fire or otherwise effected under
this Act, or any
enactment replaced by this Act, or on an insurance for the
maintenance of which the mortgagor is liable under the mortgage deed,
be applied
in or towards the discharge of the mortgage
money.
109. Appointment, powers,
remuneration and duties of receiver.- (1) A mortgagee entitled to appoint
a receiver under the power in that behalf conferred by this Act shall not
appoint a receiver until
he has become entitled to exercise the power of sale
conferred by this Act, but may then, by writing under his hand, appoint such
person as he thinks fit to be receiver.
(2) A receiver appointed under
the powers conferred by this Act, or any enactment replaced by this Act, shall
be deemed to be the
agent of the mortgagor; and the mortgagor shall be solely
responsible for the receiver's acts or defaults unless the mortgage deed
otherwise provides.
(3) The receiver shall have power to demand and
recover all the income of which he is appointed receiver, by action, distress,
or
otherwise, in the name either of the mortgagor or of the mortgagee, to the
full extent of the estate or interest which the mortgagor
could dispose of, and
to give effectual receipts accordingly for the same, and to exercise any powers
which may have been delegated
to him by the mortgagee pursuant to this
Act.
(4) A person paying money to the receiver shall not be concerned to
inquire whether any case has happened to authorise the receiver
to
act.
(5) The receiver may be removed, and a new receiver may be
appointed, from time to time by the mortgagee by writing under his
hand.
(6) The receiver shall be entitled to retain out of any money
received by him, for his remuneration, and in satisfaction of all costs,
charges, and expenses incurred by him as receiver, a commission at such rate,
not exceeding five per centum on the gross amount of
all money received, as is
specified in his appointment, and if no rate is so specified, then at the rate
of five per centum on that
gross amount, or at such other rate as the court
thinks fit to allow, on application made by him for that purpose.
(7) The
receiver shall, if so directed in writing by the mortgagee, insure to the
extent, if any, to which the mortgagee might have
insured and keep insured
against loss or damage by fire, out of the money received by him, any building,
effects, or property comprised
in the mortgage, whether affixed to the freehold
or not, being of an insurable nature.
(8) Subject to the provisions of
this Act as to the application of insurance money, the receiver shall apply all
money received by
him as follows, namely:
(i) In discharge of all rents, taxes, rates, and outgoings whatever affecting the mortgaged property; and
(ii) In keeping down all annual sums or other payments, and the interest on all principal sums, having priority to the mortgage in right whereof he is receiver; and
(iii) In payment of his commission, and of the premiums on fire, life, or other insurances, if any, properly payable under the mortgage deed or under this Act, and the cost of executing necessary or proper repairs directed in writing by the mortgagee; and
(iv) In payment of the interest accruing due in respect of any principal money due under the mortgage; and
(v) In or towards discharge of the principal money if so directed in writing by the mortgagee;
and shall pay the residue, if any, of the money received by him to the person who, but for the possession of the receiver, would have been entitled to receive the income of which he is appointed receiver, or who is otherwise entitled to the mortgaged property.
110.
Effect of bankruptcy of the mortgagor on the power to sell or appoint a
receiver.-(1) Where the statutory or express power for a mortgagee either
to sell or to appoint a receiver is made exercisable by reason of
the mortgagor
committing an act of bankruptcy or being adjudged a bankrupt, such power shall
not be exercised only on account of
the act of bankruptcy or adjudication,
without the leave of the court.
(2) This section applies only where the
mortgage deed is executed after the commencement of this Act; and in this
section "act of
bankruptcy" has the same meaning as in the Bankruptcy Act,
1914.
111. Effect of advance on joint
account.-(1) Where -
(a) in a mortgage, or an obligation for payment of money, or a transfer of a mortgage or of such an obligation, the sum, or any part of the sum, advanced or owing is expressed to be advanced by or owing to more persons than one out of money, or as money, belonging to them on a joint account; or
(b) a mortgage, or such an obligation, or such a transfer is made to more persons than one, jointly;
the mortgage money, or other money or
money's worth, for the time being due to those persons on the mortgage or
obligation, shall,
as between them and the mortgagor or obligor, be deemed to be
and remain money or money's worth belonging to those persons on a joint
account;
and the receipt in writing of the survivors or last survivor of them, or of the
personal representative of the last survivor,
shall be a complete discharge for
all money or money's worth for the time being due, notwithstanding any notice to
the payer of a
severance of the joint account.
(2) This section applies
if and so far as a contrary intention is not expressed in the mortgage,
obligation, or transfer, and has
effect subject to the terms of the mortgage,
obligation, or transfer, and to the provisions therein contained.
(3)
This section applies to any mortgage, obligation, or transfer made after the
thirty-first day of December, eighteen hundred and
eighty-one.
112. Notice of trusts on
transfer of mortgage.-(1) Where, on the transfer of a mortgage, the stamp
duty, if payable according to the amount of the debt transferred, would exceed
the sum of ten shillings, a purchaser shall not, by reason only of the transfer
bearing a ten-shilling stamp, whether adjudicated
or not, be deemed to have or
to have had notice of any trust, or that the transfer was made for effectuating
the discharge of a trustee
or the appointment of a new trustee.
(2) This
section applies to transfers made before as well as after the commencement of
this Act.
113. Notice of trusts
affecting mortgage debts.-(1) A person dealing in good faith with a
mortgagee, or with the mortgagor if the mortgage has been discharged released or
postponed
as to the whole or any part of the mortgaged property, shall not be
concerned with any trust at any time affecting the mortgage money
or the income
thereof, whether or not he has notice of the trust, and may assume unless the
contrary is expressly stated in the instruments
relating to the
mortgage-
(a) that the mortgagees (if more than one) are or were entitled to the mortgage money an a joint account; and
(b) that the mortgagee has or had power to give valid receipts for the purchase money or mortgage money and the income thereof (including any arrears of interest) and to release or postpone the priority of the mortgage debt or any part thereof or to deal with the same or the mortgaged property or any part thereof;
without investigating the equitable title to the mortgage debt or the appointment or discharge of trustees in reference thereto.
(2) This section applies to mortgages
made before or after the commencement of this Act, but only as respects dealings
effected after
such commencement.
(3) This section does not affect the
liability of any person in whom the mortgage debt is vested for the purposes of
any trust to
give effect to that
trust.
114. Transfers of
mortgages.-(1) A deed executed by a mortgagee purporting to transfer his
mortgage or the benefit thereof shall, unless a contrary intention is
therein
expressed, and subject to any provisions therein contained, operate to transfer
to the transferee -
(a) the right to demand, sue for, recover, and give receipts for, the mortgage money or the unpaid part thereof, and the interest then due, if any, and thenceforth to become due thereon; and
(b) the benefit of all securities for the same, and the benefit of and the right to sue on all covenants with the mortgagee, and the right to exercise all powers of the mortgagee; and
(c) all the estate and interest in the mortgaged property then vested in the mortgagee subject to redemption or cesser, but as to such estate and interest subject to the right of redemption then subsisting.
(2) In this section "transferee" includes his
personal representatives and assigns.
(3) A transfer of mortgage may be
made in the form contained in the Third Schedule to this Act with such
variations and additions,
if any, as the circumstances may require.
(4)
This section applies, whether the mortgage transferred was made before or after
the commencement of this Act, but applies only
to transfers made after the
commencement of this Act.
(5) This section does not extend to a transfer
of a bill of sale of chattels by way of
security.
115. Reconveyances of
mortgages by endorsed receipts.-(1) A receipt endorsed on, written at the
foot of, or annexed to, a mortgage for all money thereby secured, which states
the name
of the person who pays the money and is executed by the chargee by way
of legal mortgage or the person in whom the mortgaged property
is vested and who
is legally entitled to give a receipt for the mortgaged money shall operate,
without any reconveyance, surrender,
or release-
(a) Where a mortgage takes effect by demise or subdemise, as a surrender of the term, so as to determine the term or merge the same in the reversion immediately expectant thereon;
(b) Where the mortgage does not take effect by demise or subdemise, as a reconveyance thereof to the extent of the interest which is the subject matter of the mortgage, to the person who immediately before the execution of the receipt was entitled to the equity of redemption;
and in either case, as a discharge
of the mortgage property from all principal money and interest secured by, and
from all claims
under the mortgage, but without prejudice to any term or other
interest which is paramount to the estate or interest of the mortgagee
or other
person in whom the mortgaged property was vested.
(2) Provided that,
where by the receipt the money appears to have been paid by a person who is not
entitled to the immediate equity
of redemption, the receipt shall operate as if
the benefit of the mortgage had by deed been transferred to him; unless
-
(a) it is otherwise expressly provided; or
(b) the mortgage is paid off out of capital money, or other money in the hands of a personal representative or trustee properly applicable for the discharge of the mortgage,
and it is not expressly provided
that the receipt is to operate as a transfer.
(3) Nothing in this section
confers on a mortgagor a right to keep alive a mortgage paid off by him, so as
to affect prejudicially
any subsequent incumbrancer; and where there is no right
to keep the mortgage alive, the receipt does not operate as a
transfer.
(4) This section does not affect the right of any person to
require a reassignment, surrender, release, or transfer to be executed
in lieu
of a receipt.
(5) A receipt may be given in the form contained in the
Third Schedule to this Act with such variations and additions, if any, as
may be
deemed expedient; and where it takes effect under this section, it shall
(subject as hereinafter provided) be liable to the
same stamp duty as if it were
a reconveyance under seal.
(6) In a receipt given under this section the
same covenants shall be implied as if the person who executes the receipt had by
deed
been expressed to convey the property as mortgagee, subject to any interest
which is paramount to the mortgage.
(7) Where the mortgage consists of a
mortgage and a further charge or of more than one deed, it shall be sufficient
for the purposes
of this section, if the receipt refers either to all the deeds
whereby the mortgage money is secured or to the aggregate amount of
the mortgage
money thereby secured and for the time being owing, and is endorsed on, written
at the foot of, or annexed to, one of
the mortgage deeds.
(8) This
section applies to the discharge of a charge by way of legal mortgage, and to
the discharge of a mortgage, whether made by
way of statutory mortgage or not,
executed before or after the commencement of this Act, but only as respects
discharges effected
after such commencement.
(9) The provisions of this
section relating to the operation of a receipt shall (in substitution for the
like statutory provisions
relating to receipts given by or on behalf of a
building, friendly, industrial or provident society) apply to the discharge of a
mortgage made to any such society, provided that the receipt is executed in the
manner required by the statute relating to the society,
but nothing in this
section shall render a receipt given by or on behalf of any such society liable
to any stamp duty which would
not have been otherwise payable.
(10) This
section does not apply to the discharge of a charge or incumbrance registered
under the Land Registration Act, 1925.
(11) In this section "mortgaged
property" means the property remaining subject to the mortgage at the date of
the receipt.
116. Cesser of mortgage
terms.- Without prejudice to the right of a tenant for life or other
person having only a limited interest in the equity of redemption to
require a
mortgage to be kept alive by transfer or otherwise, a mortgage term shall, when
the money secured by the mortgage has been
discharged, become a satisfied term
and shall cease.
117. Forms of statutory legal charges.- (1) As a special form of charge by way of legal mortgage, a mortgage of freehold or leasehold land may be made by a deed expressed to be made by way of statutory mortgage, being in one of the forms (Nos. 1 or 4) set out in the Fourth Schedule to this Act, with such variations and additions, if any, as circumstances may require, and if so made the provisions of this section shall apply thereto.
(2) There shall be deemed to be
included, and there shall by virtue of this Act be implied, in such a mortgage
deed -
First, a covenant with the mortgagee by the person therein
expressed to charge as mortgagor to the effect following, namely:-
That the mortgagor will, on the stated day, pay to the mortgagee the stated mortgage money, with interest thereon in the meantime at the stated rate, and will thereafter, if and as long as the mortgage money or any part thereof remains unpaid, pay to the mortgagee (as well after as before any judgment is obtained under the mortgage) interest thereon, or on the unpaid part thereof, at the stated rate, by equal half-yearly payments the first thereof to be made at the end of six months from the day stated for payment of the mortgage money:
Secondly, a provision to the following
effect (namely):-
That if the mortgagor on the stated day pays to the mortgagee the stated mortgage money, with interest thereon in the meantime at the stated rate, the mortgagee at any time thereafter, at the request and cost of the mortgagor, shall discharge the mortgaged property or transfer the benefit of the mortgage as the mortgagor may direct.
This subsection
applies to a mortgage deed made under section twenty-six of the Conveyancing
Act, 1881, with a substitution of a reference
to "the person therein expressed
to convey as mortgagor" for the reference in this subsection to "the person
therein expressed to
charge as
mortgagor."
118. Forms of statutory
transfers of legal charges.- (1) A transfer of a statutory mortgage may
be made by a deed expressed to be made by way of statutory transfer of mortgage,
being
in such one of the three forms (Nos. 2, 3 or 4) set out in the Fourth
Schedule to this Act as may be appropriate to the case with
such variations and
additions, if any, as circumstances may require, and if so made the provisions
of this section shall apply thereto.
(2) In whichever of those three
forms the deed of transfer is made, it shall have effect as follows
(namely):-
(i) There shall become vested in the person to whom the benefit of the mortgage is expressed to be transferred (who, with his personal representatives and assigns, is in this section designated the transferee), the right to demand, sue for, recover, and give receipts for the mortgage money, or the unpaid part thereof, and the interest then due, if any, and thenceforth to become due thereon, and the benefit of all securities for the same, and the benefit of and the right to sue on all covenants with the mortgagee, and the right to exercise all powers of the mortgagee;
(ii) All the term and interest, if any, subject to redemption, of the mortgagee in the mortgaged land shall vest in the transferee, subject to redemption.
(3) If a covenantor joins in the
deed of transfer, there shall also be deemed to be included, and there shall by
virtue of this Act
be implied therein, a covenant with the transferee by the
person expressed to join therein as covenantor to the effect following
(namely):-
That the covenantor will, on the next of the days by the mortgage deed fixed for payment of interest pay to the transferee the stated mortgage money, or so much thereof as then remains unpaid, with interest thereon, or on the unpaid part thereof, in the meantime, at the rate stated in the mortgage deed; and will thereafter, as long as the mortgage money or any part thereof remains unpaid, pay to the transferee interest on that sum, or the unpaid part thereof, at the same rate, on the successive days by the mortgage deed fixed for payment of interest.
(4) If the deed of transfer is made
in the Form No. 4, it shall, by virtue of this Act, operate not only as a
statutory transfer of
mortgage, but also as a statutory mortgage, and the
provisions of this section shall have effect in relation thereto accordingly;
but it shall not be liable to any increased stamp duty by reason only of it
being designated a mortgage.
(5) This section applies to the transfer of
a statutory mortgage created under any enactment replaced by this
Act.
119. Implied covenants, joint and
several.- In a deed of statutory mortgage, or of statutory transfer of
mortgage, where more persons than one are expressed to convey or charge
as
mortgagors, or to join as covenantors, the implied covenant on their part shall
be deemed to be a joint and several covenant by
them; and where there are more
mortgagees or more transferees than one, the implied covenant with them shall be
deemed to be a covenant
with them jointly, unless the amount secured is
expressed to be secured to them in shares or distinct sums, in which latter case
the implied covenant with them shall be deemed to be a covenant with each
severally in respect of the share or distinct sum secured
to
him
120. Form of discharge of statutory
mortgage or charge.- A statutory mortgage may be surrendered or
discharged by a receipt in the form (No. 5) set out in the Fourth Schedule to
this Act
with such variations and additions, if any, as circumstances may
require.
Rentcharges
121. Remedies for the
recovery of annual sums charged on land.- (1) Where a person is entitled
to receive out of any land, or out of the income of any land, any annual sum,
payable half-yearly or
otherwise, whether charged on the land or on the income
of the land, and whether by way of rent charge of otherwise not being rent
incident to a reversion, then, subject and without prejudice to all estates,
interests, and rights having priority to the annual
sum, the person entitled to
receive the annual sum shall have such remedies for recovering and compelling
payment thereof as are
described in this section, as far as those remedies might
have been conferred by the instrument under which the annual sum arises,
but not
further.
(2) If at any time the annual sum or any part thereof is unpaid
for twenty-one days next after the time appointed for any payment
in respect
thereof, the person entitled to receive the annual sum may enter into and
distrain on the land charged or any part thereof,
and dispose according to law
of any distress found, to the intent that thereby or otherwise the annual sum
and all arrears thereof,
and all costs and expenses occasioned by non-payment
thereof, may be fully paid.
(3) If at any time the annual sum or any part
thereof is unpaid for forty days next after the time appointed for any payment
in respect
thereof, then, although no legal demand has been made for payment
thereof, the person entitled to receive the annual sum may enter
into possession
of and hold the land charged or any part thereof, and take the income thereof,
until thereby or otherwise the annual
sum and all arrears thereof due at the
time of his entry, or afterwards becoming due during his continuance in
possession, and all
costs and expenses occasioned by non-payment of the annual
sum, are fully paid; and such possession when taken shall be without impeachment
of waste.
(4) In the like case the person entitled to the annual sum,
whether taking possession or not, may also by deed demise the land charged,
or
any part thereof, to a trustee for a term of years, with or without impeachment
of waste, on trust, by all or any of the means
hereinafter mentioned, or by any
other reasonable means, to raise and pay the annual sum and all arrears thereof
due or to become
due, and all costs and expenses occasioned by non-payment of
the annual sum, or incurred in compelling or obtaining payment thereof,
or
otherwise relating thereto, including the costs of the preparation and execution
of the deed of demise, and the costs of the execution
of the trusts of that
deed:
Provided that this subsection shall not authorise the creation of a
legal term of years absolute after the commencement of this Act,
save where the
annual sum is a rent charge held for a legal estate.
The surplus, if any,
of the money raised, or of the income received, under the trusts of the deed
shall be paid to the person for
the time being entitled to the land therein
comprised in reversion immediately expectant on the term thereby
created.
The means by which such annual sum, arrears, costs, and expenses
may be raised includes-
(a) the creation of a legal mortgage or a sale (effected by assignment or subdemise) of the term created in the land charged or any part thereof,
(b) the receipt of the income of the land comprised in the term.
(5) This section applies only if and as far as a
contrary intention is not expressed in the instrument under which the annual sum
arises, and has effect subject to the terms of that instrument and to the
provisions therein contained.
(6) The rule of law relating to
perpetuities does not apply to any powers or remedies conferred by this section,
nor to the same or
like powers or remedies conferred by any instrument for
recovering or compelling the payment of any annual sum within the meaning
of
this section.
(7). The powers and remedies conferred by this section
apply where the instrument creating the annual sum comes into the operation
after the thirty-first day of December, eighteen hundred and eighty-one, and
whether the instrument conferring the power under which
the annual sum was
authorised to be created came into operation before or after that date, unless
the instrument creating the power
or under which the annual sum is created
otherwise directs.
122. Creation of
rent charges charged on another rent charge and remedies for recovery thereof.-
(1) A rent charge or other annual sum (not being rent incident to a
reversion) payable half yearly or otherwise may be granted, reserved,
charged or
created out of or on another rent charge or annual sum (not being rent incident
to a reversion) charged on or payable
out of land or on or out of the income of
land, in like manner as the same could have been made to issue out of
land.
(2) If at any time the annual sum so created or any part thereof is
unpaid for twenty-one days next after the time appointed for any
payment in
respect thereof, the person entitled to receive the annual sum shall (without
prejudice to any prior interest or charge)
have power to appoint a receiver of
the annual sum charged or any part thereof, and the provisions of this Act
relating to the appointment,
powers, remuneration and duties of a receiver,
shall apply in like manner as if such person were a mortgagee entitled to
exercise
the power of sale conferred by this Act, and the annual sum charged
were the mortgaged property and the person entitled thereto were
the
mortgagor.
(3) The power to appoint a receiver conferred by this section
shall (where the annual sum is charged on a rent charge) take effect
in
substitution for the remedies conferred, in the case of annual sums charged on
land, by the last preceding section, but subsection
(6) of that section shall
apply and have effect as if herein re-enacted and in terms made applicable to
the powers conferred by this
section.
(4) This section applies to annual
sums expressed to be created before as well as after the commencement of this
Act, and, but without
prejudice to any order of the court made before the
commencement of this Act, operates to confirm any annual sum which would have
been validly created if this section had been in force.
Powers of Attorney.
123. Execution under
power of attorney.- (1) The donee of a power of attorney may, if he
thinks fit, execute or do any assurance, instrument, or thing in and with his
own
name and signature, and under his own seal, where sealing is required, by
the authority of the donor of the power; and every assurance,
instrument, and
thing so executed and done shall be as effectual in law, to all intents, as if
it had been executed or done by the
donee of the power in the name and with the
signature and the seal the donor thereof.
(2) This section applies to
powers of attorney created by instruments executed either before or after the
commencement of this Act,
and operates without prejudice to any statutory
direction that an instrument is to be executed in the name of an estate
owner.
124. Payment by attorney under
power without notice of death, etc.- (1) Any person making any payment or
doing any act, in good faith, in pursuance of a power of attorney, shall not be
liable in respect
of the payment or act by reason that before the payment or act
the donor of the power had died or become subject to disability or
bankrupt, or
had revoked the power, if the fact of death, disability, bankruptcy, or
revocation was not at the time of the payment
or act known to the person making
or doing the same.
(2) A statutory declaration by an attorney to the
effect that he has not received any notice or information of the revocation of
such
power of attorney by death or otherwise shall, if made immediately before
or within three months after any such payment or act as
aforesaid, be taken to
be conclusive proof of such non-revocation at the time when such payment or act
was made or done.
Where the donee of the power of attorney is a
corporation aggregate, the officer appointed to act for the corporation in the
execution
of that power may make the statutory declaration in like manner as if
that officer had been the donee of the power.
Where probate or letters of
administration have been granted to any person, as attorney for some other
person, this section applies
as if the payment made or acts done under the grant
had been made or done under a power of attorney.
(3) This section does
not affect any right against the payee of any person interested in any money so
paid; and that person shall
have the like remedy against the payee as he would
have had against the payer if the payment had not been made by him.
(4)
This section applies to payments and acts made and done before or after the
commencement of this Act, and in this section "power
of attorney" includes a
power of attorney implied by
statute.
125. Powers of attorney
relating to land to be filed.- (1) Where an instrument creating a power
of attorney confers a power to dispose of or deal with any interest in or change
upon land,
the instrument or a certified copy thereof or of such portions
thereof as refer to or are necessary to the interpretation of such
power shall
be filed at the Central Office pursuant to the statutory enactment in that
behalf, unless the instrument only relates
to one transaction and is to be
handed over on the completion of that transaction:
Provided that, if the
instrument relates to land or a charge registered under the Land Registration
Act, 1925, the instrument or a
certified copy thereof or of such portions
thereof as aforesaid shall be filed at the Land Registry, and it shall not be
necessary
to file it at the Land Registry, and it shall not be necessary to file
it at the Central Office unless it also relates to land or
a charge not so
registered, in which case the instrument or a certified copy thereof or of such
portions thereof as aforesaid shall
be filed at the Central Office and an office
copy shall be filed at the Land Registry.
(2) Notwithstanding any
stipulation to the contrary, a purchaser of any interest in or charge upon land
(not being land or a charge
registered as aforesaid) shall be entitled to have
any instrument creating a power of attorney which affects his title, or [a copy]
thereof or of the material portions thereof delivered to him free of
expenses.
(3) This section only applies to instruments executed after the
commencement of this Act, and no right to rescind a contract shall
arise by
reason of the enforcement of the provisions of this
section.
126. Effect of irrevocable
power of attorney for value.- (1) If a power of attorney given for
valuable consideration in the instrument creating the power expressed to be
irrevocable, then,
in favour of a purchaser,-
(i) The power shall not be revoked at any time, either by anything done by the donor of the power without the concurrence of the donee of the power, or by the death, disability or bankruptcy of the donor of the power; and
(ii) Any act done at any time by the donee of the power in pursuance of the power shall be as valid as if anything done by the donor of the power without the concurrence of the donee of the power, or the death, disability or bankruptcy of the donor of the power, had not been done or happened; and
(iii) Neither the donee of the power nor the purchaser shall at any time be prejudicially affected by notice of anything done by the donor of the power without the concurrence of the donee of the power, or of the death, disability or bankruptcy of the donor of the power.
(2)
This section applies to powers of attorney created by instruments executed after
the thirty-first day of December, eighteen hundred
and
eighty-two.
127. Effect of power of
attorney irrevocable for a fixed term.- (1) If a power of attorney,
whether given for valuable consideration or not, is in the instrument creating
the power expressed to
be irrevocable for a fixed time therein specified, not
exceeding one year from the date of the instrument, then, in favour of a
purchaser,-
(i) The power shall not be revoked for and during that fixed time either by anything done by the donor of the power without the concurrence of the donee of the power, or by the death, disability or bankruptcy of the donor of the power; and
(ii) Any act done within that fixed time by the donee of the power in pursuance of the power shall be as valid as if anything done by the donor of the power without the concurrence of the donee of the power, or the death, disability or bankruptcy of the donor of the power, had not been done or happened; and
(iii) Neither the donee of the power, nor the purchaser shall at any time be prejudicially affected by notice either during or after that fixed time of anything done by the donor of the power during the fixed time without the concurrence of the donee of the power, or of the death, disability or bankruptcy of the donor of the power, within that fixed time.
(2) This section applies to powers of
attorney created by instruments executed after the thirty-first day of December,
eighteen hundred
and eighty-two.
128.
Devolution of power of attorney given to a purchaser.- (1) A power of
attorney given for valuable consideration may be given, and shall be deemed to
have been always capable of being given,
to a purchaser of property or any
interest therein, and to the persons deriving title under him thereto, and those
persons shall
be the duly constituted attorneys for all the purposes of the
power, but without prejudice to any right to appoint substitutes given
by the
power.
(2) This section applies to powers of attorney created by
instruments executed after the thirty-first day of December, eighteen hundred
and eighty-two.
(3) This section does not authorise the persons deriving
title under the donee of the power to execute, on behalf of the registered
proprietor, an instrument relating to registered land to which effect is to be
given on the register, unless the power is protected
by a caution or other entry
on the register.
129. Power of attorney
granted by married woman. – (1) A married woman, whether an infant
or not, has power, as if she were unmarried and of full age, by deed, to appoint
an attorney
on her behalf for the purpose of executing any deed or doing any
other act which she might herself execute or do, and the provisions
of this Act
relating to instruments creating powers of attorney apply thereto.
(2)
This section applies to deeds executed after the thirty-first day of December,
eighteen hundred and eighty-one.
__________
PART IV.
EQUITABLE INTERESTS AND THINGS IN ACTION.
130. Creation of
entailed interests in real and personal property.- (1) An interest in
tailor in tail male or in tail female or in tail special (in this Act referred
to as "an entailed interest")
may be created by way of trust in any property,
real or personal, but only by the like expressions as those by which before the
commencement
of this Act a similar estate tail could have been created by deed
(not being an executory instrument) in freehold land, and with
the like results,
including the right to bar the entail either absolutely or so as to create an
interest equivalent to a base fee,
and accordingly all statutory provisions
relating to estates tail in real property shall apply to entailed interests in
personal
property.
Personal estate so entailed (not being chattels
settled as heirlooms) may be invested, applied, and otherwise dealt with as if
the
same were capital money or securities representing capital money arising
under the Settled Land Act, 1925, from land settled on the
like
trusts.
(2) Expressions contained in an instrument coming into operation
after the commencement of this Act, which, in a will, or executory
instrument
coming into operation before such commencement, would have created an entailed
interest in freehold land, but would not
have been effectual for that purpose in
a deed not being an executory instrument, shall (save as provided by the next
succeeding
section) operate in equity, in regard to property real or personal,
to create absolute, fee simple or other interests corresponding
to those which,
if the property affected had been personal estate, would have been created
therein by similar expressions before
the commencement of this Act.
(3)
Where personal estate (including the proceeds of sale of land directed to be
sold and chattels directed to be held as heirlooms)
is, after the commencement
of this Act, directed to be enjoyed or held with, or upon trusts corresponding
to trusts affecting, land
in which either before or after the commencement of
this Act an entailed interest has been created, and is subsisting, such
direction
shall be deemed sufficient to create a corresponding entailed interest
in such personal estate.
(4) In default of and subject to the execution
of a disentailing assurance or the exercise of the testamentary power conferred
by
this Act, an entailed interest (to the extent of the property affected) shall
devolve as an equitable interest, from time
to, time, upon the persons who
would have been successively entitled thereto as the heirs of the body (either
generally or of a particular
class) of the tenant in tail or other person, or as
tenant by the curtesy, if the entailed interest had, before the commencement
of
this Act, been limited in respect of freehold land governed by the general law
in force immediately before such commencement,
and such law had remained
unaffected.
(5) Where personal chattels are settled without reference to
settled land on trusts creating entailed interests therein, the trustees,
with
the consent of the usufructuary for the time being if of full age, may sell the
chattels or any of them, and the net proceeds
of any such sale shall be held in
trust for and shall go to the same persons successively, in the same manner and
for the same interests,
as the chattels sold would have been held and gone if
they had not been sold, and the income of investments representing such proceeds
of sale shall be applied accordingly.
(6) An entailed interest shall only
be capable of being created by a settlement: of real or personal property or the
proceeds of sale
thereof (including the will of a person dying after the
commencement of this Act), or by an agreement for a settlement in which the
trusts to affect the property are sufficiently declared.
(7) In this Act
where the context so admits "entailed interest" includes an estate tail (now
made to take effect as an equitable interest)
created before the commencement of
this Act.
131. Abolition of the rule in
Shelley's case.- Where by any instrument coming into operation after the
commencement of this Act an interest in any property is expressed to be
given to
the heir or heirs or issue or any particular heir or any class of the heirs or
issue of any person in words which, but for
this section would, under the rule
of law known as the Rule in Shelley's case, have operated to give to that person
an interest in
fee simple or an entailed interest, such words shall operate in
equity as words of purchase and not of limitation, and shall be construed
and
have effect accordingly, and in the case of an interest in any property
expressed to be given to an heir or heirs or any particular
heir or class of
heirs, the same person or persons shall take as would in the case of freehold
land have answered that description
under the general law in force before the
commencement of this Act.
132. As to
heirs taking by purchase.- (1) A limitation of real or personal property
in favour of the heir, either general or special, of a deceased person which, if
limited
in respect of freehold land before the commencement of this Act, would
have conferred on the heir an estate in the land by purchase,
shall operate to
confer a corresponding equitable, interest in the property on the person who
would, if the general law in force
immediately before such commencement had
remained unaffected, have answered the description of the heir, either general
or special,
of the deceased in respect of his freehold land, either at the death
of the deceased or at the time named in the limitation, as the
case may
require.
(2) This section applies whether the deceased person dies before
or after the commencement of this Act, but only applies to limitations
or trusts
created by an instrument coming into operation after such
commencement.
133. Abolition of
enrolment of disentailing assurances, etc.- (1) Every assurance or
instrument executed or made after the commencement of this Act which, under the
provisions of sections forty-one,
forty-six, fifty-eight, fifty-nine,
seventy-one, and seventy-two of the Fines and Recoveries Act, 1883, or otherwise
under that Act
(as amended by this Act), would have been required to be enrolled
in the Central Office in England, shall be as effectual for all
purposes,
without such enrolment, as if it had been duly enrolled within the time
prescribed by the said Act for such enrolment.
(2) In this section
"assurance" includes a vesting order operating as a disentailing assurance,
whether made for barring an estate
tail or enlarging a base fee or
otherwise.
(3) This section applies to entailed interests authorised to
be created by this Act as well as to estates tail created before the
commencement of this Act.
134.
Restriction on executory limitations.- (1) Where there is a person
entitled to -
(a) an equitable interest in land for an estate in fee simple or for any less interest not being an entailed interest, or
(b) any interest in other property, not being an entailed interest,
with an
executory limitation over on default or failure of all or any of his issue,
whether within or at any specified period or time
or not, that executory
limitation shall be or become void and incapable of taking effect, if and as
soon as there is living any issue
who has attained [the age of eighteen years of
the class on default or failure whereof the limitation over was to take
effect.
(2) This section applies where the executory limitation is
contained in an instrument coming into operation after the thirty-first
day of
December, eighteen hundred and eighty-two, save that, as regards instruments
coming into operation before the commencement
of this Act, it only applies to
limitations of land for an estate in fee, or for a term of years absolute or
determinable on life,
or for a term of
life.
135. Equitable waste.- An
equitable interest for life without impeachment of waste does not confer upon
the tenant for life any right to commit waste of
the description known as
equitable waste, unless an intention to confer such right expressly appears by
the instrument creating such
equitable
interest.
136. Legal assignments of
things in action.- (1) Any absolute assignment by writing under the hand
of the assignor (not purporting to be by way of charge only) of any debt or
other legal thing in action, of which express notice in writing has been given
to the debtor, trustee or other person from whom the
assignor would have been
entitled to claim such debt or thing in action, is effectual in law (subject to
equities having priority
over the right of the assignee) to pass and transfer
from the date of such notice-
(a) the legal right to such debt or thing in action;
(b) all legal and other remedies for the same; and
(c) the power to give a good discharge for the same without the concurrence of the assignor:
Provided that, if the debtor,
trustee or other person liable in respect of such debt or thing in action has
notice-
(a) that the assignment is disputed by the assignor or any person claiming under him; or
(b) of any other opposing or conflicting claims to such debt or thing in action;
he may, if he thinks fit, either call
upon the persons making claim thereto to interplead concerning the same, or pay
the debt or
other thing in action into court under the provisions of the Trustee
Act, 1925.
(2) This section does not affect the provisions of the
Policies of Assurance Act, 1867.
137.
Dealings with life interests, reversions and other equitable interests.-
(1) The law applicable to dealings with equitable things in action which
regulates the priority of competing interests therein,
shall, as respects
dealings with equitable interests in land, capital money, and securities
representing capital money effected after
the commencement of this Act, apply to
and regulate the priority of competing interests therein.
This subsection
applies whether or not the money or securities are in court.
(2) (i) In the case of a dealing with an equitable interest in settled land, capital money or securities representing capital money, the persons to be served with notice of the dealing shall be the trustees of the settlement; and where the equitable interest is created by a derivative or subsidiary settlement, the persons to be served with notice shall be the trustees of that settlement.
(ii) In the case of a dealing with an equitable interest in the proceeds of sale of land or in the rents and profits until sale the persons to be served with notice shall, as heretofore, be the trustees for sale.
(iii) In any other case the person to be served with notice of a dealing with an equitable interest in land shall be the estate owner of the land affected.
The persons on whom notice is served
pursuant to this subsection shall be affected thereby in the same manner as if
they had been
trustees of personal property out of which the equitable interest
was created or arose.
This subsection does not apply where the money or
securities are in court.
(3) A notice, otherwise than in writing, given
to, or received by, a trustee after the commencement of this Act as respects any
dealing
with an equitable interest in real or personal property, shall not
affect the priority of competing claims of purchasers in that
equitable
interest.
(4) Where, as respects any dealing with an equitable interest
in real or personal property-
(a) the trustees are not persons to whom a valid notice of the dealing can be given; or
(b) there are no trustees to whom a notice can be given; or
(c) for any other reason a valid notice cannot be served, or cannot be served without unreasonable cost or delay;
a purchaser may at his own cost require
that-
(i) a memorandum of the dealing be endorsed, written on or permanently annexed to the instrument creating the trust;
(ii) the instrument be produced to him by the person having the possession or custody thereof to prove that a sufficient memorandum has been placed thereon or annexed thereto.
Such memorandum shall, as
respects priorities, operate in like manner as if notice in writing of the
dealing had been given to trustees
duly qualified to receive the notice at the
time when the memorandum is placed on or annexed to the instrument creating the
trust.
?(5)? Where the property affected is settled land, the memorandum
shall be placed on or annexed to the trust instrument and not the
vesting
instrument.
(5) Where the property affected is land held on trust for
sale, the memorandum shall be placed on or annexed to the instrument whereby
the
equitable interest is created.
(6) Where the trust is created by statute
or by operation of law, or in any case where there is no instrument whereby the
trusts are
declared, the instrument under which the equitable interest is
acquired or which is evidence of the devolution thereof shall, for
the purposes
of this section, be deemed the instrument creating the trust.
In
particular, where the trust arises by reason of an intestacy, the letters of
administration or probate in force when the dealing
was effected shall be deemed
such instrument.
(7) Nothing in this section affects any priority
acquired before the commencement of this Act.
(8) Where a notice in
writing of a dealing with an equitable interest in real or personal property has
been served on a trustee under
this section, the trustees from time to time of
the property affected shall be entitled to the custody of the notice, and the
notice
shall be delivered to them by any person who for the time being may have
the custody thereof; and subject to the payment of costs,
any person interested
in the equitable interest may require production of the notice.
(9) The
liability of the estate owner of the legal estate affected to produce documents
and furnish information to persons entitled
to equitable interests therein shall
correspond to the liability of a trustee for sale to produce documents and
furnish information
to persons entitled to equitable interests in the proceeds
of sale of the land.
(10) This section does not apply until a trust has
been created, and in this section "dealing" includes a disposition by operation
of law.
138. Power to nominate a trust
corporation to receive notices.- (1) By any settlement or other
instrument creating a trust, a trust corporation may be nominated to whom
notices of dealings affecting
real or personal property may be given, whether or
not under the foregoing section, and in default of such nomination the trustees
(if any) of the instrument, or the court on the application of any person
interested, may make the nomination.
(2) The person having the possession
or custody of any instrument on which notices under that section may be endorsed
shall cause
the name of the trust corporation to whom notices may be given to be
endorsed upon that instrument.
(3) Notice given to any trust corporation
whose name is so endorsed shall operate in the same way as a notice or
endorsement under
the foregoing section.
(4) Where a trust corporation is
acting for the purposes of this section a notice given to a trustee of the trust
instrument of a
dealing relating to the trust property shall forthwith be
delivered or sent by post by the trustee to the trust corporation, and
until
received by the corporation shall not affect any priority.
(5) A trust
corporation shall not be nominated for the purposes of this section-
(a) unless that corporation consents to act; or
(b) where that corporation has any beneficial interest in or charge upon the trust property; or
(c) where a trust corporation is acting as the trustee or one of the trustees of the instrument creating the trust.
(6) Where a trust corporation acting
for the purposes of this section becomes entitled to any beneficial interest in
or charge upon
the trust property, another trust corporation shall be nominated
in its place and all documents relating to notices affecting the
trust shall be
delivered to the corporation so nominated.
(7) A trust corporation acting
for the purposes of this section shall be bound to keep a separate register of
notices of dealings
in respect of each equitable interest and shall enter
therein-
(a) the date of the notice;
(b) the name of the person giving the notice;
(c) short particulars of the equitable interest intended to be affected; and
(d) short particulars of the effect of the dealing if mentioned in the notice.
(8)
The trust corporation may, before making any entry in the register, require the
applicant to pay a fee not exceeding the prescribed
fee.
(9) Subject to
the payment of a fee not exceeding the prescribed fee, the trust corporation
shall permit any person who would, if
the corporation had been the trustee of
the trust instrument, have been entitled to inspect notices served on the
trustee, to inspect
and take copies of the register and any notices held by the
corporation.
(10) Subject to the payment by the applicant of a fee not
exceeding the prescribed fee, the trust corporation shall reply to all inquiries
respecting notices received by the corporation in like manner and in the same
circumstances as if the corporation had been the trustee
of the trust
instrument.
(11) In this section "prescribed fee" means the fee
prescribed by the Treasury, with the sanction of the Lord Chancellor, in cases
where the Public Trustee acts as a trust corporation for the purposes of this
section.
____________
PART V.
LEASES AND TENANCIES.
139. Effect of
extinguishment of reversion.- (1) Where a reversion expectant on a lease
of land is surrendered or merged, the estate or interest which as against the
lessee for
the time being confers the next vested right to the land, shall be
deemed the reversion for the purpose of preserving the same incidents
and
obligations as would have affected the original reversion had there been no
surrender or merger thereof.
(2) This section applies to surrenders or
mergers effected after the first day of October, eighteen hundred and
forty-five.
140. Apportionment of
conditions on severance.- (1) Notwithstanding the severance by
conveyance, surrender, or otherwise of the reversionary estate in any land
comprised in a lease,
and notwithstanding the avoidance or cesser in any other
manner of the term granted by a lease as to part only of the land comprised
therein, every condition or right of re-entry, and every other condition
contained in the lease, shall be apportioned, and shall
remain annexed to the
severed parts of the reversionary estate as severed, and shall be in force with
respect to the term whereon
each severed part is reversionary, or the term in
the part of the land as to which the term has not been surrendered, or has not
been avoided or has not otherwise ceased, in like manner as if the land
comprised in each severed part, or the land as to which the
term remains
subsisting, as the case may be, had alone originally been comprised in the
lease.
(2) In this section "right of re-entry" includes a right to
determine the lease by notice to quit or otherwise; but where the notice
is
served by a person entitled to a severed part of the reversion so that it
extends to part only of the land demised, the lessee
may within one month
determine the lease in regard to the rest of the land by giving to the owner of
the reversionary estate therein
a counter notice expiring at the same time as
the original notice.
[Provided that where the land demised is an
agricultural holding within the meaning of the Agricultural Holdings Act, 1923,
the tenant
on whom notice to quit is served by the person entitled to a severed
part of the reversion may at any time within twenty-eight days
of the service of
such notice to quit, serve on the person severally entitled to the several parts
of the reversion a notice in writing
to the effect that he accepts the notice to
quit as a notice to quit the entire holding given by the persons so severally
entitled
to take effect at the same time as the original notice; and such
acceptance shall have effect as if it were the acceptance of a notice
to quit to
which paragraph (d) of subsection (7)
of section twelve of the said Act applies.]
(3) This section applies to
leases made before or after the commencement of this Act and whether the
severance of the reversionary
estate or the partial avoidance or cesser of the
term was effected before or after such commencement:
Provided that, where
the lease was made before the first day of January eighteen hundred and
eighty-two nothing in this section shall
affect the operation of a severance of
the reversionary estate or partial avoidance or cesser of the term which was
effected before
the commencement of this
Act.
141. Rent and benefit of lessee's
covenants to run with the reversion.- (1) Rent reserved by a lease, and
the benefit of every covenant or provision therein contained, having reference
to the subject-matter
thereof, and on the lessee's part to be observed or
performed, and every condition of re-entry and other condition therein
contained,
shall be annexed and incident to and shall go with the reversionary
estate in the land, or in any part thereof, immediately expectant
on the term
granted by the lease, notwithstanding severance of that reversionary estate, and
without prejudice to any liability affecting
a convenantor or his
estate.
(2) Any such rent, covenant or provision shall be capable of
being recovered, received, enforced, and taken advantage of, by the person
from
time to time entitled, subject to the term, to the income of the whole or any
part, as the case may require, of the land leased.
(3) Where that person
becomes entitled by conveyance or otherwise, such rent, covenant or provision
may be recovered, received, enforced
or taken advantage of by him
notwithstanding that he becomes so entitled after the condition of re-entry or
forfeiture has become
enforceable, but his subsection does not render
enforceable any condition of re-entry or other condition waived or released
before
such person becomes entitled as aforesaid.
(4) This section
applies to leases made before or after the commencement of this Act, but does
not affect the operation of-
(a) any severance of the reversionary estate; or
(b) any acquisition by conveyance or otherwise of the right to receive or any rent covenant or provision;
effected before the commencement of
this Act.
142. Obligation of lessor's
covenants to run with reversion.- (1) The obligation under a condition or
of a covenant entered into by a lessor with reference to the subject-matter of
the lease
shall, if and as far as the lessor has power to bind the reversionary
estate immediately expectant on the term granted by the lease,
be annexed and
incident to and shall go with that reversionary estate, or the several parts
thereof, notwithstanding severance of
that reversionary estate, and may be taken
advantage of and enforced by the person in whom the term is from time to time
vested by
conveyance, devolution in law, or otherwise; and, if and as far as the
lessor has power to bind the person from time to time entitled
to that
reversionary estate, the obligation aforesaid may be taken advantage of and
enforced against any person so entitled.
(2) This section applies to
leases made before or after the commencement of this Act, whether the severance
of the reversionary estate
was effected before or after such
commencement:
Provided that, where the lease was made before the first
day of January eighteen hundred and eighty-two, nothing in this section shall
affect the operation of any severance of the reversionary estate effected before
such commencement.
This section takes effect without prejudice to any
liability affecting a covenantor or his
estate.
143. Effect of licences granted
to lessees.- (1) Where a licence is granted to a lessee to do any act,
the licence, unless otherwise expressed, extends only -
(a) to the permission actually given; or
(b) to the specific breach of any provision or covenant referred to; or
(c) to any other matter thereby specifically authorised to be done;
and the
licence does not prevent any proceeding for any subsequent breach unless
otherwise specified in the licence.
(2) Notwithstanding any such licence
-
(a) All rights under covenants and powers of re-entry contained in the lease remain in full force and are available as against any subsequent breach of covenant, condition or other matter not specifically authorised or waived, in the same manner as if no licence had been granted; and
(b) The condition or right of entry remains in force in all respects as if the licence had not been granted, save in respect of the particular matter authorised to be done.
(3) Where in any lease there is a power
or condition of re-entry on the lessee assigning, subletting or doing any other
specified
act without a licence, and a licence is granted -
(a) to any one or two or more lessees to do any act, or to deal with his equitable share or interest ; or
(b) to any lessee, or to any one of two or more lessees to assign or underlet part only of the property, or to do any act in respect of part only of the property;
the licence does not operate to
extinguish the right of entry in case of any breach of covenant or condition by
the co-lessees of
the other shares or interests in the property, or by the
lessee or lessees of the rest of the property (as the case may be) in respect
of
such shares or interests or remaining property, but the right of entry remains
in force in respect of the shares, interests or
property not the subject of the
licence.
This subsection does not authorise the grant after the
commencement of this Act of a licence to create an undivided share in a legal
estate.
(4) This section applies to licences granted after the thirteenth
day of August eighteen hundred and
fifty-nine.
144. No fine to be exacted
for licence to assign.- In all leases containing a covenant, condition,
or agreement against assigning, underletting, or parting with the possession, or
disposing of the land or property leased without licence or consent, such
covenant, condition, or agreement shall, unless the lease
contains an express
provision to the contrary, be deemed to be subject to a proviso to the effect
that no fine or sum of money in
the nature of a fine shall be payable for or in
respect of such licence or consent; but this proviso does not preclude the right
to require the payment of a reasonable sum in respect of any legal or other
expense incurred in relation to such licence or
consent.
145. Lessee to give notice of
ejectment to lessor.- Every lessee to whom there is delivered any writ
for the recovery of premises demise to or held by him, or to whose knowledge any
such writ comes, shall forthwith give notice thereof to his lessor or his
bailiff or receiver, and, if he fails so to do, he shall
be liable to forfeit to
the person of whom he holds the premises an amount equal to the value of three
years' improved or rack rent
of the premises, to be recovered by action in any
court having jurisdiction in respect of claims for such an
amount.
146. Restrictions on and relief
against forfeiture of leases and underleases.- (1) A right of re-entry or
forfeiture under any proviso or stipulation in a lease for a breach of any
covenant or condition in the
lease shall not be enforceable, by action or
otherwise, unless and until the lessor serves on the lessee a notice-
(a) specifying the particular breach complained of; and
(b) if the breach is capable of remedy, requiring the lessee to remedy the breach; and
(c) in any case, requiring the lessee to make compensation in money for the breach;
and the lessee fails, within a
reasonable time thereafter, to remedy the breach, if it is capable of remedy,
and to make reasonable
compensation in money, to the satisfaction of the lessor,
for the breach.
(2) Where a lessor is proceeding, by action or otherwise,
to enforce such a right of re-entry or forfeiture, the lessee may, in the
lessor's action, if any, or in any action brought by himself, apply to the court
for relief; and the court may grant or refuse relief,
as the court, having
regard to the proceedings and conduct of the parties under the foregoing
provisions of this section, and to
all the other circumstances, thinks fit; and
in case of relief may grant it on such terms, if any, as to costs, expenses,
damages,
compensation, penalty, or otherwise, including the granting of an
injunction to restrain any like breach in the future, as the court,
in the
circumstances of each case, thinks fit.
(3) A lessor shall be entitled to
recover as a debt due to him from a lessee, and in addition to damages (if any),
all reasonable
costs and expenses properly incurred by the lessor in the
employment of a solicitor and surveyor or valuer, or otherwise, in reference
to
any breach giving rise to a right of re-entry or forfeiture which, at the
request of the lessee, is waived by the lessor, or from
which the lessee is
relieved, under the provisions of this Act.
(4) Where a lessor is
proceeding by action or otherwise to enforce a right of re-entry or forfeiture
under any covenant, proviso,
or stipulation in a lease, or for non-payment of
rent, the court may, on application by any person claiming as underlessee any or
interest in the property comprised in the lease or any part thereof, either in
the lessor's action (if any) or in any action brought
by such person for that
purpose, make an order vesting, for the whole term of the lease or any less
term, the property comprised
in the lease or any part thereof in any person
entitled as underlessee to any estate upon or interest in such property upon
such
conditions as to execution of any deed or other document, payment of rent,
costs, expenses, damages, compensation, giving security,
or otherwise, as the
court in the circumstances of each case may think fit, but in no case shall any
such underlessee be entitled
to require a lease to be granted to him for any
longer than he had under his original sublease.
(5) For the purposes of
this section -
(a) "Lease" includes an original or derivative underlease, also an agreement for a lease where the lessee has become entitled to have his lease granted; also a grant at fee farm rent, or securing a rent by condition;
(b) "Lessee" includes an original or derivative underlessee, and the persons deriving title under a lessee; also a grantee under any such grant as aforesaid and the persons deriving title under him;
(c) "Lessor" includes an original or derivative underlessor, and the persons deriving title under a lessor; also a person making such grant as aforesaid and the persons deriving title under him;
(d) "Underlease" includes an agreement for an underlease where the underlessee has become entitled to have his underlease granted;
(e) "Underlessee" includes any person deriving title under an underlessee.
(6) This
section applies although the proviso or stipulation under which the right of
re-entry or forfeiture accrues is inserted in
the lease in pursuance of the
directions of any Act of Parliament.
(7) For the purposes of this section
a lease limited to continue as long only as the lessee abstains from committing
a breach of covenant
shall be and take effect as a lease to continue for any
longer term for which it could subsist, but determinable by a proviso for
re-entry on such a breach.
(8) This section does not extend-
(i) To a covenant or condition against assigning, underletting, parting with the possession, or disposing of the land leased where the breach occurred before the commencement of this Act; or
(ii) In the case of a mining lease, to a covenant or condition for allowing the lessor to have access to or inspect books, accounts records, weighing machines, or other things, or to enter or inspect the mine or the workings thereof.
(9) This section does not apply to a
condition for forfeiture on the bankruptcy of the lessee or on taking in
execution of the lessee's
interest if contained in a lease of -
(a) Agricultural or pastoral land;
(b) Mines or minerals;
(c) A house used or intended to be used as a public-house or beershop;
(d) A house let as a dwelling-house, with the use of any furniture, books, works of art, or other chattels not being in the nature of fixtures;
(e) Any property with respect to which the personal qualifications of the tenant are of importance for the preservation of the value or character of the property, or on the ground of neighbourhood to the lessor, or to any person holding under him.
(10) Where a condition of forfeiture on
the bankruptcy of the lessee or on taking in execution of the lessee's interest
is contained
in any lease, other than a lease of any of the classes mentioned in
the last subsection, then -
(a) if the lessee's interest is sold within one year from the bankruptcy or taking in execution, this section applies to the forfeiture condition aforesaid;
(b) if the lessee's interest is not sold before the expiration of that year, this section only applies to the forfeiture condition aforesaid during the first year from the date of the bankruptcy or taking in execution.
(11) This
section does not, save as otherwise mentioned, affect the law relating to
re-entry or forfeiture or relief in case of non-payment
of rent.
(12)
This section has effect notwithstanding any stipulation to the
contrary.
147. Relief against notice to
effect decorative repairs.- (1) After a notice is served on a lessee
relating to the internal decorative repairs to a house or other building, he may
apply
to the court for relief, and if, having regard to all the circumstances of
the case (including in particular the length of the lessee's
term or interest
remaining unexpired), the court is satisfied that the notice is unreasonable, it
may, by order, wholly or partially
relieve the lessee from liability for such
repairs.
(2) This section does not apply:-
(i) where the liability arises under an express covenant or agreement to put the property in a decorative state of repair and the covenant or agreement has never been performed;
(ii) to any matter necessary or proper -
(a) for putting or keeping the property in a sanitary condition, or
(b) for the maintenance or preservation of the structure;
(iii) to any statutory liability to keep a house in all respects reasonably fit for human habitation;
(iv) to any covenant or stipulation to yield up the house or other building in a specified state of repair at the end of the term.
(3) In this section "lease" includes an
underlease and an agreement for a lease, and "lessee" has a corresponding
meaning and includes
any person liable to effect the repairs.
(4) This
section applies whether the notice is served before or after the commencement of
this Act, and has effect notwithstanding
any stipulation to the
contrary.
148. Waiver of a covenant in
a lease.- (1) Where any actual waiver by a lessor or the persons deriving
title under him of the benefit of any covenant or condition in any
lease is
proved to have taken place in any particular instance, such waiver shall not be
deemed to extend to any instance, or to
any breach of covenant or condition save
that to which such waiver specially relates, nor operate as a general waiver of
the benefit
of any such covenant or condition.
(2) This section applies
unless a contrary intention appears and extends to waivers effected after the
twenty-third day of July, eighteen
hundred and
sixty.
149. Abolition of interesse
termini, and as to reversionary leases and leases for lives.- (1) The
doctrine of interesse termini is hereby abolished.
(2) As from the
commencement of this Act all terms of years absolute shall, whether the interest
is created before or after such commencement,
be capable of taking effect at law
or in equity, according to the estate interest or powers of the grantor, from
the date fixed for
commencement of the term, without actual entry.
(3) A
term, at a rent or granted in consideration of a fine, limited after the
commencement of this Act to take effect more than twenty-one
years from the date
of the instrument purporting to create it, shall be void, and any contract made
after such commencement to create
such a term shall likewise be void; but this
subsection does not apply to any term taking effect in equity under a
settlement, or
created out of an equitable interest under a settlement, or under
an equitable power for mortgage, indemnity or other like purposes.
(4)
Nothing in subsections (1) and (2) of this section prejudicially affects the
right of any person to recover any rent or to enforce
or take advantage of any
covenants or conditions, or, as respects terms or interests created before the
commencement of this Act,
operates to vary any statutory or other obligations
imposed in respect of such terms or interests.
(5) Nothing in this Act
affects the rule of law that a legal term, whether or not being a mortgage term,
may be created to take effect
in reversion expectant on a longer term, which
rule is hereby confirmed.
(6) Any lease or underlease, at a rent, or in
consideration of a fine, for life or lives or for any term of years determinable
with
life or lives, or on the marriage of the lessee, or any contract therefore,
made before or after the commencement of this Act, or
created by virtue of Part
V of the Law of Property Act, 1922, shall take effect as a lease, underlease or
contract therefore, for
a term of ninety years determinable after the death or
marriage (as the case may be) of the original lessee, or of the survivor of
the
original lessees, by at least one month's notice in writing given to determine
the same on one of the quarter days applicable
to the tenancy, either by the
lessor or the persons deriving title under him, to the person entitled to the
leasehold interest, or
if no such person is in existence by affixing the same to
the premises, or by the lessee or other persons in whom the leasehold interest
is vested to the lessor or the persons deriving title under him:
Provided
that -
(a) this subsection shall not apply to any term taking effect in equity under a settlement or created out of an equitable interest under a settlement for mortgage, indemnity, or other like purposes;
(b) the person in whom the leasehold interest is vested by virtue of Part V of the Law of Property Act, 1922, shall, for the purposes of this subsection, be deemed an original lessee;
(c) if the lease, underlease, or contract therefore is made determinable on the dropping of the lives of persons other than or besides the lessees, then the notice shall be capable of being served after the death of any person or of the survivor of any persons (whether or not including the lessees) on the cesser of whose life or lives the lease, underlease, or contract is made determinable, instead of after the death of the original lessee or of the survivor of the original lessees;
(d) if there are no quarter days specially applicable to the tenancy, notice may be given to determine the tenancy on one of the usual quarter days.
150.
Surrender of a lease, without prejudice to underleases with a view to the grant
of a new lease.- (1) A lease may be surrendered with a view to the
acceptance of a new lease in place thereof, without a surrender of any
underlease
derived thereout.
(2) A new lease may be granted and accepted,
in place of any lease so surrendered, without any such surrender of an
underlease as
aforesaid, and the new lease operates as if all under-leases
derived out of the surrendered lease had been surrendered before the
surrender
of that lease was effected.
(3) The lessee under the new lease and any
person deriving title under him is entitled to the same rights and remedies in
respect
of the rent reserved by and the covenants, agreements and conditions
contained in any underlease as if the original lease had not
been surrendered
but was or remained vested in him.
(4) Each underlessee and any person
deriving title under him is entitled to hold and enjoy the land comprised in his
underlease (subject
to the payment of any rent reserved by and to the observance
of the covenants agreements and conditions contained in the underlease)
as if
the lease out of which the underlease was derived had not been
surrendered.
(5) The lessor granting the new lease and any person
deriving title under him is entitled to the same remedies, by distress or entry
in and upon the land comprised in any such underlease for rent reserved by or
for breach of any covenant, agreement or condition
contained in the new lease
(so far only as the rents reserved by or the covenants, agreements or conditions
contained in the new
lease do not exceed or impose greater burdens than those
reserved by or contained in the original lease out of which the underlease
is
derived) as he would have had -
(a) If the original lease had remained on foot; or
(b) If a new underlease derived out of the new lease had been granted to the under-lessee or a person deriving title under him;
as the case may
require.
(6) This section does not affect the powers of the court to give
relief against forfeiture.
151.
Provision as to attornments by tenants.- (1) Where land is subject to a
lease -
(a) the conveyance of a reversion in the land expectant on the determination of the lease; or
(b) the creation or conveyance of a rentcharge to issue or issuing out of the land;
shall be valid without any attornment of the
lessee:
Nothing in this subsection -
(i) affects the validity of any payment of rent by the lessee to the person making the conveyance or grant before notice of the conveyance or grant is given to him by the person entitled thereunder; or
(ii) renders the lessee liable for any breach of covenant to pay rent, on account of his failure to pay rent to the person entitled under the conveyance or grant before such notice is given to the lessee.
(2) An attornment by the lessee in
respect of any land to a person claiming to be entitled to the interest in the
land of the lessor,
if made without the consent of the lessor, shall be
void.
This subsection does not apply to an attornment-
(a) made pursuant to a judgment of a court of competent jurisdiction; or
(b) to a mortgagee, by a lessee holding under a lease from the mortgagor where the right of redemption is barred; or
(c) to any other person rightfully deriving title under the lessor.
152.
Leases invalidated by reason of non-compliance with terms of powers under which
they are granted.- (1) Where in the intended exercise of any power of
leasing, whether conferred by an Act of Parliament or any other instrument, a
lease (in this section referred to as an invalid lease) is granted, which by
reason of any failure to comply with the terms of the
power is invalid,
then-
(a) as against the person entitled after the determination of the interest of the grantor to the reversion; or
(b) as against any other person who, subject to any lease properly granted under the power, would have been entitled to the land comprised in the lease;
the lease,
if it was made in good faith, and the lessee has entered thereunder, shall take
effect in equity as a contract for the
grant, at the request of the lessee, of a
valid lease under the power, of like effect as the invalid lease, subject to
such variations
as may be necessary in order to comply with the terms of the
power:
Provided that a lessee under an invalid lease shall not, by virtue
of any such implied contract, be entitled to obtain a variation
of the lease if
the other persons who would have been bound by the contract are willing and able
to confirm the lease without variation.
(2) Where a lease granted in the
intended exercise of such a power is invalid by reason of the grantor not having
power to grant the
lease at the date thereof, but the grantor's interest in the
land comprised therein continues after the time when he might, in the
exercise
of the power, have properly granted a lease in the like terms, the lease shall
take effect as a valid lease in like manner
as if it had been granted at that
time.
(3) Where during the continuance of the possession taken under an
invalid lease the person for the time being entitled, subject to
such
possession, to the land comprised therein or to the rents and profits thereof,
is able to confirm the lease without variation,
the lessee, or other person who
would have been bound by the lease had it been valid, shall, at the request of
the person so able
to confirm the lease, be bound to accept a confirmation
thereof, and thereupon the lease shall have effect and be deemed to have
had
effect as a valid lease from the grant thereof.
Confirmation under this
subsection may be by a memorandum in writing signed by or on behalf of the
persons respectively confirming
and accepting the confirmation of the
lease.
(4) Where a receipt or a memorandum in writing confirming an
invalid lease is, upon or before the acceptance of the rent thereunder,
signed
by or on behalf of the person accepting the rent, that acceptance shall, as
against that person, be deemed to be a confirmation
of the lease.
(5) The
foregoing provisions of this section do not affect prejudicially -
(a) any right of action or other right or remedy to which, but for those provisions or any enactment replaced by those provisions, the lessee named in an invalid lease would or might have been entitled under any covenant on the part of the grantor for title or quiet enjoyment contained therein or implied thereby; or
(b) any right of re-entry or other right or remedy to which, but for those provisions or any enactment replaced thereby, the grantor or other person for the time being entitled to the reversion expectant on the termination of the lease, would or might have been entitled by reason of any breach of the covenants, conditions or provisions contained in the lease and binding on the lessee.
(6) Where a valid power of leasing is
vested in or may be exercised by a person who grants a lease which, by reason of
the determination
of the interest of the grantor or otherwise, cannot have
effect and continuance according to the terms thereof independently of the
power, the lease shall for the purposes of this section be deemed to have been
granted in the intended exercise of the power although
the power is not referred
to in the lease.
(7) This section does not apply to a lease of land held
on charitable, ecclesiastical or public trusts.
(8) This section takes
effect without prejudice to the provision in this Act for the grant of leases in
the name and on behalf of
the estate owner of the land
affected.
153. Enlargement of residue
of long terms into fee simple estates.- (1) Where a residue unexpired of
not less than two hundred years of a term, which, as originally created, was for
not less than
three hundred years, is subsisting in land, whether being the
whole land originally comprised in the term, or part only thereof,-
(a) without any trust or right of redemption affecting the term in favour of the freeholder, or other person entitled in reversion expectant on the term; and
(b) without any rent, or with merely a peppercorn rent or other rent having no money value, incident to the reversion, or having had a rent, not being merely a peppercorn rent or other rent having no money value, originally so incident, which subsequently has been released or has become barred by lapse of time, or has in any other way ceased to be payable; the term may be enlarged into a fee simple in the manner, and subject to the restrictions in this section provided.
(2)
This section applies to and includes every such term as aforesaid whenever
created, whether or not having the freehold as the
immediate reversion thereon;
but does not apply to-
(i) Any term liable to be determined by re-entry for condition broken; or
(ii) Any term created by subdemise out of a superior term, itself incapable of being enlarged into fee simple.
(3) This
section extends to mortgage terms, where the right of redemption is
barred.
(4) A rent not exceeding the yearly sum of one pound which has
not been collected or paid for a continuous period of twenty years
or upwards
shall, for the purposes of this section, be deemed to have ceased to be
payable:
Provided that, of the said period, at least five years must have
elapsed after the commencement of this Act.
(5) Where a rent incident to
a reversion expectant on a term to which this section applies is deemed to have
ceased to be payable
for the purposes aforesaid, no claim for such rent or for
any arrears thereof shall be capable of being enforced.
(6) Each of the
following persons, namely -
(i) Any person beneficially entitled in right of the term, whether subject to any incumbrance or not, to possession of any land comprised in the term, and, in the case of a married woman without the concurrence of her husband, whether or not she is entitled for her separate use or as her separate property, or is subject to a restrain on anticipation;
(ii) Any person being in receipt of income as trustee, in right of the term, or having the term vested in him in trust for sale, whether subject to any incumbrance or not;
(iii) Any person in whom, as personal representative of any deceased person, the term is vested, whether subject to any incumbrance or not;
shall, so far as regards the land to which he
is entitled, or in which he is interested in right of the term, in any such
character
as aforesaid, have power by deed to declare to the effect that, from
and after the execution of the deed, the term shall be enlarged
into a fee
simple.
(7) Thereupon, by virtue of the deed and of this Act, the term
shall become and be enlarged accordingly, and the person in whom the
term was
previously vested shall acquire and have in the land a fee simple instead of the
term.
(8) The estate in fee simple so acquired by enlargement shall be
subject to all the same trusts, powers, executory limitations over,
rights, and
equities, and to all the same covenants and provisions relating to user and
enjoyment, and to all the same obligations
of every kind, as the term would have
been subject to if it had not been so enlarged.
(9) But where -
(a) any land so held for the residue of a term has been settled in trust by reference to other land, being freehold land, so as to go along with that other land, or, in the case of settlements coming into operation before the commencement of this Act, so as to go along with that other land as far as the law permits; and
(b) at the time of enlargement, the ultimate beneficial interest in the term, whether subject to any subsisting particular estate or not, has not become absolutely and indefeasibly vested in any person, free from charges or powers of charging created by a settlement;
the estate in fee simple acquired as
aforesaid shall, without prejudice to any conveyance for value previously made
by a person having
a contingent or defeasible interest in the term, be liable to
be, and shall be, conveyed by means of a subsidiary vesting instrument
and
settled in like manner as the other land, being freehold land, aforesaid, and
until so conveyed and settled shall devolve beneficially
as if it had been so
conveyed and settled.
(10) The estate in fee simple so acquired shall,
whether the term was originally created without impeachment of waste or not,
include
the fee simple in all mines and minerals which at the time of
enlargement have not been severed in right or in fact, or have not
been severed
or reserved by an inclosure Act or
award.
154. Application of Part V. to
existing leases.- This Part of this Act, except where otherwise expressly
provided, applies to leases created before or after the commencement of
this
Act, and "lease" includes an under-lease or other tenancy.
____________
PART VI.
POWERS.
155. Release of powers
simply collateral.- A person to whom any power, whether coupled with an
interest or not, is given may by deed release, or contract not to exercise, the
power.
156. Disclaimer of
power.- (1) A person to whom any power, whether coupled with an interest
or not, is given may by deed disclaim the power, and, after disclaimer,
shall
not be capable of exercising or joining in the exercise of the power.
(2)
On such disclaimer, the power may be exercised by the other person or persons or
the survivor or survivors of the other persons,
to whom the power is given,
unless the contrary is expressed in the instrument creating the
power.
157. Protection of purchasers
claiming under certain void appointments.- (1) An instrument purporting
to exercise a power of appointment over property, which, in default of and
subject to any appointment,
is held in trust for a class or number of persons of
whom the appointee is one, shall not (save as hereinafter provided) be void
on
the ground of fraud on the power as against a purchaser in good
faith:
Provided that, if the interest appointed exceeds, in amount or
value, the interest in such property to which immediately before the
execution
of the instrument the appointee was presumptively entitled under the trust in
default of appointment, having regard to
any advances made in his favour and to
any hotchpot provision, the protection afforded by this section to a purchaser
shall not extend
to such excess.
(2) In this section "a purchaser in good
faith" means a person dealing with an appointee of the age of not less than
twenty-five years
for valuable consideration in money or money's worth, and
without notice of the fraud, or of any circumstances from which, if reasonable
inquiries had been made, the fraud might have been discovered.
(3)
Persons deriving title under any purchaser entitled to the benefit of this
section shall be entitled to the like benefit.
(4) This section applies
only to dealings effected after the commencement of this
Act.
158. Validation of appointments
where objects are excluded or take illusory shares.- (1) No appointment
made in exercise of any power to appoint any property among two or more objects
shall be invalid on the ground
that -
(a) an unsubstantial, illusory, or nominal share only is appointed to or left unappointed to devolve upon any one or more of the objects of the power; or
(b) any object of the power is thereby altogether excluded;
but every such
appointment shall be valid notwithstanding that any one or more of the objects
is not thereby, or in default of appointment,
to take any share in the
property.
(2) This section does not affect any provision in the
instrument creating the power which declares the amount of any share from which
any object of the power is not to be excluded.
(3) This section applies
to appointments made before or after the commencement of this
Act.
159. Execution of powers not
testamentary.- (1) A deed executed in the presence of and attested by two
or more witnesses (in the manner in which deeds are ordinarily executed
and
attested) is so far as respects the execution and attestation thereof, a valid
execution of a power of appointment by deed or
by any instrument in writing, not
testamentary, notwithstanding that it is expressly required that a deed or
instrument in writing,
made in exercise of the power, is to be executed or
attested with some additional or other form of execution or attestation or
solemnity.
(2) This section does not operate to defeat any direction in
the instrument creating the power that-
(a) the consent of any particular person is to be necessary to a valid execution;
(b) in order to give validity to any appointment, any act is to be performed having no relation to the mode of executing and attesting the instrument.
(3)
This section does not prevent the donee of a power from executing it in
accordance with the power by writing, or otherwise than
by an instrument
executed and attested as a deed; and where a power is so executed this section
does not apply.
(4) This section applies to appointments by deed made
after the thirteenth day of August, eighteen hundred and
fifty-nine.
160. Application of Part
VI. to existing powers.- This Part of this Act applies to powers created
or arising either before or after the commencement of this Act.
______________
PART VII.
PERPETUITIES AND ACCUMULATIONS.
Perpetuities.
161. Abolition of the
double possibility rule.- (1) The rule of law prohibiting the limitation,
after a life interest to an unborn person, of an interest in land to the unborn
child
or other issue of an unborn person is hereby abolished, but without
prejudice to any other rule relating to perpetuities.
(2) This section
only applies to limitations or trusts created by an instrument coming into
operation after the commencement of this
Act.
162. Restrictions on the
perpetuity rule.- (1) For removing doubts, it is hereby declared that the
rule of law relating to perpetuities does not apply and shall be deemed never
to
have applied -
(a) To any power to distrain on or to take possession of land or the income thereof given by way of indemnity against a rent, whether charged upon or payable in respect of any part of that land or not; or
(b) To any rentcharge created only as an indemnity against another rentcharge, although the indemnity rentcharge may only arise or become payable on breach of a condition or stipulation; or
(c) To any power, whether exercisable on breach of a condition or stipulation or not, to retain or withhold payment of any instalment of a rentcharge as an indemnity against another rentcharge; or
(d) To any grant, exception, or reservation of any right of entry on, or user of, the surface of land or of any easements, rights, or privileges over or under land for the purpose of -
(i) winning, working, inspecting, measuring, converting, manufacturing, carrying away, and disposing of mines and minerals;
(ii) inspecting, grubbing up, felling and carrying away timber and other trees, and the tops and lops thereof;
(iii) executing repairs, alterations, or additions to any adjoining land, or the buildings and erections thereon;
(iv) constructing, laying down, altering, repairing, renewing, cleansing, and maintaining sewers, watercourses, cesspools, gutters, drains, water-pipes, gas-pipes, electric wires or cables or other like works.
(2) This section applies
to instruments coming into operation before or after the commencement of this
Act.
163. Validation of certain gifts
void for remoteness.- (1) Where in a will, settlement or other instrument
the absolute vesting either of capital or income of property, or the
ascertainment
of a beneficiary or class of beneficiaries, is made to depend on
the attainment by the beneficiary or members of the class of an
age exceeding
twenty-one years, and thereby the gift to that beneficiary or class or any
member thereof, or any gift over, remainder,
executory limitation, or trust
arising on the total or partial failure of the original gift, is, or but for
this section would be,
rendered void for remoteness, the will, settlement, or
other instrument shall take effect for the purposes of such gift, gift over,
remainder, executory limitation, or trust as if the absolute vesting or
ascertainment aforesaid had been made to depend on the beneficiary
or member of
the class attaining the age of twenty-one years, and that age shall be
substituted for the age stated in the will, settlement,
or other
instrument.
(2) This section applies to any instrument executed after the
commencement of this Act and to any testamentary appointment (whether
made in
exercise of a general or special power), devise, or bequest contained in the
will of a person dying after such commencement,
whether the will is made before
or after such commencement.
(3) This section applies without prejudice to
any provision whereby the absolute vesting or ascertainment is also made to
depend on
the marriage of any person, or any other event which may occur before
the age stated in the will, settlement, or other instrument
is attained.
Accumulations.
164. General
restrictions on accumulation of income.- (1) No person may by any
instrument or otherwise settle or dispose of any property in such manner that
the income thereof shall, save
as hereinafter mentioned, be wholly or partially
accumulated for any longer period than one of the following, namely:-
(a) the life of the grantor or settlor; or
(b) a term of twenty-one years from the death of the grantor, settlor or testator; or
(c) the duration of the minority or respective minorities of any person or persons living or en ventre sa mere at the death of the grantor, settlor or testator; or
(d) the duration of the minority or respective minorities only of any person or persons who under the limitations of the instrument directing the accumulations would, for the time being, if of full age, be entitled to the income directed to be accumulated.
In every case where any
accumulation is directed otherwise than as aforesaid, the direction shall (save
as hereinafter mentioned)
be void; and the income of the property directed to be
accumulated shall, so long as the same is directed to be accumulated contrary
to
this section, go to and be received by the person or persons who would have been
entitled thereto if such accumulation had not
been directed.
(2) This
section does not extend to any provision -
(i) for payment of the debts of any grantor, settlor, testator or other person;
(ii) for raising portions for -
(a) any child, children or remoter issue of any grantor, settlor or testator; or
(b) any child, children or remoter issue of a person taking any interest, under any settlement or other disposition directing the accumulations or to whom any interest is thereby limited;
(iii) respecting the accumulation of the produce of timber or wood;
and accordingly such provisions may be
made as if no statutory restrictions on accumulation of income had been
imposed.
(3) The restrictions imposed by this section apply to
instruments made on or after the twenty-eighth day of July, eighteen hundred,
but in the case of wills only where the testator was living and of testamentary
capacity after the end of one year from that
date.
165. Qualification of
restrictions on accumulation.- Where accumulations of surplus income are
made during a minority under any statutory power or under the general law, the
period for
which such accumulations are made is not (whether the trust was
created or the accumulations were made before or after the commencement
of this
Act) to be taken into account in determining the periods for which accumulations
are permitted to be made by the last preceding
section, and accordingly an
express trust for accumulation for any other permitted period shall not be
deemed to have been invalidated
or become invalid, by reason of accumulations
also having been made as aforesaid during such
minority.
166. Restriction on
accumulation for the purchase of land.- (1) No person may settle or
dispose of any property in such manner that the income thereof shall be wholly
or partially accumulated
for the purchase of land only, for any longer period
than the duration of the minority or respective minorities of any person or
persons who, under the limitations of the instrument directing the accumulation,
would for the time being, if of full age, be entitled
to the income so directed
to be accumulated.
(2) This section does not, nor do the enactments which
it replaces, apply to accumulations to be held as capital money for the purposes
of the Settled Land Act, 1925, or the enactments replaced by that Act, whether
or not the accumulations are primarily liable to be
laid out in the purchase of
land.
(3) This section applies to settlements and dispositions made after
the twenty-seventh day of June eighteen hundred and ninety-two.
_____________
PART VIII.
MARRIED WOMEN AND LUNATICS.
Married Women.
167. Abolition of
acknowledgments by married women.- (1) Every disposition (including a
disclaimer) of real or personal property or any interest therein which a married
woman is under
the Fines and Recoveries Act, 1833, or the Married Women's
Reversionary Interests Act, 1857, or any other enactment authorised to
make by
deed acknowledged in the manner prescribed by any such Act as amended by any
subsequent enactment, shall, from the date of
execution of the deed of
disposition, be effectual if made by her with the concurrence of her husband,
but without acknowledgment.
(2) The separate examination of a married
woman shall not be necessary as a preliminary to any order of the court
directing payment
or transfer of any money or property to her or in accordance
with her directions.
(3) Where the court, under any statutory power,
dispenses in any case with the concurrence of the husband, and the court is
satisfied
that the wife is entitled for her separate use of the property to be
dealt with, the court may by the order declare that the disposition
shall have
the same effect as if the husband had concurred therein and had disposed of his
rights and interests, and the disposition
by the wife alone shall take effect
accordingly without acknowledgment.
(4) This section applies only to
deeds executed and orders made after the commencement of this Act, and does not
render necessary
the concurrence of a husband in any deed where such concurrence
would not have been requisite if this section had not been
passed.
168. Disclaimer by married
women.- (1) A married woman has power by deed to disclaim any estate or
interest in land with or without the concurrence of her husband as
the case may
require.
(2) A husband is not necessary party to any disclaimer by his
wife where-
(a) the wife, there were no disclaimer, would have been entitled to the property for her separate use or as her separate property; or
(b) the property consists of a trust estate.
169. Power
for court to bind interest of married women.- Where a married woman is
restrained from anticipation or from alienation in respect of any property or
any interest in property belonging
to her, or is by law unable to dispose of or
bind such property or her interest therein, including a reversionary interest
arising
under her marriage settlement, the court may, if it thinks fit, where it
appears to the court to be for her benefit, by judgment
or order, with her
consent, bind her interest in such property.
170. Acquisitions and dispositions of
trust estates by married women.- (1) A married woman is able to acquire
as well from her husband as from any other person, and hold, any interest in
property real
or personal either solely or jointly with any other person
(whether or not including her husband) as a trustee or personal representative,
in like manner as if she were a feme sole; and no interest in such property
shall vest or be deemed to have vested in the husband
by reason only of the
acquisition by his wife.
(2) A married woman is able, without her
husband, to dispose of, or to join in disposing of, any interest in real or
personal property
held by her solely or jointly with any other person (whether
or not including her husband) as trustee or personal representative,
in like
manner as if she were a feme sole.
(3) This section applies to a woman
married after the thirty-first day of December, eighteen hundred and eighty-two,
and to a woman
married before the first day of January, eighteen hundred and
eighty-three, who became a trustee or personal representative on or
after that
date.
(4) This section operates to render valid and confirm all such
acquisitions and dispositions made after the thirty-first day of December,
eighteen hundred and eighty-two, whether before or after the commencement of
this Act, but where any title or right shall prevail
over any title or right
which would otherwise be rendered valid by this section or any enactment which
it replaces.
(5) This section does not prejudicially affect any
beneficial interest of the husband of any such woman.
Lunatics.
171. Power for court to
settle the beneficial interests of a lunatic or defective.- (1) The court
may direct a settlement to be made of the property of a lunatic or defective, or
any part thereof or any interest therein,
on such trusts and subject to such
powers and provisions as the court may deem expedient, and in particular may
give such directions-
(a) where the lunatic or defective is the holder of a title of honour, and the property would not devolve with such title either under a testamentary disposition executed by him, or on his intestacy if he died intestate; or
(b) where the property has been acquired under a settlement, a will or an intestacy, or represents property so acquired; or
(c) where by reason of any change in the law of intestacy or of any change in circumstances since the execution by the lunatic or defective of a testamentary disposition, or of any absence of information at the time of such execution, or on account of the former management of the property or the expenditure of money in improving or maintaining the same or for any other special reason the court is satisfied that any person might suffer an injustice if the property were allowed to devolve as undisposed of on the death intestate of the lunatic or defective or under any testamentary disposition executed by him.
(2)
The court may direct the committee or receiver of the lunatic or defective, or
any trustee for him, to execute any vesting instrument,
trust instrument,
conveyance (including a disentailing assurance) or other instrument, and to do
any other thing which may be required
for giving effect to the settlement, in
the name and on behalf of the lunatic or defective, and, for that purpose, may
make a vesting
order or appoint a person to convey; and any settlement approved
by the court shall be as effectual and binding on all persons interested
as if
the same had been made by the lunatic or defective while of full
capacity.
(3) This section applies whether or not the lunatic or
defective has executed a testamentary disposition and notwithstanding that
it is
not known whether he has executed such a disposition or not, but does not apply
when he is an infant.
(4) Any person who under the Administration of
Estates Act, 1925, has, or if that Act, or any enactment which it replaces, had
not
been passed would have had, a spes successionis (whether under any
testamentary disposition which is known to exist or in the event
of the
intestacy of the lunatic or defective) or an interest in the property of the
lunatic or defective or in any part thereof,
as well as the committee or
receiver and any other person who may be authorised by rules made under this
section, shall have power
to apply to the court for an order under this
section.
(5) Subject to making due provision for the maintenance of the
lunatic or defective in accordance with his station in life, whether
out of the
capital or income of the property settled or other property or partly in one way
and partly in another, and to providing,
by means of a power of appointment or
revocation, or otherwise, for the possibility of the lunatic or defective
recovering full capacity,
the court may, in making any order under this section,
have regard to-
(i) the manner in which the property has been settled or dealt with on former occasions;
(ii) in the case of land, the welfare of the labourers and other persons employed thereon, and the expediency of settling personal estate to devolve therewith;
(iii) the continuation or provision of any pensions, and the application of any part of the income for charitable purposes;
(iv) the provisions of any testamentary disposition of the lunatic or defective;
(v) the expediency of providing for-
(a) jointures, portions, and other annual or capital charges and powers to create the same;
(b) discretionary trusts, trusts for effecting or maintaining policies of insurance, powers of appointment, sinking funds for making good loss by fire (in lieu of, or in addition to, insurance) or for any other purpose;
(c) the extension of any statutory powers of investment, management or otherwise;
(d) the manner in which any costs are to be raised and paid, whether out of the settled property or otherwise;
(e) any other matter or thing which, having regard to the nature of the settlement, or the property to be settled, and the management, development, and enjoyment thereof, and to the persons who are to take, either successively or otherwise, the court may consider material.
(6) In this section,
"testamentary disposition" means an instrument executed by the lunatic or
defective while of full testamentary
capacity, which, if unrevoked, might, on
his death, be proved as a will or codicil; and the court may act on such
evidence as to
the existence or absence of a testamentary disposition as it
thinks fit.
(7) At any time before the death of the lunatic or defective,
the court may, as respects any property remaining subject to the trusts
of a
settlement made under this section, on being satisfied that any material fact
was not disclosed to the court when the settlement
was made, or on account of
any substantial change in circumstances, by order vary the settlement in such
manner as it thinks fit,
and give any consequential directions.
(8) For
the purposes of this section, "the court" means the Judge in Lunacy, or, in such
cases as may be prescribed by rules of court,
the High Court.
(9) Rules
in lunacy or, as respects cases within the jurisdiction of the High Court, rules
of court, may be made for giving effect
to the provisions of this section, and
in particular for compelling information to be furnished respecting, and
production of, testamentary
dispositions, and the lodgement thereof in court,
for prescribing what notices, if any, of the proceedings are to be served, for
dispensing with such notices and, when necessary, for making representation
orders.
__________
PART IX.
VOIDABLE DISPOSITIONS.
172. Voluntary
conveyances to defraud creditors voidable.- (1) Save as provided in this
section, every conveyance of property, made whether before or after the
commencement of this Act, with
intent to defraud creditors, shall be voidable,
at the instance of any person thereby prejudiced.
(2) This section does
not affect the operation of a disentailing assurance, or the law of bankruptcy
for the time being in force.
(3) This section does not extend to any
estate or interest in property conveyed for valuable consideration and in good
faith or upon
good consideration and in good faith to any person not having, at
the time of the conveyance, notice of the intent to defraud
creditors.
173. Voluntary disposition
of land how far voidable as against purchasers.- (1) Every voluntary
disposition of land made with intent to defraud a subsequent purchaser is
voidable at the instance of that purchaser.
(2) For the purposes of this
section, no voluntary disposition, whenever made, shall be deemed to have been
made with intent to defraud
by reason only that a subsequent conveyance for
valuable consideration was made, if such subsequent conveyance was made after
the
twenty-eighth day of June, eighteen hundred and
ninety-three.
174. Acquisitions of
reversions at an under value.- (1) No acquisition made in good faith,
without fraud or unfair dealing, of any reversionary interest in real or
personal property,
for money or money's worth, shall be liable to be opened or
set aside merely on the ground of under value.
In this subsection
"reversionary interest" includes an expectancy or possibility.
(2) This
section does not affect the jurisdiction of the court to set aside or modify
unconscionable bargains.
__________
PART X.
WILLS.
175. Contingent and
future testamentary gifts to carry the intermediate income.- (1) A
contingent or future specific devise or bequest of property, whether real or
personal, and a contingent residuary devise of
freehold land, and a specific or
residuary devise of freehold land to trustees upon trust for persons whose
interests are contingent
or executory shall, subject to the statutory provisions
relating to accumulations, carry the intermediate income of that property
from
the death of the testator, except so far as such income, or any part thereof,
may be otherwise expressly disposed of.
(2) This section applies only to
wills coming into operation after the commencement of this
Act.
176. Power for tenant in tail in
possession to dispose of property by specific devise or bequest.- (1) A
tenant in tail of full age shall have power to dispose by will, by means of a
devise or bequest referring specifically either
to the property or to the
instrument under which it was acquired or to entailed property generally
-
(a) of all property of which he is tenant in tail in possession at his death; and
(b) of money (including the proceeds of property directed to be sold) subject to be invested in the purchase of property, of which if it had been so invested he would have been tenant in tail in possession at his death;
in like manner as
if, after barring the entail, he had been tenant in fee simple or absolute owner
thereof for an equitable interest
at his death, but, subject to and in default
of any such disposition by will, such property shall devolve in the same manner
as if
this section had not been passed.
(2) This section applies to
entailed interests authorised to be created by this Act as well as to estates
tail created before the
commencement of this Act, but does not extend to a
tenant in tail who is by statute restrained from barring or defeating his estate
tail, whether the land or property in respect whereof he is so restrained was
purchased with money provided by Parliament in consideration
of public services
or not, or to a tenant in tail after possibility of issue extinct, and does not
render any interest which is not
disposed of by the will of the tenant in tail
liable for his debts or other liabilities.
(3) In this section "tenant in
tail" includes an owner of abase fee in possession who has power to enlarge the
base fee into a fee-simple
without the concurrence of any other
person.
(4) This section only applies to wills executed after the
commencement of this Act, or confirmed or republished by codicil executed
after
such commencement.
177. Wills in
contemplation of marriage.- (1) A will expressed to be made in
contemplation of a marriage shall, notwithstanding anything in section eighteen
of the Wills
Act, 1837, or any other statutory provision or rule of law to the
contrary, not to be revoked by the solemnisation of the marriage
contemplated.
(2) This section only applies to wills made after the
commencement of this Act.
178. Power
for persons having no issue to dispose of real estate by will.- Section
three of the Wills Act, 1837, shall (without prejudice to the rights and
interests of a personal representative) authorise
and to be deemed always to
have authorised any person to dispose of real property or chattels real by will
notwithstanding that by
reason of illegitimacy or otherwise he did not leave an
heir or next of kin surviving him.
179.
Prescribed forms for reference in wills.- The Lord Chancellor may from
time to time prescribe and publish forms to which a testator may refer in his
will, and give directions
as to the manner in which they may be referred to,
but, unless so referred to, such forms shall not be deemed to be incorporated
in
a will.
___________
PART XI.
MISCELLANEOUS.
Miscellaneous.
180. Provisions as to
corporations.- (1) Where either after or before the commencement of this
Act any property or any interest therein is or has been vested in a cooperation
sole (including the Crown), the same shall, unless and until otherwise disposed
of by the corporation, pass and devolve to and vest
in and be deemed always to
have passed and devolved to or vested in the successors from time to time of
such corporation.
(2) Where either after or before the commencement of
this Act there is or has been a vacancy in the office of a corporation sole or
in the office of the head of a corporation aggregate (in any case in which the
vacancy affects the status or powers of the corporation)
at the time when, if
there had been no vacancy, any interest in or charge on property would have been
acquired by the corporation,
such interest shall notwithstanding such vacancy
vest and be deemed to have vested in the successor to such office on his
appointment
as a corporation sole, or in the corporation aggregate (as the case
may be), but without prejudice to the right of such successor,
or of the
corporation aggregate after the appointment of its head officer, to disclaim
that interest or charge.
(3) Any contract or other transaction expressed
or purported to be made with a corporation sole, or any appointment of a
corporation
sole as a custodian or other trustee or as a personal
representative, at a time (either after or before the commencement of this
Act)
when there was a vacancy in the office, shall on the vacancy being filled take
effect and be deemed to have taken effect as
if the vacancy had been filled
before the contract, transaction or appointment was expressed to be made or was
capable of taking
effect, and on the appointment of a successor shall be capable
of being enforced, accepted, disclaimed or renounced by
him.
181. Dissolution of a
corporation.- Where, by reason of the dissolution of a corporation either
before or after the commencement of this Act, a legal estate in any property
has
determined, the court may by order create a corresponding estate and vest the
same in the person who would have been entitled
to the estate which determined
had it remained a subsisting
estate.
182. Protection of solicitor
and trustees adopting Act.- (1) The powers given by this Act to any
person, and the covenants, provisions, stipulations, and words which under this
Act are to
be deemed to be included or implied in any instrument, or are by this
Act made applicable to any contract for sale or other transactions,
are and
shall be deemed in law proper powers, covenants, provisions, stipulations, and
words, to be given by or to be contained in
any such instrument, or to be
adopted in connexion with, or applied to, any such contract or transaction, and
a solicitor shall not
be deemed guilty of neglect or breach of duty, or become
in any way liable, by reason of his omitting, in good faith, in any such
instrument, or in connexion with any such contract or transaction, to negative
the giving, inclusion, implication, or application
of any of those powers,
covenants, provisions, stipulations, or words, or to insert or apply any others
in place thereof, in any
case where the provisions of this Act would allow of
his doing so.
(2) But, save as expressly provided by this Act, nothing in
this Act shall be taken to imply that the insertion in any such instrument,
or
the adoption in connexion with, or the application to, any contract or
transaction, of any further or other powers, covenants,
provisions,
stipulations, or words is improper.
(3) Where the solicitor is acting
for trustees, executors, or other persons in a fiduciary position, those persons
shall also be protected
in like manner.
(4) Where such persons are acting
without a solicitor, they shall also be protected in like
manner.
183. Fraudulent concealment of
documents and falsification of pedigrees.- (1) Any person disposing of
property or any interest therein for money or money's worth to a purchaser, or
the solicitor or other
agent of such person, who-
(a) conceals from the purchaser any instrument or incumbrance material to the title; or
(b) falsifies any pedigree upon which the title may depend in order to induce the purchaser to accept the title offered or produced;
with intent in any of
such cases to defraud, is guilty of a misdemeanour punishable by fine, or by
imprisonment for a term not exceeding
two years, or by both.
(2) Any such
person or his solicitor or agent is also liable to an action for damages by the
purchaser or the persons deriving title
under him for any loss sustained by
reason of-
(a) the concealment from the purchaser any instrument or incumbrance; or
(b) any claim made by a person under such pedigree whose right was concealed by such falsification as aforesaid.
(3) In estimating damages, where
the property or any interest therein is recovered from the purchaser or the
persons deriving title
under him, regard shall be had to any expenditure by him
or them in improvements of any land.
(4) No prosecution for any offence
under this section shall be commenced without the leave of the
Attorney-General.
(5) Before leave to prosecute is granted there shall be
given to the person intended to be prosecuted such notice of the application
for
leave to prosecute as the Attorney-General may
direct.
184. Presumption of
survivorship in regard to claims to property.- In all cases where, after
the commencement of this Act, two or more persons have died in circumstances
rendering it uncertain which
of them survived the other or others, such deaths
shall (subject to any order of the court), for all purposes affecting the title
to property, be presumed to have occurred in order of seniority, and accordingly
the younger shall be deemed to have survived the
elder.
185. Merger.- There is no
merger by operation of law only of any estate the beneficial interest in which
would not be deemed to be merged or extinguished
in
equity.
186. Rights of pre-emption
capable of release.- All statutory and other rights of pre-emption
affecting a legal estate shall be and be deemed always to have been capable of
release,
and unless released shall remain in force as equitable interests
only.
187. Legal easements.- (1)
Where an easement, right or privilege for a legal estate is created, it shall
ensure for the benefit of the land to which it
is intended to be
annexed.
(2) Nothing in this Act affects the right of a person to
acquire, hold or exercise an easement, right or privilege over or in relation
to
land for a legal estate in common with any other person, or the power of
creating or conveying such an easement right or
privilege.
188. Power to direct
division of chattels.- Where any chattels belong to persons in undivided
shares, the persons interested in a moiety or upwards may apply to the court for
an order for division of the chattels or any of them, according to a valuation
or otherwise, and the court may make such order and
give any consequential
directions as it thinks fit.
189.
Indemnities against rents.- (1) A power of distress given by way of
indemnity against a rent or any part thereof payable in respect of any land, or
against
the breach of any covenant or condition in relation to land, is not and
shall not be deemed ever to have been a bill of sale, within
the meaning of the
Bills of Sale Acts, 1878 and 1882, as amended by any subsequent
enactment.
(2) The benefit of all covenants and powers given by way of
indemnity against a rent or any part thereof payable in respect of land,
or
against the breach of any covenant or condition in relation to land, is and
shall be deemed always to have been annexed to the
land to which the indemnity
is intended to relate, and may be enforced by the estate owner for the time
being of the whole or any
part of that land, notwithstanding that the benefit
may not have been expressly apportioned or assigned to him or to any of his
predecessors
in title.
Redemption and Apportionment of Rents, etc.
190. Equitable
apportionment of rents and remedies for non-payment or breach of
covenant.- (1) Where in a conveyance for valuable consideration, other
than a mortgage, or part of land which is affected by a rentcharge,
such
rentcharge or a part thereof is, without the consent of the owner thereof,
expressed to be-
(a) charged exclusively on the land conveyed or any part thereof in exoneration of the land retained or other land; or
(b) charged exclusively on the land retained or any part thereof in exoneration of the land conveyed or other land; or
(c) apportioned between the land conveyed or any part thereof, and the land retained by the grantor or any part thereof;
then, without prejudice to the rights
of the owner of the rentcharge, such charge or apportionment shall be binding as
between the
grantor and the grantee under the conveyance and their respective
successors in title.
(2) Where -
(a) any default is made in payment of the whole or part of a rent charge by the person who, by reason of such charge or apportionment as aforesaid, is liable to pay the same; or
(b) any breach occurs of any of the covenants (other than in the: case of an apportionment the covenant to pay the entire rentcharge) or conditions contained in the deed or other document creating the rent charge, so far as the same relate to the land retained or conveyed, as the case may be;
the owner for
the time being of any other land affected by the entire rent charge who-
(i) pays or is required to pay the whole or part of the rentcharge which ought to have been paid by the defaulter aforesaid; or
(ii) incurs any costs, damages or expenses by reason of the breach of covenant or condition aforesaid;
may enter into and
distrain on the land in respect of which the default or breach is made or
occurs, or any part of that land, and
dispose according to law of any distress
found, and may also take possession of the income of the same land until, by
means of such
distress and receipt of income or otherwise the whole or part of
the rentcharge (charged or apportioned as aforesaid) so unpaid and
all costs,
damages and expenses incurred by reason of the non-payment thereof or of the
breach of the said covenants and conditions,
are fully paid or
satisfied.
(3) Where in a conveyance for valuable consideration, other
than a mortgage, of part of land comprised in a lease, for the residue
of the
term or interest created by the lease, the rent reserved by such lease or a part
thereof is, without the consent of the lessor,
expressed to be -
(a) charged exclusively on the land conveyed or any part thereof in exoneration of the land retained by the assignor or other land; or
(b) charged exclusively on the land retained by the assignor or any part thereof in exoneration of the land conveyed or other land; or
(c) apportioned between the land conveyed or any part thereof and the land retained by the assignor or any part thereof;
then, without prejudice to the rights
of the lessor, such charge or apportionment shall be binding as between the
assignor and the
assignee under the conveyance and their respective successors
in title.
(4) Where -
(a) any default is made in payment of the whole or part of a rent by the person who, by reason of such charge or apportionment as aforesaid, is liable to pay the same; or
(b) any breach occurs of any of the lessee's covenants (other than in the case of an apportionment the covenant to pay the entire rent) or conditions contained in the lease, so far as the same relate to the land retained or conveyed, as the case may be;
the lessee for the time being of any other
land comprised in the lease, in whom, as respects that land, the residue of the
term or
interest created by the lease is vested, who -
(i) pays or is required to pay the whole or part of the rent which ought to have been paid by the defaulter aforesaid; or
(ii) incurs any costs, damages or expenses by reason of the breach of covenant or condition aforesaid;
may enter into and
distrain on the land comprised, in the lease in respect of which the default or
breach is made or occurs, or any
part of that land, and dispose according to law
of any distress found, and may also take possession of the income of the same
land
until (so long as the term or interest created by the lease is subsisting)
by means of such distress and receipt of income or otherwise,
the whole or part
of the rent (charged or apportioned as aforesaid) so unpaid and all costs,
damages and expenses incurred by reason
of the non-payment thereof or of the
breach of the said covenants and conditions, are fully paid or
satisfied.
(5) The remedies conferred by this section take effect so far
only as they might have been conferred by the conveyance whereby the
rent or any
part thereof is expressed to be charged or apportioned as aforesaid, but a
trustee, personal representative, mortgagee
or other person in a fiduciary
position has, and shall be deemed always to have had, power to confer the same
or like remedies.
(6) This section applies only if and so far as a
contrary intention is not expressed in the conveyance whereby the rent or any
part
thereof is expressed to be charged or apportioned as aforesaid, and takes
effect subject to the terms of that conveyance and to the
provisions therein
contained.
(7) The remedies conferred by this section apply only where
the conveyance whereby the rent or any part thereof is expressed to be
charged
or apportioned is made after the commencement of this Act, and do not apply
where the rent is charged exclusively as aforesaid
or legally apportioned with
the consent of the owner or lessor.
(8) The rule of law relating to
perpetuities does not affect the powers or remedies conferred by this section or
any like powers or
remedies expressly conferred, before or after the
commencement of this Act, by an
instrument.
191. Redemption and
Apportionment of Rents.- (1) Where there is a rent being either-
(a) a quit rent, chief rent or other annual or periodical sum issuing out of land; or
(b) a rent reserved on a sale, or made payable under a grant or licence (not operating as an agreement for a lease or tenancy) for building purposes; or
(c) a compensation rentcharge created as the consideration for the extinguishment of manorial incidents;
the Minister shall at any time, on
the requisition of the owner of the land or of any person interested therein,
certify the amount
of money in consideration whereof the rent may be
redeemed.
Where the rent is not perpetual, the Minister may authorise the
purchase of a Government annuity of an amount equal to the rent, payable
during
the residue of the period for which the rent would have been payable, in such
names as he may think fit, and give directions
as to payment of the annuity, and
the amount required to purchase that annuity shall be the redemption
money.
(2) Where the rent is perpetual and was reserved on a sale, or was
made payable under a grant or licence for building purposes, the
redemption
money shall be such as would (according to the average price, at the date of
redemption, of such Government securities
as may for the time being be
prescribed by the Treasury) purchase sufficient of such Government securities to
yield annual dividends
equal to the amount of the yearly rent
redeemed.
(3) Where the person entitled to the rent is absolutely
entitled thereto in fee simple in possession, or is empowered to dispose thereof
absolutely, or to give an absolute discharge for the capital value thereof, the
owner of the land, or any person interested therein,
may, after serving one
month's notice on the person entitled to the rent, pay or tender to that person
the amount certified by the
Minister.
(4) If the Minister is
satisfied-
(a) that any person who has been in receipt of a rent, or claims to be entitled thereto, is unable or unwilling to prove his title either to dispose thereof absolutely, or to give an absolute discharge for the capital value thereof, or neglects to apply to any competent body or person for any requisite order or consent; or
(b) that a person entitled to the rent or any part thereof cannot be found or ascertained; or
(c) that by reason of complications in the title to the rent, or the want of two or more trustees, or for any other reason a tender of the redemption money cannot be effected, or cannot be effected without incurring or involving unreasonable cost or delay;
the Minister may authorise the owner or
other person interested in the land affected by the rent to pay the amount of
the redemption
money certified by the Minister or the Government annuity into
court, to an account entitled in the matter of the rent and of the
land
affected.
(5) On proof to the Minister that such payment (whether into
court or otherwise) or tender has been made, he shall certify that the
rent is
redeemed under this Act; and that certificate shall be final and conclusive, and
the land shall be thereby absolutely freed
and discharged from the
rent.
(6) Any person claming to be interested in the annuity or fund in
court, or who would have been interested in the rent had it not
been redeemed,
may apply to the court for an order giving directions for the payment of the
annuity or fund in court or any part
thereof, or of the income thereof to the
persons entitled to give a receipt therefore, and it shall not be necessary to
serve the
owner of the land or the Minister with notice of the
proceedings.
(7) Where any person interested in the whole or any part of
the land affected by the rent desires to effect a discharge of a part
of the
land, and the remainder of the land is not exonerated or indemnified from the
rent by means of a charge on the aforesaid part,
the Minister may, on his
application, by a certificate, apportion the rent between the aforesaid part of
the land and the remainder
of the land affected (regard being had to the
security which will be left for the payment of any part of the rent, and to any
apportionment
which is not binding on the owner of the rent), and any
apportioned part of the rent shall be redeemable under this section, and,
on
such redemption, the part of the land to which the redemption applies shall be
discharged from the entire rent.
(8) Every requisition under this section
shall be in writing; and every certificate under this section may be in writing,
sealed with
the seal of the Minister.
(9) Rules may be made by the
Minister for regulating proceedings to be taken under this section, and to the
manner in which costs
are to be borne by the respective parties.
(10) All
decisions of the Minister made under this section shall (subject only to such
appeal to the court as may be prescribed by
rules of court) be
final.
(11) This section applies whether or not the rent is settled or is
held on trust for sale, or on trust for charitable, ecclesiastical,
public or
other purposes, or is subject to incumbrances, and whether the rent was created
before or after the commencement of this
Act.
(12) This section does not
apply to tithe rent charge or a charge or other payment redeemable under the
Tithe Act, 1836 to 1918, or
to a rent reserved by a lease of
tenancy.
192. Apportionment of charges
payable for redemption of tithe rentcharge.- An order of apportionment of
a charge on land by way of annuity for redemption of tithe rentcharge may be
made by the Minister under
sections ten to fourteen (inclusive) of the Inclosure
Act, 1854, on the application of any person interested, according to the
provisions
of the Inclosure Acts, 1845 to 1882, in land charged or any part
thereof without the concurrence of any other person:
Provided that the
Minister may, in any such case, on the application of any person interested in
the annuity, require as a condition
of making the order that any apportioned
part of the annuity which does not exceed the yearly sum of two pounds shall be
redeemed
forthwith.
Commons and Waste Lands.
193. Rights of the
public over commons and waste lands.- (1) Members of the public shall,
subject as hereinafter provided, have rights of access for air and exercise to
any land which is
a metropolitan common within the meaning of the Metropolitan
Commons Acts, 1866 to 1898, or manorial waste, or a common, which is
wholly or
partly situated within a borough or urban district, and to any land which at the
commencement of this Act is subject to
rights of common and to which this
section may from time to time be applied in manner hereinafter
provided:
Provided that -
(a) such rights of access shall be subject to any Act, scheme, or provisional order for the regulation of the land, and to any byelaw, regulation or order made thereunder or under any other statutory authority; and
(b) the Minister shall, on the application of any person entitled as lord of the manor or otherwise to the soil of the land, or entitled to any commonable rights affecting the land, impose such limitations on and conditions as to the exercise of the rights of access or as to the extent of the land to be affected as, in the opinion of the Minister, are necessary or desirable for preventing any estate, right or interest of a profitable or beneficial nature in, over, or affecting the land from being injuriously affected, or for protecting any object of historical interest and, where any such limitations or conditions are so imposed, the rights of access shall be subject thereto; and
(c) such rights of access shall not include any right to draw or drive upon the land a carriage, cart, caravan, truck, or other vehicle, or to camp or light any fire thereon; and
(d) the rights of access shall cease to apply -
(i) to any land over which the commonable rights are extinguished under any statutory provision;
(ii) to any land over which the commonable rights are otherwise extinguished if the council of the county or county borough in which the land is situated by resolution assent to its exclusion from the operation of this section, and the resolution is approved by the Minister.
(2) The lord of the
manor or other person entitled to the soil of any land subject to rights of
common may by deed, revocable or irrevocable,
declare that this section shall
apply to the land, and upon such deed being deposited with the Minister the land
shall, so long as
the deed remains operative, be land to which this section
applies.
(3) Where limitations or conditions are imposed by the Minister
under this section, they shall be published by such person and in
such manner as
the Minister may direct.
(4) Any person who, without lawful authority,
draws or drives upon any land to which this section applies any carriage, cart,
caravan,
truck, or other vehicle, or camps or lights any fire thereon, or who
fails to observe any limitation or condition imposed by the
Minister under this
section in respect of any such land, shall be liable on summary conviction to a
fine not exceeding forty shilling
for each offence.
(5) Nothing in this
section shall prejudice or affect the right of any person to get and remove
mines or minerals or to let down the
surface of the manorial waste or
common.
(6) This section does not apply to any common or manorial waste
which is for the time being held for Naval, Military or Air Force
purposes and
in respect of which rights of common have been extinguished or cannot be
exercised.
194. Restrictions on
inclosure of commons.- (1) The erection of any building or fence, or the
construction of any other work, whereby access to land to which this section
applies
is prevented or impeded, shall not be lawful unless the consent of the
Minister thereto is obtained, and in giving or withholding
his consent the
Minister shall have regard to the same considerations and shall, if necessary,
hold the same inquiries as are directed
by the Commons Act, 1876, to be taken
into consideration and held by the Minister before forming an opinion whether an
application
under the Inclosure Acts, 1845 to 1882, shall be acceded to or
not.
(2) Where any building or fence is erected, or any other work
constructed without such consent as is required by this section, the
county
court within whose jurisdiction the land is situated, shall, on an application
being made by the council of any county or
borough or district concerned, or by
the lord of the manor or any other person interested in the common, have power
to make an order
for the removal of the work, and the restoration of the land to
the condition in which it was before the work was erected or constructed,
but
any such order shall be subject to the like appeal as an order made under
section thirty of the Commons Act, 1876.
(3) This section applies to any
land which at the commencement of this Act is subject to rights of
common:
Provided that this section shall cease to apply-
(a) to any land over which the rights of common are extinguished under any statutory provision;
(b) to any land over which the rights of common are otherwise extinguished, if the council of the county or county borough in which the land is situated by resolution assent to its exclusion from the operation of this section and the resolution is approved by the Minister.
(4) This section does not apply to
any building or fence erected or work constructed if specially authorised by Act
of Parliament,
or in pursuance of an Act of Parliament or Order having the force
of an Act, or if lawfully erected or constructed in connexion with
the taking or
working of minerals in or under any land to which the section is otherwise
applicable, or to any telegraphic line as
defined by the Telegraph Act, 1878, of
the Postmaster-General.
Judgments, etc., afffecting Land.
195. Equitable charges
in right of judgment debt, etc.- (1) Subject as hereinafter mentioned a
judgment entered up in the Supreme Court (whether before or after the
commencement of this
Act) against any person (in this section called a "judgment
debtor") shall operate as an equitable charge upon every estate or interest
(
whether legal or equitable) in all land to or over which the judgment debtor at
the date of entry or at any time thereafter is
or becomes -
(a) beneficially entitled; or
(b) entitled to exercise a power of disposition for his own benefit without the assent of any other person;
and the judgment shall bind-
(i) the judgment debtor; and
(ii) all persons deriving title under him subsequently to the entry of the judgment; and
(iii) all persons capable of being bound by a disposition by the judgment debtor made after the entry of the judgment, including the issue of his body and all other persons, if any, whom he might without the assent of another person, have barred from any remainder, reversion or other interest, in the land.
(2) Every judgment creditor shall have
the same remedies against the estate or interests in the land so charged or any
part thereof
as he would have been entitled to if the judgment debtor had power
to charge the same, and had by writing, under his hand, agreed
to charge the
same, with the amount of the judgment debt and interest thereon.
(3)
Provided that-
(i) A judgment, whether obtained (on behalf of the Crown or otherwise) before or after the commencement of this Act, shall not operate as a charge on any interest in land or on the unpaid purchase money for any land unless or until a writ or order, for the purpose of enforcing it, is registered in the register of writs and orders at the Land Registry;
(ii) No judgment creditor shall be entitled to take proceedings to obtain the benefit of his charge until after the expiration of one year from the time of entering up the judgment;
(iii) No such charge shall operate to give the judgment creditor any preference, in case of the bankruptcy of the judgment debtor, unless the judgment has been entered up one year at least before the bankruptcy;
(iv) A judgment against a mortgagee, who is paid off before or at the time of a conveyance of an estate or interest in land to a purchaser, shall not create a charge upon the estate or interest in the land vested in the purchaser by any such conveyance.
(4) A recognisance, on behalf
of the Crown or otherwise, whether entered into before or after the commencement
of this Act, and an
inquisition finding a debt due to the Crown, and any
obligation or speciality made to or in favour of the Crown, whatever may have
been its date, shall not operate as a charge on any interest in land, or on the
unpaid purchase money for any land, unless or until
a writ or order, for the
purpose of enforcing it, is registered in the register of writs and orders at
the Land Registry.
(5) In this section "judgment" includes any decree,
order, or rule having the effect of a judgment.
Notices
196. Regulations
respecting notices.- (1) Any notice required or authorised to be served
or given by this Act shall be in writing.
(2) Any notice required or
authorised by this Act to be served on a lessee or mortgagor shall be
sufficient, although only addressed
to the lessee or mortgagor by that
designation, without his name, or generally to the persons interested, without
any name, and notwithstanding
that any person to be effected by the notice is
absent, under disability, unborn, or unascertained.
(3) Any notice
required or authorised by this Act to be served shall be sufficiently served if
it is left at the last-known place
of abode or business in the United Kingdom of
the lessee, lessor, mortagee, mortgagor, or other person to be served, or, in
case
of a notice required or authorised to be served on a lessee or mortgagor,
is affixed or left for him on the land or any house or
building comprised in the
lease or mortgage, or, in case of a mining lease, is left for the lessee at the
office or counting-house
of the mine.
(4) Any notice required or
authorised by this Act to be served shall also be sufficiently served, if it is
sent by post in a registered
letter addressed to the lessee, lessor, mortgagee,
mortgagor, or other person to be served, by name, at the aforesaid place of
abode
or business office, or counting-house, and if that letter is not returned
through the post-office undelivered; and that service shall
be deemed to be made
at the time at which the registered letter would in the ordinary course be
delivered.
(5) The provisions of this section shall extend to notices
required to be served by any instrument affecting property executed or
coming
into operation after the commencement of this Act unless a contrary intention
appears.
This section does not apply to notices served in proceedings in
the court.
197. Notice of memorials
registered in Middlesex and Yorkshire.- (1) The registration in a local
deeds registry of a memorial of any instrument transferring or creating a legal
estate or charge by
way of a legal mortgage, shall be deemed to constitute
actual notice of the transfer or creation of the legal estate or charge by
way
of legal mortgage, to all persons and for all purposes whatsoever, as from the
date of registration or other prescribed date,
and so long as the registration
continues in force.
(2) The registration of a memorial of an instrument
not required to be registered does not operate to give notice of such instrument
or of the contents thereof.
(3) This section operates without prejudice
to the provisions of this Act respecting the making of further advances by a
mortgagee,
and only applies to land within the jurisdiction of the
registry.
198. Registration under the
Land Charges Act, 1925, to be notice.- (1) The registration of any
instrument or matter under the provisions of the Land Charges Act, 1925, or any
enactment which it replaces,
in any register kept in the land registry or
elsewhere, shall be deemed to constitute actual notice of any such instrument or
matter,
and of the fact of such registration, to all persons and for all
purposes connected with the land affected, as from the date of registration
or
other prescribed date and so long as the registration continues in
force.
(2) This section operates without prejudice to the provisions of
this Act respecting the making of further advances by a mortgagee,
and applies
only to instruments and matters required or authorised to be registered under
the Land Charges Act, 1925.
199.
Restrictions on constructive notice.- (1) A purchaser shall not be
prejudicially affected by notice of -
(i) any instrument or matter capable of registration under the provisions of the Land Charges Act, 1925, or any enactment which it replaces, which is void or not enforceable as against him under that Act or enactment, by reason of the non-registration thereof;
(ii) any other instrument or matter or any fact or thing unless -
(a) it is within his own knowledge, or would have come to his knowledge if such inquiries and inspections had been made as ought reasonably to have been made by him; or
(b) in the same transaction with respect to which a question of notice to the purchaser arises, it has come to the knowledge of his counsel, as such, or of his solicitor or other agent, as such, or would have come to the knowledge of his solicitor or other agent, as such, if such inquiries and inspections had been made as ought reasonably to have been made by the solicitor or other agent.
(2) Paragraph (ii) of the
last subsection shall not exempt a purchaser from any liability under, or any
obligation to perform or observe,
any covenant, condition, provision, or
restriction contained in any instrument under which his title is derived,
immediately or immediately;
and such liability or obligation may be enforced in
the same manner and to the same extent as if that paragraph had not been
enacted.
(3) A purchaser shall not by reason of anything in this section
be affected by notice in any case where he would not have been so
affected if
this section had not been enacted.
(4) This section applies to purchases
made either before or after the commencement of this
Act.
200. Notice of restrictive
covenants and easements.- (1) Where land having a common title with other
land is disposed of to a purchaser (other than a lessee or a mortgagee) who does
not
hold or obtain possession of the documents forming the common title, such
purchaser, notwithstanding any stipulation to the contrary,
may require that a
memorandum giving notice of any provision contained in the disposition to him
restrictive of user of, or giving
rights over, any other land comprised in the
common title, shall, where practicable, be written or indorsed on, or, where
impracticable,
be permanently annexed to someone document selected by the
purchaser but retained in the possession or power of the person who makes
the
disposition, and being or forming part of the common title.
(2) The title
of any person omitting to require an endorsement to be made or a memorandum to
be annexed shall not, by reason only
of this enactment, be prejudiced or
affected by the omission.
(3) This section does not apply to dispositions
of registered land.
(4) Nothing in this section affects the obligation to
register a land charge in respect of -
(a) any restrictive covenant or agreement affecting freehold land; or
(b) any estate contract; or
(c) any equitable easement, liberty or privilege.
__________
PART XII
CONSTRUCTION, JURISDICTION, AND GENERAL PROVISIONS.
201. Provisions of Act
to apply to incorporeal hereditaments.- (1) The provisions of this Act
relating to freehold land apply to manors, reputed manors, lordships, advowsons
, tithe and perpetual
rent charges, and other incorporeal hereditaments, subject
only to the qualifications necessarily arising by reason of the inherent
nature
of the hereditament affected.
(2) This Act does not affect the special
restrictions imposed on dealing with advowsons by the Benefices Act, 1898, or
any other statute
or measure, nor affect the limitation of, or authorise any
disposition to be made of, a title or dignity of honour which in its nature
is
inalienable.
(3) This section takes effect subject to the express
provisions of this Act relating to undivided
shares.
202. Provisions as to
enfranchisement of copyholds, etc.- For giving effect to this Act, the
enfranchisement of copyhold land, and the conversion into long terms of
perpetually renewable leaseholds,
and of leases for lives and of leases for
years terminable: with life or lives or on marriage, effected, by the Law of
Property Act,
1922, as amended by any subsequent enactment, shall be deemed to
have been effected immediately before the commencement of this
Act.
203. Payment into court,
jurisdiction and procedure.- (1) Payment of money into court effectually
exonerates there from the person making the payment.
(2) Subject to any
rules of court to the contrary-
(a) Every application to the court under this Act shall, save as otherwise expressly provided, be by summons at chambers;
(b) On an application by a purchaser notice shall be served in the first instance on the vendor;
(c) On an application by a vendor notice shall be served in the first instance on the purchaser;
(d) On any application notice shall be served on such persons, if any, as the court thinks fit.
(3) In this Act, unless the contrary
intention appears, "the court" means the High Court, and also the Court of
Chancery of the County
Palatine of Lancaster or the Court of Chancery of the
County Palatine of Durham, or the county court, where those courts respectively
have jurisdiction.
(4) All matters within the jurisdiction of the High
Court under this Act shall, save as otherwise expressly provided, and subject
to
the enactments for the time being in force with respect to the Supreme Court of
Judicature, be assigned to the Chancery Division
of the court.
(5) The
court shall have full power and discretion to make such order as it thinks fit
respecting the costs, charges and expenses
of all or any of the parties to any
application.
204. Orders of court
conclusive.- (1) An order of the court under any statutory or other
jurisdiction shall not, as against a purchaser, be invalidated on the ground
of
want of jurisdiction, or of want of any concurrence, consent, notice, or
service, whether the purchaser has notice of any such
want or not.
(2)
This section has effect with respect to any lease, sale, or other act under the
authority of the court, and purporting to be in
pursuance of any statutory power
notwithstanding any exception in such statute.
(3) This section applies
to all orders made before or after the commencement of this
Act.
205. General definitions.-
(1) In this Act unless the context otherwise requires, the following
expressions have the meanings hereby assigned to them respectively,
that is to
say:-
(i) "Bankruptcy" includes liquidation by arrangement; also in relation to a corporation means the winding up thereof;
(ii) "Conveyance" includes a mortgage, charge, lease, assent, vesting declaration, vesting instrument, disclaimer, release and every other assurance of property or of an interest therein by any instrument, except a will; "convey" has a corresponding meaning; and "disposition"' includes a conveyance and also a devise, bequest, or an appointment of property contained in a will; and 'dispose of has a corresponding meaning;
(iii) "Building purposes" include the erecting and improving of, and the adding to, and the repairing of buildings; and a "building lease" is a lease for building purposes or purposes connected therewith;
(iv) "Death duty" means estate duty, succession duty, legacy duty, and every other duty leviable or payable on a death;
(v) "Estate owner" means the owner of legal estate, but an infant is not capable of being an estate owner;
(vi) "Gazette" means the London Gazette;
(vii) "Incumbrance" includes a legal or equitable mortgage and a trust: for securing money, and alien, and a charge of a portion, annuity, or other capital or annual sum; and "incumbrancer" has a meaning corresponding with that of encumbrance, and includes every person entitled to the benefit of an encumbrance, or to require payment or discharge thereof;
(viii) "Instrument" does not include a statute, unless the statute creates a settlement;
(ix) "Land" includes land of any tenure, and mines and minerals, whether or not held apart from the surface, buildings or parts of buildings (whether the division is horizontal, vertical or made in any other way) and other corporeal hereditaments, also a manor, an advowson, and a rent and other incorporeal hereditaments, and an easement, right, privilege, or benefit in, over, or derived from land; but not an undivided share in land; and “mines and minerals” include any strata or seam of minerals or substances in or under any land, and powers of working and getting the same but not an undivided share thereof; and “manor” includes a lordship, and reputed manor or lordship; and “hereditament” means any real property which on an intestacy occurring before the commencement of this Act might have devolved upon an heir;
(x) “Legal estates” mean the estates, interests and charges, in or over land (subsisting or created at law) which are by this Act authorised to subsist or to be created as legal estates; “equitable interests” means all the other interests and charges in or over land or in the proceeds of sale thereof; an equitable interest “capable of subsisting as a legal estate” means such as could validly subsist or be created as a legal estate under this Act;
(xi) “Legal powers” include the powers vested in a chargee by way of legal mortgage or in an estate owner under which a legal estate can be transferred or created; and “equitable powers” mean all the powers in or over land under which equitable interests or powers only can be transferred or created;
(xii) “Limitation Acts” mean the Real Property Limitation Acts, 1833, 1837 and 1874, and “limitation” includes a trust;
(xiii) “Lunatic” includes a lunatic whether so found or not, and, in relation to a lunatic not so found, “committee” includes a person on whom the powers of a committee are conferred under section one of the Lunacy Act, 1908; “defective” includes every person affected by the provisions of section one hundred and sixteen of the Lunacy Act, 1890, as extended by section sixty-four of the Mental Deficiency Act, 1913, and for whose benefit a receiver has been appointed;
(xiv) A “mining lease” means a lease for mining purposes, that is, the searching for, winning, working, getting, making merchantable, carrying away, or disposing of mines and minerals, or purposes connected therewith, and includes a grant or licence for mining purposes;
(xv) “Minister” means the Minister of Agriculture and Fisheries;
(xvi) “Mortgage” includes any charge or lien on any property for securing money or money’s worth; “legal mortgage” means a mortgage by demise or subdemise or a charge by way of legal mortgage and “legal mortgagee” has a corresponding meaning; “mortgage money” means money or money’s worth secured by a mortgage; “mortgagor” includes any person from time to time deriving title under the original mortgagor or entitled to redeem a mortgage according to his estate interest or right in the mortgaged property; “mortgagee” includes a chargee by way of legal mortgage and any person from time to time deriving title under the original mortgagee; and “mortgagee in possession”, for the purposes of this Act, a mortgagee who, in right of the mortgage, has entered into and is in possession of the mortgaged property; and “right of redemption” includes an option to repurchase only if the option in effect creates a right of redemption;
(xvii) “Notice” includes constructive notice;
(xviii) “Personal representative” means the executor, original or by representation, or administrator for the time being of a deceased person, and as regards any liability for the payment of death duties includes any person who takes possession of or intermeddles with the property of a deceased person without the authority of the personal representatives or the court;
(xix) “Possession” includes receipt of rents and profits or the right to receive the same, if any; and “income” includes rents and profits;
(xx) “Property” includes any thing in action, and any interest in real or personal property;
(xxi) “Purchaser” means a purchaser in good faith for valuable consideration and includes a lessee, mortgagee or other person who for valuable consideration acquires an interest in property except that in Part I. of this Act and elsewhere where so expressly provided “purchaser” only means a person who acquires an interest in or charge on property for money or money’s worth; and in reference to a legal estate includes a chargee by way of legal mortgage; and where the context so requires “purchaser” includes an intending purchaser; “purchase” has a meaning corresponding with that of “purchaser”; and “valuable consideration” includes marriage but does not include a normal consideration in money;
(xxii) “Registered land” has the same meaning as in the Land Registration Act, 1925, and “Land Registrar” means the Chief Land Registrar under that Act;
(xxvii) “Rent” includes a rent service or a rent charge, or other ,rent, toll, duty, royalty, or annual or periodical payment in money or money’s worth, reserved or issuing out of or charged upon land, but does not include mortgage interest; “rent charge” includes a fee farm rent; “fine” includes a premium or foregift and, any payment, consideration, or benefit in the nature of a fine, premium or foregift; “lessor” includes an underlessor and a person deriving title under a lessor or underlessor; and “lessee” includes an underlessee and a person deriving title under a lessee or underlessee, and ‘lease’ includes an underlease or other tenancy;
(xxiv) “Sale” includes an extinguishment of manorial incidents, but in other respects means a sale properly so called;
(xxv) “Securities” include stocks, funds and shares;
(xxvi) “Tenant for life,” “statutory owner,” “settled land,” “settlement,” “vesting deed”, “subsidiary vesting deed,” “vesting order,” “vesting instrument,” “trust instrument,” “capital money,” and “trustees of the settlement” have the same meanings as in the Settled Land Act, 1925;
(xxvii) “Term of years absolute” means a term of years. (taking effect either in possession or in reversion whether or not at a rent) with or without impeachment for waste, subject or not to another legal estate, and either certain or liable to, determination by notice, re-entry, operation of law, or by a provision for cesser on redemption, or in any other event (other than the dropping of a life, or the determination of a determinable life interest); but does not include any term of years determinable with. life or lives or with the cesser of a determinable life interest, nor, if created after the commencement of this Act, a term of years which is not expressed to take effect in possession within twenty-one years after the creation thereof where required by this Act to take effect within that period; and in this definition the expression “term of years” includes a term for less than a year, or for a year or years and a fraction of a year or from year to year;
(xxvii) “Trust Corporation” means the Public Trustee or a corporation either appointed by the court in any particular case to be a trustee or entitled by rules made under subsection (3) of section four of the Public Trustee Act, 1906, to act as custodian trustee;
(xxix) “Trust for sale,” in relation to land, means an immediate binding trust for sale, whether or not exercisable at the request or with the consent of any person, and with or without a power at discretion to postpone the sale; “trustees for sale” mean the persons (including a personal representative) holding land on trust for sale; and “power to postpone a sale” means power to postpone in the exercise of a discretion;
(xxx) “United Kingdom” means Great Britain and Northern Ireland;
(xxxi) “Will” includes codicil.
(2) Where an equitable interest in or
power over property arises by statute or operation of law, references to the
creation of an
interest or power include references to any interest or power so
arising.
(3) References to registration under the Land Charges Act, 1925,
apply to any registration made under any other statute which is by
the Land
Charges, Act, 1925, to have effect as; if the registration had been made under
that Act.
206. Form of instruments and
examples of abstracts.-(1) Instruments in the form of, and using the
expressions in the forms given in the Fifth Schedule to this Act, or in the like
form
or using expressions to the like effect, shall, in regard to form and
expression be sufficient.
(2) Examples of abstracts of titles framed in
accordance with the enactments which will take effect at the commencement of
this Act
are contained in the Sixth Schedule to this
Act.
207. Repeals as respects England
and Wales.- The Acts mentioned in the Seventh Schedule to this Act are
hereby repealed to the extent specified in the third column of that
Schedule:
Provided that, without prejudice to the provisions of section
thirty-eight of the Interpretation Act, 1889:-
(a) Nothing in this repeal shall affect the validity or legality of any dealing in property or other transaction completed before the commencement of this Act, or any title or right acquired or appointment made before such commencement, but, subject as aforesaid, this Act shall, except where otherwise expressly provided, apply to and in respect of instruments whether made or coming into operation before or after such commencement;
(b) Nothing in this repeal shall affect any rules, orders, or other instruments made under any enactment so repealed, but all such rules, orders and instruments shall continue in force as if made under the corresponding enactment in this Act;
(c) References in any document to any enactment repealed by this Act shall be construed as references to this Act or to the corresponding enactment in this Act.
208.
Application to the Crown.- (1) Nothing in this Act shall be construed as
rendering any property of the Crown subject to distress, or liable to be taken
or
disposed of by means of any distress.
(2) This Act shall not in any
manner (save as otherwise expressly provided and except so far as it relates to
undivided shares, joint
ownership, leases for lives or leases for years
terminable with life or marriage) affect or alter the descent, devolution or
tenure
or the nature of the estates and interests of or in any land for the time
being vested in His Majesty either in right of the Crown
or of the Duchy of
Lancaster or of or in any land for the time being belonging to the Duchy of
Cornwall and held in right or in respect
of the said Duchy, but so nevertheless
that, after the commencement of this Act, no estates, interests or charges in or
over any
such lands as aforesaid shall be conveyed or created, except such
estates, interests or charges as are capable under this Act of
subsisting or of
being conveyed or created.
(3) Subject as aforesaid the provisions of
this Act bind the Crown.
209. Short
title and commencement, extent.- (1) This Act maybe cited as the Law of
Property Act, 1925.
(2) This Act shall come into operation on the first
day of January, nineteen hundred and twenty-six.
(3) This Act extends to
England and Wales only.
______________
SCHEDULES
|
FIRST
SCHEDULE.
|
Section
39
|
TRANSITIONAL PROVISIONS
PART I.
CONVERSION
OF CERTAIN EXISTING LEGAL ESTATES INTO
EQUITABLE INTERESTS
All estates, interests and charges in or over land,
including fees determinable whether by limitation or condition, which
immediately
before the commencement of this Act were estates, interests or
charges, subsisting at law, or capable of taking effect as such, but
which by
virtue of Part I. of this Act are not
capable of taking effect as legal estates, shall as from the commencement of
this Act be converted into equitable
interests, and shall not fail by reason of
being so converted into equitable interests either in the land or in the
proceeds of sale
thereof, nor shall the priority of any such estate, charge or
interest over other equitable interests be affected.
PART II.
VESTING OF LEGAL ESTATES
1. Where the purposes of a term of years, created or
limited out of leasehold land, are satisfied at the commencement of this Act,
that term shall merge in the reversion expectant thereon and shall cease
accordingly; but where the term was vested in the owner
of the reversion, the
merger and cesser shall take effect without prejudice to any protection which
would have been afforded to the
owner for the time being of that reversion had
the term remained subsisting.
Where the purposes are satisfied only as
respects part of the land comprised in a term, this provision has effect as if a
separate
term had been created in regard to that part of the land.
2.
Where immediately after the commencement of this Act any owner of a legal estate
is entitled, subject or not to the payment of
the costs of tracing the title and
of conveyance, to require any other legal estate in the same land to be
surrendered, released
or conveyed to him so as to merge or be extinguished, the
last-mentioned estate shall by virtue of this Part of this Schedule be
extinguished, but without prejudice to any protection which would have been
afforded to him had that estate remained subsisting.
3. Where immediately
after the commencement of this Act any person is entitled, subject or not to the
payment of the costs of tracing
the title and of conveyance, to require any
legal estate (not vested in trustees for sale) to be conveyed to or otherwise
vested
in him, such legal estate shall, by virtue of this Part of this Schedule,
vest in manner hereinafter provided.
[The divesting of a legal estate by
virtue of this paragraph shall not, where the person from whom the estate is so
divested was a
trustee, operate to prevent the legal estate being conveyed, or a
legal estate being created, by him in favour of a purchaser for
money or money's
worth, if the purchaser has no notice of the trust and if the documents of title
relating to the estate divested
are produced by the trustee or by persons
deriving title under him.]
This paragraph shall (without prejudice to any
claim, in respect of fines, fees, and other customary payments) apply to a
person who,
under a surrender or any disposition having the effect of a
surrender, or under a covenant to surrender or otherwise, was, immediately
before the commencement of this Act, entitled to require a legal customary
estate of inheritance to be vested in him, or who, immediately
after such
commencement becomes entitled to enfranchised land.
4. Any person who,
immediately after the commencement of this Act, is entitled to an equitable
interest capable of subsisting as a
legal estate which has priority over any
legal estate in the same land, shall be deemed to be entitled for the foregoing
purposes
to require a legal estate to be vested in him for an interest of a like
nature not exceeding in extent or duration the equitable
interest:
Provided that this paragraph shall not -
(a) apply where the equitable interest is capable of being overreached by virtue of a subsisting trust for sale or a settlement;
(b) operate to prevent such person from acquiring any other legal estate under this Part of this Schedule to which he may be entitled.
5. For the
purposes of this Part of this Schedule, a tenant for life, statutory owner or
personal representative, shall be deemed
to be entitled to require to be vested
in him any legal estate in settled land (whether or not vested in the Crown)
which he is,
by the Settled Land Act, 1925, given power to convey.
6.
Under the provisions of this Part of this Schedule, the legal estate affected
(namely, any estate which a person is entitled to
require to be vested in him as
aforesaid) shall vest as follows:-
(a) Where at the commencement of this Act land is subject to a mortgage (not being an equitable charge unsecured by any estate), the legal estate affected shall vest in accordance with the provisions relating to mortgages contained in this Schedule;
(b) Where the land is at the commencement or by virtue of this Act or any Act coming into operation at the same time subject or is by virtue of any statute made subject to a trust for sale, the legal estate affected shall vest in the trustees for sale (including personal representatives holding land on trust for sale) but subject to any mortgage term subsisting or created by this Act;
(c)Where at the commencement of this Act or by virtue of any statute coming into operation at the same time the land is settled land, the legal estate affected shall vest in the tenant for life or statutory owner entitled under the Settled Land Act, 1925, to require a vesting deed to be executed in his favour, or in the personal representative, if any, in whom the land may be vested or the Public Trustee, as the case may require but subject to any mortgage term subsisting or created by this Act;
(d) In any case to which the foregoing sub-paragraphs do not apply the legal estate affected shall vest in the person of full age who, immediately after the commencement of this Act, is entitled (subject or not to the payment of costs and any customary payments) to require the legal estate to be vested in him, but subject to any mortgage term subsisting or created by this Act.
7. Nothing
in this Part of this Schedule shall operate -
(a) To vest in a mortgagee of a term of years absolute any nominal leasehold reversion which is held in trust for him subject to redemption; or
(b) To vest in a mortgagee any legal estate except a term of years absolute; or
(c) To vest in a person entitled to a leasehold interest, as respects such interest, any legal estate except a term of years absolute; or
(d) To vest in a person entitled to a rent charge (either perpetual or held for a term of years absolute) as respects such rent charge, any legal estate except a legal estate in the rent charge; or
(e) To vest in a person entitled to an easement, right or privilege with reference thereto, any legal estate except a legal estate in the easement, right or privilege; or
(f) To vest any legal estate in a person for an undivided share; or
(g) To vest any legal estate in an infant; or
(h) To affect prejudicially the priority of any mortgage or other encumbrance or interest subsisting at the commencement of this Act; or
(i) To render invalid any limitation or trust which would have been capable of taking effect as an equitable limitation or trust; or
(j) To vest in a purchaser or his personal representatives any legal estate which he has contracted to acquire and in regard to which a contract, including an agreement to create a legal mortgage, is pending at the commencement of this Act, although the consideration may have been paid or satisfied and the title accepted, or to render unnecessary the conveyance of such estate; or
(k) To vest in the managing trustees or committee of management of a charity any legal estate vested in the Official Trustee of Charity Lands; or
(l) To vest in any person any legal estate which failed to pass to him by reason of his omission to be registered as proprietor under the Land Transfer Acts, 1875 and 1897, until brought into operation by virtue of the Land Registration Act, 1925;
[(m) To vest in any person any legal estate affected by any rent covenants or conditions if, before any proceedings are commenced in respect of the rent covenants or conditions, and before any conveyance of the legal estate or dealing therewith inter vivos is effected, he or his personal representatives disclaim it in writing signed by him or them.]
8. Any legal estate acquired by virtue
of this Part of this Schedule shall be held upon the trusts and subject to the
powers, provisions,
rents, covenants, conditions, rights of redemption (as
respects terms of years absolute) and other rights, burdens and obligations,
if
any, upon or subject to which the estate acquired ought to be held.
9. No
stamp duty shall become payable by reason only of any vesting surrender or
release effected by this Schedule.
PART III.
PROVISIONS AS TO LEGAL ESTATE VESTED IN INFANT.
1. Where
immediately before the commencement of this Act a legal estate in land is vested
in one or more infants beneficially, or where
immediately after the commencement
of this Act a legal estate in land would by virtue of this Act have become
vested in one or more
infants beneficially if he or they had been of full age,
the legal estate shall vest in the manner provided by the Settled Land Act,
1925.
2. Where immediately
before the commencement of this Act a legal estate in land is vested in an
infant jointly with one or more other
persons of full age beneficially, the
legal estate shall by virtue of this Act vest in that other person or those
other 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:
Provided that, if by virtue of this paragraph the legal estate
becomes vested in one person as trustee, then, if no other person is
able and
willing to do so, the parents or parent testamentary or other guardian of the
infant, if respectively able and willing to
act, (in the order named) may, and
at the request of any person interested shall (subject to the costs being
provided for) by writing
appoint an additional trustee and thereupon by virtue
of this Act the legal estate shall vest in the additional trustee and existing
trustee as joint tenants.
3.
Where, immediately before the commencement of this Act, a legal estate in land
is vested solely in an infant as a personal representative,
or a trustee of a
settlement, or on trust for sale or on any other trust, or by way of mortgage,
or where immediately after the commencement
of this Act a legal estate in land
would by virtue of any provision of this Act or otherwise have been so vested if
the infant were
of full age, the legal estate and the mortgage debt (if any) and
interest thereon shall, by virtue of this Act, vest in the Public
Trustee,
pending the appointment of trustees as hereinafter provided-
(a) as to the land, upon the trusts, and subject to the equities affecting the same (but in the case of a mortgage estate for a term of years absolute in accordance with this Act); and
(b) as to the mortgage debt and interest, upon such trusts as may be requisite for giving effect to the rights (if any) of the infant or other persons beneficially interested therein:
Provided that –
(i) The Public Trustee shall not be entitled to act in the trust, or charge a fee, or be liable in any manner, unless and until requested in writing to act by or on behalf of the persons interested in the land or the income thereof, or in the mortgage debt or interest thereon (as the case may be), which request may be made on behalf of the infant by his parents or parent, or testamentary or other guardian (in the order named), and those persons may, in the order aforesaid (if no other person is able and willing to do so) appoint new trustees in the place of the Public Trustee, and thereupon by virtue of this Act the land or term and mortgage money shall vest in the trustees so appointed upon the trusts and subject to the equities aforesaid: Provided that the Public Trustee may, before he accepts the trust, but subject to the payment of his costs, convey to a person of full age who becomes entitled;
(ii) After the Public Trustee has been so requested to act, and has accepted the trust, no trustee shall (except by an order of the court) be appointed in his place without his consent;
(iii) Any person interested in the land or the income thereof, or in the mortgage debt or in the interest thereon (as the case may be), may, at any time during his minority, apply to the court for the appointment of trustees of the trust, and the court may make such order as it thinks fit, and if thereby new trustees are appointed the legal estate (but in the case of a mortgage estate only for a term of years absolute as aforesaid) and the mortgage debt (if any) and interest shall, by virtue of this Act, vest in the trustees as joint tenants upon the trusts and subject to the equities aforesaid;
(iv) Neither a purchaser of the land nor a transferee for money or money’s worth of the mortgage shall be concerned in any way with the trusts affecting the legal estate or the mortgage debt and interest thereon;
(v) The vesting in the Public Trustee of a legal estate or a mortgage debt by virtue of this Part of this Schedule shall not affect any directions previously given as to the payment of income or of interest on any mortgage money, but such instructions may, until he accepts the trust, continue to be acted on as if no such vesting had been effected.
4.
Where, immediately before the commencement of this Act, a legal estate in land
is vested in two or more persons jointly as personal
representatives, trustees,
or mortgagees, and anyone of them is an infant, or where immediately after the
commencement of this Act
a legal estate in land would, by virtue of this Act, or
otherwise have been so vested if the infant were of full age, the legal estate
in the land with the mortgage debt (if any) and the interest thereon shall, by
virtue of this Act, vest in the other person or persons
of full age-
(a) as to the legal estate, upon the trusts and subject to the equities affecting the same (but in the case of a mortgage estate only for a term of years absolute as aforesaid); and
(b) as to the mortgage debt and interest, upon such trusts as may be requisite for giving effect to the rights (if any) of the infant or other persons beneficially interested therein;
but neither a purchaser of the land
nor a transferee for money or money's worth of the mortgage shall be concerned
in any way with
the trusts affecting the legal estate or the mortgage debt and
interest thereon:
Provided that, if, by virtue of this paragraph, the
legal estate and mortgage debt, if any, become vested in a sole trustee, then,
if no other person is able and willing to do so, the parents or parent,
testamentary or other guardian of the infant (in the order
named) may, and at
the request of any person interested shall (subject to the costs being provided
for) by writing appoint a new
trustee in place of the infant, and thereupon by
virtue of this Act the legal estate and mortgage money shall vest in the new and
continuing trustees upon the trusts and subject to the equities
aforesaid.
5. This Part of this
Schedule does not affect the estate or powers of an administrator durante minore
aetate, nor, where there is a
tenant for life or statutory owner of settled
land, operate to vest the legal estate therein in the Public Trustee.
PART IV.
PROVISIONS SUBJECTING LAND HELD IN UNDIVIDED SHARES
TO A TRUST FOR SALE
1. Where,
immediately before the commencement of this Act, land is held at law or in
equity in undivided shares vested in possession,
the following provisions shall
have effect:-
(1) If the entirety of the land is vested in trustees or
personal representatives (whether subject or not to incumbrances affecting
the
entirety or an undivided share) in trust for persons entitled in undivided
shares, then -
(a) if the land is subject to incumbrances affecting undivided shares or to incumbrances affecting the entirety which under this Act or otherwise are not secured by legal terms of years absolute, the entirety of the land shall vest free from such incumbrances in such trustees or personal representatives and be held by them upon the statutory trusts; and
(b) in any other case, the land shall be held by such trustees or personal representatives upon the statutory trusts;
subject in the case of personal
representatives, to their rights and powers for the purposes of
administration.
(2) If the entirety of the land (not being settled land)
is vested absolutely and beneficially in not more than four persons of full
age
entitled thereto in undivided shares free from incumbrances affecting undivided
shares, but subject or not to incumbrances affecting
the entirety, it shall, by
virtue of this Act, vest in them as joint tenants upon the statutory
trusts.
(3) If the entirety of the land is settled land (whether subject
or not to incumbrances affecting the entirety or an undivided share)
held under
one and the same settlement, it shall, by virtue of this Act, vest, free from
incumbrances affecting undivided shares,
and from incumbrances affecting the
entirety, which under this Act or otherwise are not secured by a legal
[mortgage, and free from
any interests, powers and charges subsisting under the
settlement, which have priority to the interests of the persons entitled to
the
undivided shares], in the trustees (if any) of the settlement as joint tenants
upon the statutory trusts.
Provided that if there are no such trustees,
then -
(i) pending their appointment, the land shall, by virtue of this Act, vest (free as aforesaid) in the Public Trustee upon the statutory trusts;
(ii) the Public Trustee shall not be entitled to act in the trust, or charge any fee, or be liable in any manner, unless and until requested in writing to act by or on behalf of persons interested in more than an undivided half of the land or the income thereof;
(iii) after the Public Trustee has been so requested to act, and has accepted the trust, no trustee shall (except by an order of the Court) be appointed in the place of the Public Trustee without his consent;
(iv) if, before the Public Trustee has accepted the trust, trustees of the settlement are appointed, the land shall, by virtue of this Act, vest (free as aforesaid) in them as joint tenants upon the statutory trusts;
(v) if, before the Public Trustee has accepted the trust, the persons having power to appoint new trustees are unable or unwilling to make an appointment, or if the tenant for life having power to apply to the court for the appointment of trustees of the settlement neglects to make the application for at least three months after being requested by any person interested in writing so to do, or if the tenants for life of the undivided shares are unable to agree, any person interested under the settlement may apply to the court for the appointment of such trustees.
(4) In any case to which the
foregoing provisions of this Part of this Schedule do not apply, the entirety of
the land shall vest
(free as aforesaid) in the Public Trustee upon the statutory
trusts:
Provided that -
(i) The Public Trustee shall not be entitled to act in the trust, or charge any fee, or be liable in any manner, unless and until requested in writing to act by or on behalf of the persons interested in more than an undivided half of the land or the income hereof;
(ii) After the Public Trustee had been so requested to act, and has accepted the trust, no trustee shall (except by an order of the court) be appointed in the place of the Public Trustee without his consent;
(iii) Subject as aforesaid, any persons interested in more than an undivided half of the land or the income thereof may appoint new trustees in the place of the Public Trustee with the consent of any incumbrancers of undivided shares (but so that a purchaser shall not be concerned to see whether any such consent has been given) and [thereupon the land shall by virtue of this Act vest] in the persons so appointed (free as aforesaid) upon the statutory trusts; or such persons may (without such consent as aforesaid), at any time, whether or not the Public Trustee has accepted the trust, apply to the court for the appointment of trustees of the land, and the court may make such order as it thinks fit, and if thereby trustees of the land are appointed, the same shall by virtue of this Act, vest (free as aforesaid) in the trustees as joint tenants upon the statutory trusts;
(iv) If the persons interested in more than an undivided half of the land or the income thereof do not either request the Public Trustee to act, or (whether he refuses to act or has not been requested to act) apply to the court for the appointment of trustees in his place, within three months from the time when they have been requested in writing by any person interested so to do, then and in any such case, any person interested may apply to the court for the appointment of trustees in the place of the Public Trustee, and the court may make such order as it thinks fit, and if thereby trustees of the land are appointed the same shall by virtue of this Act, vest (free as aforesaid) in the trustees upon the statutory trusts.
(5) The
vesting in the Public Trustee of land by virtue of this Part of this Schedule
shall not affect any directions previously given
as to the payment of income or
of interest on any mortgage money, but such instructions may, until he accepts
the trust, continue
to be acted on as if no such vesting had been
effected.
(6) The court or the Public Trustee may act on evidence given
by affidavit or by statutory declaration as respects the undivided shares
without investigating the title to the land.
(7) Where all the undivided
shares in the land are vested in the same mortgagees for securing the same
mortgage money and the rights
of redemption affecting the land are the same as
might have been subsisting if the entirety had been mortgaged by an owner before
the undivided shares were created, the land shall, by virtue of this Act, vest
in the mortgagees as joint tenants for a legal term
of years absolute (in
accordance with this Act) subject to cesser on redemption by the trustees for
sale in whom the right of redemption
is vested by this Act, and for the purposes
of this Part of this Schedule the mortgage shall be deemed an incumbrance
affecting the
entirety.
(8) This Part of this Schedule does not (except
where otherwise expressly provided) prejudice incumbrancers whose incumbrances
affect
the entirety of the land at the commencement of this Act, but (if the
nature of the incumbrance admits) the land shall vest in them
for legal terms of
years absolute in accordance with this Act but not so as to affect subsisting
priorities.
(9) The trust for sale and powers of management vested in
persons who hold the entirety of the land on trust for sale shall, save
as
hereinafter mentioned, not be exercisable without the consent of any
incumbrancer, being of full age, affected whose incumbrance
is divested by this
Part of this Schedule, but a purchaser shall not be concerned to see or inquire
whether any such consent has
been given, nor, where the incumbrancer is not in
possession, shall any such consent be required if, independently of this Part of
this Schedule or any enactment replaced thereby the transaction would have been
binding on him, had the same been effected by the
mortgagor.
(10) This
Part of this Schedule does not apply to land in respect of which a subsisting
contract for sale (whether made under an order
in a partition action or by or on
behalf of all the tenants in common or coparceners) is in force at the
commencement of this Act
if the contract is completed in due course (in which
case title may be made in like manner as if this Act, and any enactment thereby
replaced, had not been passed), nor to the land in respect of which a partition
action is pending at such commencement if an order
for a partition or sale is
subsequently made in such action [within eighteen months from the commencement
of this Act.]
(11) The repeal of the enactments relating to partition
shall operate without prejudice to any proceedings thereunder commenced before
the commencement of this Act, and to the jurisdiction of the court to make any
orders in reference thereto, and subject to the following
provisions,
namely:-
(i) In any such proceedings, and at any stage thereof, any person or persons interested individually or collectively in [one half or upwards] of the land to which the proceedings relate, may apply to the court for an order staying such proceedings;
(ii) The court may upon such application make an order staying the proceedings as regards the whole or any part, not being an undivided share, of the land;
(iii) As from the date of such order the said enactments shall cease to apply to the land affected by the order and the provisions of this Part of this Schedule shall apply thereto;
(iv) The court may by such order appoint trustees of the land and the same shall by virtue of this Act vest (free as aforesaid) in the trustees as joint tenants upon the statutory trusts;
(v) The court may order that the costs of the proceedings and of the application shall be raised by the trustees, by legal mortgage of the land or any part thereof, and paid either wholly or partially into court or to the trustees;
(vi) The court may act on such evidence as appears to be sufficient, without investigating the title to the land.
(12) In
this Part of this Schedule “incumbrance” does not include [a legal
rentcharge affecting the entirety,] land tax,
tithe rentcharge, or any similar
charge on the land not created by an
instrument.
2. Where undivided
shares in land, created before the commencement of this Act, fall into
possession after such commencement, and the
land is not settled land when the
shares fall into possession, the personal representatives (subject to their
rights and powers for
purposes of administration) or other estate owners in whom
the entirety of the land is vested shall, by an assent or a conveyance,
give
effect to the foregoing provisions of this Part of this Schedule in like manner
as if the shares had fallen into possession
immediately before the commencement
of this Act, and in the meantime the land shall be held on the statutory
trusts.
3. This Part of this
Schedule shall not save as hereinafter mentioned apply to party structures and
open spaces within the meaning of
the next succeeding Part of this
Schedule.
[4. Where, immediately
before the commencement of this Act, there are two or more tenants for life of
full age entitled under the same
settlement in undivided shares, and, after the
cesser of all their interests in the income of the settled land, the entirety of
the
land is limited so as to devolve together (not in undivided shares), their
interests shall, but without prejudice to any beneficial
interest, be converted
into a joint tenancy, and the joint tenants and the survivor of them shall,
until the said cesser occurs,
constitute the tenant for life for the purposes of
the Settled Land Act, 1925, and this Act.]
PART V.
PROVISIONS AS TO PARTY STRUCTURES AND OPEN SPACES
1.
Where, immediately before the commencement of this Act, a party wall or other
party structure is held in undivided shares, the ownership
thereof shall be
deemed to be severed vertically as between the respective owners, and the owner
of each part shall have such rights
to support and of user over the rest of the
structure as may be requisite for conferring rights corresponding to those
subsisting
at the commencement of this
Act.
2. Where, immediately
before the commencement of this Act, an open space of land (with or without any
building used in common for the
purposes of any adjoining land) is held in
undivided shares, in right whereof each owner has rights of access and user over
the open
space, the ownership thereof shall vest in the Public Trustee on the
statutory trusts which shall be executed only with the leave
of the court, and,
subject to any order of the court to the contrary, each person who would have
been a tenant in common shall, until
the open space is conveyed to a purchaser,
have rights of access and user over the open space corresponding to those which
would
have subsisted if the tenancy in common had remained
subsisting.
3. Any person
interested may apply to the court for an order declaring the rights and
interests under this Part of this Schedule, of
the persons interested in any
such party structure or open space, or generally may apply in relation to the
provisions of this Part
of this Schedule, and the court may make such order as
it thinks fit.
PART VI.
CONVERSION OF TENANCIES BY ENTIRETIES INTO JOINT TENANCIES
Every tenancy by entireties existing immediately before
the commencement of this Act shall, but without prejudice to any beneficial
interest, as from such commencement be converted into a joint tenancy.
PART VII.
CONVERSION OF EXISTING FREEHOLD MORTGAGES INTO
MORTGAGES BY DEMISE
1. All land,
which immediately before the commencement of this Act, was vested in a first or
only mortgagee for an estate in fee simple
in possession, whether legal or
equitable, shall, from and after the commencement of this Act, vest in the first
or only mortgagee
for a term of three thousand years from such commencement,
without impeachment of waste, but subject to a provision for cesser
corresponding
to the right of redemption which, at such commencement, was
subsisting with respect to the fee
simple.
2. All land, which
immediately before the commencement of this Act, was vested in a second or
subsequent mortgagee for an estate in
fee simple in possession, whether legal or
equitable, shall, from and after the commencement of this Act, vest in the
second or subsequent
mortgagee for a term one day longer than the term vested in
the first or other mortgagee whose security ranks immediately before
that of
such second or subsequent mortgagee, without impeachment of waste, but subject
to the term or terms vested in such first
or other prior mortgagee and subject
to a provision for cesser corresponding to the right of redemption which, at
such commencement,
was subsisting with respect to the fee
simple.
3. The estate in fee
simple which, immediately before the commencement of this Act, was vested in any
such mortgagee shall, from and
after such commencement, vest in the mortgagor or
tenant for life, statutory owner, trustee for sale, personal representative, or
other person of full age who, if all money owing on the security of the mortgage
and all other mortgages or charges (if any) had
been discharged at the
commencement of this Act, would have been entitled to have the fee simple
conveyed to him, but subject to
any mortgage term created by this Part of this
Schedule or otherwise and to the money secured by any such mortgage or
charge.
4. If a submortgage by
conveyance of the fee simple is subsisting immediately before the commencement
of this Act, the principal mortgagee
shall take the principal term created by
paragraphs 1 or 2 of this Part of this Schedule (as the case may require) and
the submortgagee
shall take a derivative term less by one day than the term so
created, without impeachment of waste, subject to a provision for cesser
corresponding to the right of redemption subsisting under the
submortgage.
5. This Part of
this Schedule applies to land enfranchised by statute as well as to land which
was freehold before the commencement
of this Act, and (save where expressly
excepted) whether or not the land is registered under the Land Registration Act,
1925, or
the mortgage is made by way of trust for sale or
otherwise.
6. A mortgage
affecting a legal estate made before the commencement of this Act which is not
protected, either by a deposit of documents
of title relating to the legal
estate or by registration as a land charge, shall not, as against a purchaser in good faith without notice thereof,
obtain any benefit by reason of being converted into a legal mortgage by this
Schedule,
but shall, in favour of such purchaser, be deemed to remain an
equitable interest.
This paragraph does not apply to mortgages or charges
registered or protected under the Land Registration Act, 1925, or to mortgages
or charges registered in a local deeds
register.
7. Nothing in this
Part of this Schedule shall affect priorities or the right of any mortgagee to
retain possession of documents, nor
affect his title to or rights over any
fixtures or chattels personal comprised in the
mortgage.
8. This Part of this
Schedule does not apply unless a right of redemption is subsisting immediately
before the commencement of this
Act.
PART VIII.
CONVERSION OF EXISTING LEASEHOLD MORTGAGES INTO
MORTGAGES BY SUBDEMISE
1. All leasehold
land, which immediately before the commencement of this Act, was vested in a
first or only mortgagee by way of assignment
of a term of years absolute shall,
from and after the commencement of this Act, vest in the first or only mortgagee
for a term equal
to the term assigned by the mortgage, less the last ten days
thereof, but subject to a provision for cesser corresponding to the
right of
redemption which at such commencement was subsisting with respect to the term
assigned.
2. All leasehold land,
which immediately before the commencement of this Act, was vested in a second or
subsequent mortgagee by way
of assignment of a term of years absolute (whether
legal or equitable) shall, from and after the commencement of this Act, vest in
the second or subsequent mortgagee for a term one day longer than the term
vested in the first or other mortgagee whose security
ranks immediately before
that of such second or subsequent mortgagee if the length of the last-mentioned
term permits, and in any
case for a term less by one day at least than the term
assigned by the mortgage, but subject to the term or terms vested in such
first
or other prior mortgagee, and subject to a provision for cesser corresponding to
the right of redemption which, at the commencement
of this Act, was subsisting
with respect to the term assigned by the
mortgage.
3. The term of years
absolute which was assigned by any such mortgage shall, from and after the
commencement of this Act, vest in the
mortgagor or tenant for life, statutory
owner, trustee for sale, personal representative, or other person of full age
who, if all
the money owing on the security of the mortgage and all other
mortgages or charges, if any, had been discharged at the commencement
of this
Act, would have been entitled to have the term assigned or surrendered to him,
but subject to any derivative mortgage term
created by this Part of this
Schedule or otherwise and to the money secured by any such mortgage or
charge.
4. If a submortgage by
assignment of a term is subsisting immediately before the commencement of this
Act, the principal mortgagee
shall take the principal derivative term created by
paragraphs 1 or 2 of this Part of this Schedule or the derivative term created
by his mortgage (as the case may require), and the submortgagee shall take a
derivative term less by one day than the term so vested
in the principal
mortgagee, subject to a provision for cesser corresponding to the right of
redemption subsisting under the
submortgage.
5. A mortgage
affecting a legal estate made before the commencement of this Act which is not
protected, either by a deposit of documents
of title relating to the legal
estate or by registration as a land charge shall not, as against a purchaser in
good faith without
notice thereof, obtain any benefit by reason of being
converted into a legal mortgage by this Schedule, but shall, in favour of such
purchaser, be deemed to remain an equitable interest.
This paragraph does
not apply to mortgages or charges registered or protected under the Land
Registration Act, 1925, or to mortgages
or charges registered in a local deeds
register.
6. This Part of this
Schedule applies to perpetually renewable leaseholds, and to leaseholds for
lives, which are by statute converted
into long terms, with the following
variations, namely:-
(a) The term to be taken by a first or only mortgagee shall be ten days less than the term created by such statute:
(b) The term to be taken by a second or subsequent mortgagee shall be one day longer than the term vested in the first or other mortgagee whose security ranks immediately before that of the second or subsequent mortgagee, if the length of the last-mentioned term permits, and in any case for a term less by one day at least than the term created by such statute:
(c) The term created by such statute shall, from and after the commencement of this Act, vest in the mortgagor or tenant for life, statutory owner, trustee for sale, personal representative, or other person of full age, who if all the money owing on the security of the mortgage and all other mortgages or charges, if any, had been discharged at the commencement of this Act, would have been entitled to have the term assigned or surrendered to him, but subject to any derivative mortgage term created by this Part of this Schedule or otherwise and to the money secured by any such mortgage or charge.
7.
This Part of this Schedule applies (save where expressly excepted) whether or
not the leasehold land is registered under the Land
Registration Act, 1925, or
the mortgage is made by way of trust for sale or
otherwise.
8. Nothing in this
Part of this Schedule shall affect priorities or the right of any mortgagee to
retain possession of documents, nor
affect his title to or rights over any
fixtures or chattels personal comprised in the mortgage, but this Part of this
Schedule does
not apply unless a right of redemption is subsisting at the
commencement of this Act.
________________
SECOND SCHEDULE |
Sects. 76 and 77.
|
IMPLIED COVENANTS
PART I.
COVENANT IMPLIED IN A
CONVEYANCE FOR VALUABLE CONSIDERATION, OTHER THAN A MORTGAGE, BY A PERSON WHO
CONVEYS AND IS EXPRESSED TO CONVEY
AS BENEFICIAL OWNER.
That,
notwithstanding anything by the person who so conveys or any one through whom he
derives title otherwise than by purchase for
value, made, done, executed, or
omitted, or knowingly suffered, the person who so conveys has, with the
concurrence of every other
person, if any, conveying by his direction, full
power to convey the subject-matter expressed to be conveyed, subject as, if so
expressed,
and in the manner in which, it is expressed to be conveyed, and that,
notwithstanding anything as aforesaid, that subject-matter
shall remain to and
be quietly entered upon, received, and held, occupied, enjoyed, and taken, by
the person to whom the conveyance
is expressed to be made, and any person
deriving title under him, and the benefit thereof shall be received and taken
accordingly,
without any lawful interruption or disturbance by the person who so
conveys or any person conveying by his direction, or rightfully
claiming or to
claim by, through, under, or in trust for the person who so conveys, or any
person conveying by his direction, or
by, through, or under any one (not being a
person claiming in respect of an estate or interest subject whereto the
conveyance is
expressly made), through whom the person who so conveys derives
title, otherwise than by purchase for value:
And that, freed and
discharged from, or otherwise by the person who so conveys sufficiently
indemnified against, all such estates,
encumbrances, claims and demands, other
than those subject to which the conveyance is expressly made, as, either before
or after
the date of the conveyance, have been or shall be made, occasioned, or
suffered by that person or by any person conveying by his
direction, or by any
person rightfully claiming by, through, under, or in trust for the person who so
conveys, or by, through, or
under any person conveying by his direction, by,
through, or under any one through whom the person who so conveys derives title,
otherwise than by purchase for value:
And further, that the person who so
conveys, and any person conveying by his direction, and every other person
having or rightfully
claiming any estate or interest in the subject-matter of
conveyance, other than an estate or interest subject whereto the conveyance
is
expressly made, by, through, under, or in trust for the person who so conveys,
or by, through, or under any person conveying by
his direction, or by, through,
or under any one through whom the person who so conveys derives title, otherwise
than by purchase
for value, will, from time to time and at all times after the
date of the conveyance, on the request and at the cost of any person
to whom the
conveyance is expressed to be made, or of any person deriving title under him,
execute and do all such lawful assurances
and things for further or more
perfectly assuring the subject-matter of the conveyance to the person to whom
the conveyance is made,
and to those deriving title under him, subject as, if so
expressed, and in the manner in which the conveyance is expressed to be
made, as
by him or them or any of them shall be reasonably required.
In the above
covenant a purchase for value shall not be deemed to include a conveyance in
consideration of marriage.
PART II.
FURTHER COVENANT IMPLIED
IN A CONVEYANCE OF LEASEHOLD PROPERTY FOR VALUABLE CONSIDERATION, OTHER THAN A
MORTGAGE, BY A PERSON WHO
CONVEYS AND IS EXPRESSED TO CONVEY AS BENEFICIAL
OWNER
That, notwithstanding anything by the person who so conveys,
or any one through whom he derives title, otherwise than by purchase
for value,
made, done, executed, or omitted, or knowingly suffered, the lease or grant
creating the term or estate for which the
land is conveyed is, at the time of
conveyance, a good, valid, and effectual lease or grant of the property
conveyed, and is in full
force, unforfeited, unsurrendered, and has in nowise
become void or voidable, and that, notwithstanding anything as aforesaid, all
the rents reserved by, and all the covenants, conditions, and agreements
contained in, the lease or grant, and on the part of the
lessee or grantee and
the persons deriving title under him to be paid, observed, and performed, have
been paid, observed, and performed
up to the time of conveyance.
In the
above covenant a purchase for value shall not be deemed to include a conveyance
in consideration of marriage.
PART III.
COVENANT IMPLIED IN A
CONVEYANCE BY WAY OF MORTGAGE BY A PERSON WHO CONVEYS AND IS EXPRESSED TO CONVEY
AS BENEFICIAL OWNER.
That the person who so conveys, has, with the
concurrence of every other person, if any, conveying by his direction, full
power to
convey the subject-matter expressed to be conveyed by him, subject as,
if so expressed, and in the manner in which it is expressed
to be
conveyed:
And also that, if default is made in payment of the money
intended to be secured by the conveyance, or any interest thereon, or any
part
of that money or interest, contrary to any provision in the conveyance, it shall
be lawful for the person to whom the conveyance
is expressed to be made, and the
persons deriving title under him, to enter into and upon, or receive, and
thenceforth quietly hold,
occupy, and enjoy or take and have, the subject-matter
expressed to be conveyed, or any part thereof, without any lawful interruption
or disturbance by the person who so conveys, or any person conveying by his
direction, or any other person (not being a person claiming
in respect of an
estate or interest subject whereto the conveyance is expressly made):
And
that, freed and discharged from, or otherwise by the person who so conveys
sufficiently indemnified against all estates, encumbrances,
claims, and demands
whatever, other than those subject whereto the conveyance is expressly
made:
And further, that the person who so conveys and every person
conveying by his direction, and every person deriving title under any
of them,
and every other person having or rightfully claiming any estate or interest in
the subject-matter of conveyance, or any
part thereof, other than an estate or
interest subject whereto the conveyance is expressly made, will from time to
time and at all
times, on the request of any person to whom the conveyance is
expressed to be made, or of any person deriving title under him, but,
as long as
any right of redemption exists under the conveyance, pat the cost of the person
so conveying, or of those deriving title
under him, and afterwards at the cost
of the person making the request, execute and do all such lawful assurances and
things for
further or more perfectly assuring the subject-matter of conveyance
and every part thereof to the person to whom the conveyance is
made, and to
those deriving title under him, subject as, if so expressed, and in the manner
in which the conveyance is expressed
to be made, as by him or them or any of
them shall be reasonably required.
The
above covenant in the case of a charge shall have effect as if for references to
“conveys”, “conveyed”
and “conveyance” there
were substituted respectively references to “charges”,
“charged” and “charge.”
PART IV.
COVENANT IMPLIED IN A
CONVEYANCE BY WAY OF MORTGAGE OF FREEHOLD PROPERTY SUBJECT TO A RENT OR OF
LEASEHOLD PROPERTY BY A PERSON WHO
CONVEYS AND IS EXPRESSED TO CONVEY AS
BENEFICIAL OWNER.
That the lease or grant creating the term or
estate for which the land is held is, at the time of conveyance, a good, valid,
and effectual
lease or grant of the land conveyed and is in full force,
unforfeited, and unsurrendered and has in nowise become void or voidable,
and
that all the rents reserved by, and all the covenants, conditions, and
agreements contained in, the lease or grant, and on the
part of the lessee or
grantee and the persons deriving title under him to be paid, observed, and
performed, :have been paid, observed,
and performed up to the time of
conveyance:
And also that the person so conveying, or the persons
deriving title under him, will at all times, as long as any money remains owing
on the security of the conveyance, pay, observe, and perform, or cause to be
paid, observed, and performed all the rents reserved
by, and all the covenants,
conditions, and agreements contained in, the lease or grant, and on the part of
the lessee or grantee
and the persons deriving title under him to be paid,
observed, and performed, and will keep the person to whom the conveyance is
made, and those deriving title under him, indemnified against all actions,
proceedings, costs, charges, damages, claims and demands,
if any, to be incurred
or sustained by him or them by reason of the non-payment of such rent or the
non-observance or non-performance
of such covenants, conditions, and agreements,
or any of them.
The above covenant in
the case of a charge shall have effect as if for references to
“conveys”, “conveyed”
and “conveyance” there
were substituted respectively references to “charges,”
“charged” and “charge.”
PART V.
COVENANT IMPLIED IN A
CONVEYANCE BY WAY OF SETTLEMENT, BY A PERSON WHO CONVEYS AND IS EXPRESSED TO
CONVEY AS SETTLOR.
That the person so conveying, and every person
deriving title under him by deed or act or operation of law in his lifetime
subsequent
to that conveyance, or by testamentary disposition or devolution in
law, on his death, will, from time to time, and at all times,
after the date of
that conveyance, at the request and cost of any person deriving title
thereunder, execute and do all such lawful
assurances and things for further or
more perfectly assuring the subject-matter of the conveyance to the persons to
whom the conveyance
is made and those deriving title under them, as by them or
any of them shall be reasonably required, subject as, if so expressed,
and in
the manner in which the conveyance is expressed to be made.
PART VI.
COVENANT IMPLIED IN ANY
CONVEYANCE, BY EVERY PERSON WHO CONVEYS AND IS EXPRESSED TO CONVEY AS TRUSTEE OR
MORTGAGEE, OR AS PERSONAL
REPRESENTATIVE OF A DECEASED PERSON, OR AS COMMITTEE
OF LUNATIC OR AS RECEIVER OF DEFECTIVE OR UNDER AN ORDER OF THE
COURT.
That the person so conveying has not executed or done, or
knowingly suffered, or been party or privy to, any deed or thing, whereby
or by
means whereof the subject-matter of the conveyance, or any part thereof, is or
may be impeached, charged, affected, or encumbered;
in title, estate, or
otherwise, or whereby or by means whereof the person who so conveys is in
anywise hindered from conveying the
subject-matter of the conveyance, or any
part thereof, in the manner in which it is expressed to be
conveyed.
The foregoing covenant may
be implied in an assent in like manner as in a conveyance by
deed.
PART VII.
COVENANT IMPLIED IN A
CONVEYANCE FOR VALUABLE
CONSIDERATION,
OTHER THAN A
MORTGAGE, OF THE ENTIRETY OF LAND AFFECTED BY
A
RENTCHARGE
That the
grantees or the persons deriving title under them will at all times, from the
date of the conveyance or other date therein
stated, duly pay the said
rentcharge and observe and perform all the covenants, agreements and conditions
contained in the deed or
other document creating the rent charge, and
thenceforth on the part of the owner of the land to be observed and
performed:
And also will at all times, from the date aforesaid, save
harmless and keep indemnified the conveying parties and their respective
estates
and effects, from and against all proceedings, costs, claims and expenses on
account of any omission to pay the said rentcharge
or any part thereof, or any
breach of any of the said covenants, agreements and conditions.
PART VIII.
COVENANTS IMPLIED IN A
CONVEYANCE FOR VALUABLE CONSIDERATION, OTHER THAN A MORTGAGE, OR PART OF LAND
AFFECTED BY A RENTCHARGE, SUBJECT
TO A PART (NOT LEGALLY APPORTIONED) OF THAT
RENTCHARGE.
(i) That the grantees, or the persons deriving title
under them, will at all times, from the date of the conveyance or other date
therein stated, pay the apportioned rent and observe and perform all the
covenants (other than the covenant to pay the entire rent)
and conditions
contained in the deed or other document creating the rent charge, so far as the
same relate to the land conveyed:
And also will at all times, from the
date aforesaid, save harmless and keep indemnified the conveying parties and
their respective
estates and effects, from and against all proceedings, costs,
claims and expenses on account of any omission to pay the said apportioned
rent,
or any breach of any of the said covenants and conditions, so far as the same
relate as aforesaid.
(ii) That the conveying parties, or the persons
deriving title under them, will at all times, from the date of the conveyance or
other
date therein stated, pay the balance of the rentcharge (after deducting
the apportioned rent aforesaid, and any other rents similarly
apportioned in
respect of land not retained), and observe and perform all the covenants, other
than the covenant to pay the entire
rent, and conditions contained in the deed
or other document creating the rent charge, so far as the same relate to the
land not
included in the conveyance and remaining vested in the
covenantors:
And also will at all times, from the date aforesaid, save
harmless and keep indemnified the grantees and their estates and effects,
from
and against all proceedings, costs, claims and expenses on account of any
omission to pay the aforesaid balance of the rentcharge,
or any breach of any of
the said covenants and conditions so far as they relate as aforesaid.
PART IX.
COVENANT 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
That the assignees, or the persons deriving title under
them, will at all times, from the date of the conveyance or other date therein
stated, duly pay all rent becoming due under the lease creating the term or
interest for which the land is conveyed, and observe
and perform all the
covenants, agreements and conditions therein contained and thenceforth on the
part of the lessees to be observed
and performed.
And also will at all
times, from the date aforesaid, save harmless and keep indemnified the conveying
parties and their estates and
effects, from and against all proceedings, costs,
claims and expenses on account of any omission to pay the said rent or any
breach
of any of the said covenants, agreements and conditions.
PART X.
COVENANTS IMPLIED IN A
CONVEYANCE FOR VALUABLE CONSIDERATION, OTHER THAN A MORTGAGE, OR PART OF THE
LAND COMPRISED IN A LEASE, FOR
THE RESIDUE OF THE TERM OR INTEREST CREATED BY
THE LEASE, SUBJECT TO A PART (NOT LEGALLY APPORTIONED) OF THAT
RENT.
(i) That the assignees, or the persons deriving title under
them, will at all times, from the date of the conveyance or other date
therein
stated, pay the apportioned rent and observe and perform all the covenants,
other than the covenant to pay the entire rent,
agreements and conditions
contained in the lease creating the term or interest for which the land is
conveyed, and thenceforth on
the part of the lessees to be observed and
performed, so far as the same relate to the land conveyed:
And also will
at all times from the date aforesaid save harmless and keep indemnified, the
conveying parties and their respective
estates and effects, from and against all
proceedings, costs, claims and expenses on account of any omission to pay the
said apportioned
rent or any breach of any of the said covenants, agreements and
conditions so far as the same relate as aforesaid.
(ii) That the
conveying parties, or the persons deriving title under them, will at all times,
from the date of the conveyance, or
other date therein stated, pay the balance
of the rent (after deducting the apportioned rent aforesaid and any other rents
similarly
apportioned in :respect of land not retained) and observe and perform
all the covenants, other than the covenant to pay the entire
rent, agreements
and conditions contained in the lease and on the part of the lessees to be
observed and performed so far as the
same relate to the land demised (other than
the land comprised in the conveyance) and remaining vested in the
covenantors:
And also will at all times, from the date aforesaid, save
harmless and keep indemnified, the assignees and their estates and effects,
from
and against all proceedings, costs, claims and expenses on account of any
omission to pay the aforesaid balance of the rent
or any breach of any of the
said covenants, agreements and conditions so far as they relate as
aforesaid
________________
|
Sects. 114 and
115.
|
THIRD
SCHEDULE
|
FORMS OF TRANSFER AND DISCHARGE OF MORTGAGES.
FORM NO. 1.
FORM OF TRANSFER OF MORTGAGE.
This Transfer of Mortgage made the ............... day of
.............. 19 ....., between M. of
[etc.] of the one part and T. of
[etc.], of the other part, supplemental to a Mortgage dated [etc.], and made
between [etc.], and to a Further Charge dated [etc.],
and made between [etc.]
affecting etc. (here state short particulars
of the mortgaged property).
WITNESSETH that in consideration of
the sums of £ .........and £ ............... (for interest) now paid
by T. to
M., being the respective amounts of
the mortgage money and interest owing in respect of the said mortgage and
further charge (the receipt
of which sums
M. hereby acknowledges)
M., as mortgagee, hereby conveys and
transfers to T. the benefit of the
said mortgage and further charge.
In witness, etc.
-------------
FORM NO. 2.
FORM OF RECEIPT ON DISCHARGE OF A MORTGAGE.
I, A.B.,
of [etc] hereby acknowledge that I
have this ............... day of .......... 19 ........., received the sum of
£ ................
representing the [aggregate] [balance remaining owing in
respect of the] principal money secured by the within [above] written [annexed]
mortgage [and by a further charge dated, [etc],
or otherwise as required] together
with all interest and costs, the payment having been made by
C.D. of [etc.] and
E.F. of [etc.]
As witness,
etc.
NOTE.-If the persons paying are not entitled to the equity of
redemption state that they are paying the money out of a fund applicable
to the
discharge of the mortgage.
_____________
FOURTH SCHEDULE.
FORMS RELATING TO STATUTORY CHARGES OR MORTGAGES
OF FREEHOLD OR LEASEHOLD LAND.
|
FORM
No.1.
|
Sect. 117.
|
STATUTORY CHARGE BY WAY OF LEGAL MORTGAGE.
This Legal Charge made by way of Statutory Mortgage the
..................... day of ................ 19.........
between A. of [etc.] of the one part
and M. of [etc.] of the other part
Witnesseth that in consideration of the sum of £...... now paid to
A. by
M. of which sum
A. hereby acknowledges the receipt
A. As Mortgagor and As Beneficial
Owner hereby charges by way of legal mortgage All That [etc.] with the payment
to M. on the .......................
day of ................... 19 ..., of the principal sum of £ .............
as the mortgage money
with interest thereon a the rate of.......... per centum
per annum.
In witness
etc.
Note. Variations in this
and the subsequent forms in this Schedule to be made, is required, for leasehold
land or for giving effect to
special arrangements. M. will be in the same
position as if the Charge had been effected by a demise of freeholds or a
subdemise
of leaseholds.
------------
FORM No.2. |
Sect. 118.
|
STATUTORY TRANSFER, MORTGAGOR NOT JOINING.
This Transfer of Mortgage made by way of statutory
transfer the .................. day of .............. 19 ........, between
M. of [etc.] of the one part and
T. of [etc.] of the other part
supplemental to a legal charge made by way of statutory mortgage dated [etc.]
and made [etc.] Witnesseth
that in consideration of the sum of £
................ now paid to M. by
T. (being the aggregate amount of
£ .................... mortgage money and £ ..........................
interest due in respect
of the said legal charge of which sum
M. hereby acknowledges the receipt)
M. as Mortgagee hereby conveys and
transfers to T. the benefit of the
said legal charge.
In witness, etc.
NOTE.-This and the next two
forms also apply to a transfer of a statutory mortgage made before the
commencement of this Act, which
will then be referred to as a mortgage instead
of a legal charge.
-------------
|
Sect. 118.
|
FORM No.3.
|
STATUTORY TRANSFER, A COVENANTOR JOINING.
This Transfer of Mortgage made by way of statutory
transfer the ................ day of ....................... 19 ..........,
between
A. of [etc.] of the first
part B. of [etc.] of the second part
and C. of [etc.] of the third part
Supplemental to a Legal Charge made by way of statutory mortgage dated [etc.]
and made [etc.] Witnesseth
that in consideration of the sum of £
....................... now paid by A.
to C. (being the mortgage money due in
respect of the said Legal Charge no interest being now due or payable thereon of
which sum A. hereby acknowledges the
receipt) A. as Mortgagee with the
concurrence of B. who joins herein as
covenantor hereby conveys and transfers to
C. the benefit of the said Legal
Charge.
In witness, etc.
-----------
|
Sects. 117 and
118.
|
FORM No.4.
|
STATUTORY TRANSFER AND MORTGAGE COMBINED.
This Transfer and Legal Charge is made by way of statutory
transfer and mortgage the ............... day of .............. 19 ........,
between A. of [etc.] of the first part
B. of [etc.] of the second part and
C. of [etc] of the third part
Supplemental to a Legal Charge made by way of statutory mortgage dated [etc.]
and made [etc.] Whereas
a principal sum of £ ................. only remains
due in respect of the said Legal Charge as the mortgage money and no interest
is
now due thereon And Whereas B. is
seised in fee simple of the land comprised in the said Legal Charge subject to
that Charge.
Now this Deed Witnesseth as
follows:-
1. In consideration of
the sum of £ ............... now paid to
A. by
C. (the receipt and payment of which
sum A. &
B. hereby respectively acknowledge)*
A. as mortgagee hereby conveys and
transfers to C. the benefit of the
said Legal Charge.
2. For the
consideration aforesaid B. as
beneficial owner hereby charges by way of legal mortgage All the premises
comprised in the said Legal Charge with the payment
to
C. on the ..................... day of
................. 19 ......, of the sum of £ ...................as the
mortgage money with
interest thereon at the rate of per centum per annum In
Witness etc. [or in the case of a further advance after "acknowledge" at
*
insert "and of the further sum of
£ ..................... now paid by
C. to
B. of which sum
B. hereby acknowledges the receipt"
also at * before "as beneficial owner"
insert "as mortgagor and"
as well as where B. is not the original
mortgagor. And after "of"
at *
insert "the sums of £
........................... and £..........making
together"].
NOTE.-Variations to
be made, as required, in case of the deed being by endorsement, or in respect of
any other thing.
-----------
|
Sect. 120
|
FORM No.5.
|
RECEIPT
ON DISCHARGE OF STATUTORY LEGAL
CHARGE
OR MORTGAGE.
I A.B. of [etc.]
hereby acknowledge that I have this .................. day of
..................... 19 ....... received the sum of £
.............
representing the [aggregate] [balance remaining owing in respect of the]
mortgage money secured by the [annexed] within
[above] written statutory legal
charge [or statutory mortgage] [and by
the further statutory charge dated etc. or
otherwise as required] together with all interest and costs the payment
having been made by C.D. of [etc.] and
E.F. of [etc.].
As witness
etc.
NOTE - If the persons paying are not entitled to the equity of
redemption state that they are paying the money out of a fund applicable
to the
discharge of the statutory legal charge or mortgage.
__________
FIFTH SCHEDULE |
Section
206
|
FORMS OF INSTRUMENTS.
FORM No. 1.
CHARGE BY WAY OF LEGAL MORTGAGE.
This Legal Charge is made [etc.] between
A. of [etc.] of the one part and
B. of [etc.] of the other
part.
[Recite the title of A. to the
freeholds or leaseholds in the Schedule and agreement for the loan by
B.]
Now in consideration of the sum of ............... pounds now
paid by B. to A. (the receipt etc.)
this Deed Witnesseth as
follows:-
1. A. hereby covenants
with B. to pay [Add the requisite covenant
principal and
interest].
2.
A. as Beneficial Owner hereby charges
by way of legal mortgage All and Singular the property mentioned in the Schedule
hereto with the
payment to B. of the
principal money, interest, and other money hereby covenanted to be paid by
A.
3.
[Add covenant to insure buildings and any
other provisions desired.]
In witness [etc.]
[Add
Schedule].
NOTE.-B. will
be in the same position as if a mortgage had been effected by a demise of
freeholds or a subdemise of leaseholds.
------------
FORM No. 2.
FURTHER CHARGE BY WAY OF LEGAL MORTGAGE.
This Further Charge made [etc.] between [etc.]
[same parties as foregoing legal
charge] Supplemental to a Legal Charge (hereinafter called the Principal
Deed) dated [etc.] and made between the same parties as are parties
hereto and
in the same order for securing the sum of £ .......... and interest at per
centum per annum on [freehold] [leasehold]
land at [etc.].
Witnesseth as
follows:-
1. In consideration of
the further sum of £ ............ now paid to A. by B.
[add receipt and covenant to pay the further
advance and interest].
2.
For the consideration aforesaid A. as Beneficial Owner hereby charges by way of
legal mortgage the premises comprised in the Principal
Deed with the payment to
B. of the principal money and interest hereinbefore covenanted to be paid as
well as the principal money,
interest, and other money secured by the Principal
Deed.
In witness [etc.].
------------
FORM No. 3.
CONVEYANCE ON SALE, LEGAL CHARGEES OR MORTGAGEES CONCURRING.
This Conveyance is made [etc.] between
A. of [etc.] (hereinafter called the
Vendor) of the first part B. of [etc.]
and C. of [etc.] (hereinafter called
the Mortgagees) of the second part and
D. of [etc.] (hereinafter called the
Purchaser) of the third part [Recite the
Charge by way of legal mortgage, the state of the debt, the agreement for sale
and for the mortgagees to
concur].
Now in the
consideration of the sum of £ paid by the Purchaser by the direction of
the Vendor to the Mortgagees (the receipt
etc.) and of the sum of £ ........... paid by the Purchaser to the
Vendor (the receipt etc.) this Deed
witnesseth as follows :-
1. The Vendor As Beneficial Owner hereby conveys and the Mortgagees As Mortgagees hereby [surrender and] release unto the Purchaser All That etc.
To Hold unto the Purchaser [in fee simple] discharged from all claims under the recited Legal Charge [Mortgage and to the intent that the term subsisting thereunder shall as respects the premises conveyed merge and be extinguished].
2. [Add any necessary acknowledgments and undertakings with respect to documents not handed over which relate to the title and any other special provisions.]
In
witness etc.
---------------
FORM No. 4.
CONVEYANCE ON SALE BY LEGAL CHARGEES OR MORTGAGEES.
This Conveyance is made [etc.] between
A. of [etc.] and
B. of [etc.] (hereinafter called the
Vendors) of the one part and C. of
[etc.] (hereinafter called the Purchaser) of the other part
[Recite the Legal Charge or the Mortgage,
with or without a deed converting the Mortgage into a legal charge and the
agreement for
sale].
Now in consideration of the sum of £
paid by the Purchaser to the Vendors (the receipt etc.) this Deed witnesseth
as follows:-
1. The Vendors As Mortgagees in exercise of the power for this purpose conferred on them by the Law of Property Act, 1925, and of all other powers hereby convey unto the Purchaser All Those etc.
To Hold unto the Purchaser [in fee simple] discharged from all right of redemption and claims under the recited Legal Charge [Mortgage].
2. [Add any necessary acknowledgments as to documents retained and any other special provisions.]
In witness etc.
--------------
FORM No. 5.
CONVEYANCE BY PERSONAL REPRESENTATIVES OF A FEE SIMPLE RESERVING THEREOUT A TERM OF YEARS ABSOLUTE FOR GIVING LEGAL EFFECT TO A MORTGAGE.
This Conveyance is made [etc.] between
James Cook of [etc.] and
Harry Cook of [etc.] of the first
part, L. of [etc.] and
M. of [etc.] of the second part, and
Thomas Wilson of [etc.] of the third
part.
Whereas on the first day of October 1927 Letters of Administration
to the real and personal estate of Henry
Wilson, late of [etc.], who died [etc.], were granted by the principal
probate registry to James Cook and
Harry Cook.
And whereas
Henry Wilson was at his death solely
entitled to the hereditaments hereinafter conveyed for an estate in fee
simple.
Now this Deed witnesseth that
James Cook and
Harry Cook, as Personal
Representatives of the said Henry
Wilson deceased, hereby convey unto the said
Thomas Wilson.
All that
[etc.]
Reserving out of the premises nevertheless unto
L. and
M. a term of eight hundred years,
without impeachment of waste, to commence from the date hereof but subject to
cesser on redemption
by Thomas Wilson
under a Mortgage dated [etc.] and made between [etc.] on payment of the sum of
five thousand pounds, and interest thereon at the
rate of five pounds per centum
per annum.
To hold the premises subject to the said term unto
Thomas Wilson [in fee
simple].
In witness [etc.]
NOTE.-The reservation will be valid at
law, though the deed may not be executed by
Thomas Wilson.
------------
FORM No. 6.
CONVEYANCE ON SALE RESERVING MINERALS AND RIGHT TO WORK AND A PERPETUAL RENTCHARGE.
This Conveyance made [etc.] between
A. of [etc.] of the one part and
B. of [etc.] of the other
part.
Witnesseth that in consideration of the sum of pounds now paid by
B. to
A. (the receipt, etc.) and of the
rentcharge hereinafter reserved A. as
Beneficial Owner hereby conveys unto
B.
All those [etc.] except and
reserving unto A. in fee simple all mines and minerals Together with full power
to work [etc.]
To hold (except and reserved as aforesaid)
unto B. in fee simple reserving out of
the premises to A. in fee simple a
perpetual yearly rentcharge of pounds, to be for ever charged upon and issuing
out of the premises hereby conveyed
clear of all deductions (except landlord's
property tax) and payable by equal half-yearly payments on [etc.], the first
payment to
be made on [etc.]
And
B. hereby covenants with
A., and the persons deriving title
under him to pay him to pay [etc.]
In witness [etc.]
NOTE.-The
reservations will be valid at law even if the deed is not executed by
B.
------------
FORM No. 7.
DEED FOR CONFIRMING LEGAL ESTATES WHICH HAVE NOT BEEN VALIDLY CREATED.
To All to whom this Further Assurance shall come
A.B. of etc. sends greeting this
day of 19 .
[Recite the invalid
dealings, giving short particulars in schedules of the Conveyances, Grants and
Leases which purport to transfer
or create legal estates, that
A.B.
is entitled in fee simple or for a term of
years absolute in the land affected and desires to confirm the
dealings.]
Now these presents witness and the said
A.B. hereby declares that his legal
estate in the premise affected to which he is entitled as aforesaid shall go and
devolve in such
manner as may be requisite for legally confirming the interests
capable of subsisting as legal estates expressed to have been transferred
or
created by the documents mentioned in the schedules hereto or any of those
documents and any dealings with the interests so confirmed
which would have been
legal if those interests had in the first instance been validly transferred or
created:
Provided always that subject to such confirmation of interests and dealings nothing herein contained shall affect the legal estate of the said A.B. in the premises.
In witness, etc.
[Add Schedule.]
NOTE - This
form takes place of a conveyance to uses for confirming past transactions and is
applicable to a term of years absolute
as well as fee simple.
-------------
FORM No. 8.
ASSENT BY PERSONAL REPRESENTATIVE IN FAVOUR OF A PERSON ABSOLUTELY ENTITLED FREE FROM INCUMBRANCES.
I, A.B., of
[etc.] as the personal representative of
X.Y., late of [etc.] deceased, do this
day of 19 hereby, As Personal Representative, assent to the vesting in
C.D. of [etc.] of [All that farm,
etc.] or [All the property described
in the Schedule hereto] for all the estate or interest of the said
X.Y. at the time of his death
[or, for an estate in fee
simple].
As witness, etc.
NOTE:- The expression "conveyance"
includes an assent, but an assent will relate back to the death unless a
contrary intention appears.
An assent may be properly given though duties remain
to be paid if the personal representative is satisfied in regard to the
arrangements
made for payment.
-------------
FORM No. 9.
ASSENT BY PERSONAL REPRESENTATIVES IN FAVOUR OF TRUSTEES FOR SALE.
We, A.B., of
[etc.] and C.D., of [etc.] as the
Personal Representatives of X. Y, late
of [etc.] deceased do this day of 19 hereby:-
1. As Personal Representatives assent to the Vesting in [ourselves or] T.A. of [etc.] and T.B. of [etc.] All Those [etc.] To Hold unto [ourselves or] the said T.A. and T.B. in fee simple Upon trust to sell the same or any part thereof with full power to postpone the sale and to stand possessed of the net proceeds of sale and other money applicable as capital and the net rents and profits until sale upon the trusts respectively declared concerning the same [or the proceeds of sale and the rents and profits of certain property at ] by the Will dated [etc.] of [etc.] [or by the Settlement dated etc. or otherwise as the case may require].
2. And declare that F. of [etc.] and M. of [etc.] during their joint lives and the survivor of them during his or her life have or has power to appoint new trustees of this Assent [or "that the statutory power to appoint new trustees applies to this Assent" or otherwise as the case requires to correspond with the power applicable to the Will or Settlement].
As witness etc.
__________
|
Sect. 206.
|
SIXTH
SCHEDULE.
|
EPITOMES OF ABSTRACTS OF TITLE.
SPECIMEN No. 1.
OF THE TITLE OF JOHN WILLIAMS TO BLACKACRE
WHERE
THE TITLE COMMENCES BEFORE THE
COMMENCEMENT
OF THIS ACT.
The italics show how the abstract is to be framed and what
documents are to be abstracted. After the commencement of this Act, the
parts
not in italics may be ignored.
10TH JUNE, 1897. -
Will of H. Jones, appointing Maria Jones and
W. Jones executors and Settled Land
Act trustees.
Devises,
Blackacre.
To the use that
Maria Jones may receive a yearly rentcharge of five hundred pounds for her life,
and, subject thereto,
To the
use of W. Jones for life with remainder,
To the use of
X. and
Y., for a term of one thousand years,
and subject thereto,
To the use of the first and other sons of
W. Jones in tail with remainders
over.
Trusts of term of one thousand years declared for raising ten
thousand pounds for portions for younger children of
W.
Jones, as he shall appoint, and in
default equally.
Hotchpot Clause. Power to appoint new
trustees.
4TH JUNE, 1898. -
Death
of H. Jones.
1ST AUGUST, 1898.
- Will
of H. Jones proved.
[NOTE:- After the execution of the Vesting Deed the will only takes effect in equity and can be withdrawn from the abstract when not required as a root of title.]
20TH AUGUST, 1899. -
Conveyance by the executors to the uses of
the Will.
2ND SEPTEMBER,
1915. - Appointment of R. and S. to be
settled Land Act trustees of the will in place of Maria Jones and W. Jones who
retire.
1ST JANUARY, 1926. - The Settled Land and Law of Property
Acts, 1925, come into operation.
[NOTE:- The legal estate in fee simple will vest in W. Jones in fee for simple, but he cannot deal with it till the vesting deed is executed.]
20TH JANUARY, 1926. -
Deed by the settled Land Act trustees
declaring the fee simple is vested in W. Jones on the trusts of the will and
stating that they
are the trustees of the settlement.
2ND FEBRUARY
1926 - Appointment by W. Jones of five thousand pounds, part of the ten thousand
pounds, to his daughter, Ann Jones.
3RD FEBRUARY, 1926. - Assignment of
Ann Jones of her five thousand pounds, part of the ten thousand pounds raisable
for portions,
to trustees F. and
G on her marriage to J.
Robinson.
4TH FEBRUARY, 1926 - Will of W. Jones,
appointing T. Brooks his
executor.
6TH MARCH, 1926. - Death of W. Jones leaving three children,
Fredrick Jones, his eldest son, and E. Jones and Ann Robinson.
2ND APRIL,
1926. - Disentail by Fredrick Jones in trust for himself in fee
simple.
3RD MAY, 1926. - Will
of W. Jones, proved by R. and S. in
regard to the settled land.
6TH JUNE, 1926. - Mortgage by E. Jones
of his one-half of the ten thousand pounds to
K.
1ST DECEMBER, 1926. - Death
of Maria Jones, jointress.
2ND JANUARY, 1927. - Release by
F. and
G. on payment to them of the five
thousand pounds of Ann Robinson.
SAME DATE. - Release by E. Jones and
K., his mortgagee, of the five
thousand pounds raisable for E. Jones.
3RD JANUARY, 1927. -
Assent by R. and S., as personal
representatives to Fredrick Jones in fee, without nominating Settled Land Act
trustees.
[NOTE:- If the Assent had been made before the family charges had been cleared, the personal representatives would have nominated themselves as being the trustees of the settlement, and a discharge from them would have been required when the charges were cleared.]
6TH FEBRUARY,
1927. - Mortgage either by charge by way of
legal mortgage or for a term of one thousand years by Fredrick Jones to the
Estate Trustees of
the C. Assurance Society to secure five thousand pounds and
interest.
20TH MARCH, 1927. - Second mortgage either by charge by
way of legal mortgage or for a term of two thousand years by Fredrick Jones
to
D., to secure three thousand pounds
and interest.
1ST JUNE, 1927. - Third mortgage either by charge by way of
legal mortgage or for a term of three thousand years by Fredrick Jones
to
E., to secure two thousand pounds and
interest.
8TH AUGUST, 1927. - Conveyance by Frederick Jones on his
marriage (subject to above mortgages) to
M. and
N. upon trust for sale, the proceeds
of sale being settled by a deed of even date.
12TH NOVEMBER, 1927. -
Death of M.
20TH DECEMBER,
1927. - Appointment of F. as trustee
of the conveyance on trust for sale in the place of
M., and jointly with
N.
10TH JUNE, 1928. -
Conveyance by the then Estate Trustees of the
C. Assurance Society, under their power of sale as first mortgages, to John
Williams
in fee.
[NOTE: - The title being made under the power of sale of the Estate Trustees, the fee simple passes and not merely the mortgage term.
They can if desired convey the fee in the names of M. and N. It is unnecessary to disclose the second and third mortgages or the conveyance on trust for sale. It would have been necessary to disclose them if title had been made by the trustees for sale, as the mortgages and the conveyance all dealt with legal estates. The right to vest the debt and mortgaged property in Estate Trustees by memorial enrolled under a Private Act is preserved.
No evidence of deaths, births, etc., is required. Probate of the will of H. Jones is conveyancing evidence of his death.]
12TH JANUARY, 1929. -John Williams
leaves Great Britain and Northern Ireland is believed to be alive but cannot be
found.
10TH AUGUST, 1929. - Private
Act passed authorising the X. Company to acquire Blackacre under compulsory
powers.
15TH JUNE, 1930. -
Statutory declaration as to facts known with
reference to John Williams.
16TH JUNE, 1930. -
Deed Poll by X. Company (who by their agent
also execute in the name of John Williams) under section seventy-seven of the
Lands Clauses
Consolidation Act, 1845, vesting the land in
themselves.
[NOTE:- This is an example of an exercise of a power over a legal estate the operation of which is expressly preserved.]
-----------
SPECIMEN NO. 2.
OF THE TITLE OF THE TRUSTEES OF FRANK SMITHERS TO GREENACRE.
RELATING TO UNDIVIDED SHARES.
2ND JANUARY, 1910. -
Mortgage by James Smith of Greenacre to M.
Coy., Ltd.
in fee to secure £1,000 and
interest.
4TH FEBRUARY, 1910. -
Will of James Smith devising Greenacre to his
ten children named therein in equal shares and appointing E. to be his
executor.
1ST MARCH, 1910. -
Death of James Smith, leaving the ten
children surviving.
3RD APRIL, 1910. -
Probate by E.
4TH DECEMBER,
1910. - Assent by E. to the devise to the ten
children.
5TH JANUARY, 1911. - Mortgage by one of the sons of his
tenth share.
15TH APRIL, 1911. - Conveyance by one of the daughters on
her marriage of a tenth share to trustees on trust for sale, the net proceeds
to
be held on the trusts of her settlement of even date.
20TH MAY, 1911. -
Settlement by another of the sons of his tenth share and appointing Settled Land
Act trustees.
8TH JUNE, 1913. - Will of another daughter devising her
tenth to her husband and appointing him
executors.
20TH JUNE, 1913.
- Death of the testatrix.
4TH AUGUST, 1913. - Probate by her
husband.
2ND MAY, 1918. - Death of another son intestate.
30TH
JULY, 1918. - Letters of administration granted to two of his
brothers.
1ST JANUARY, 1926. - The Law of Property Act, 1925, comes into
operation and vests Greenacre, subject only to the mortgage of 1910
affecting
the entirety (which is converted into a mortgage for a term of three thousand
years), in the Public Trustee, pending the
appointment of new trustees, on trust
for sale.
4TH JUNE, 1926. - Order of
the court (Chancery Division) made on the application of persons entitled to
six-tenths, appointing M. and N. to be trustees
of the trust affecting Greenacre
in place of the Public Trustee.
7TH MAY, 1927. -
Conveyance on sale to Walter Robinson by M.
and N., the M. Company, Limited, being paid off out of part of the purchase
money, and
joining to surrender the three thousand years term.
[NOTE:- The balance of the purchase money is available in the hands of the trustees to answer the claims of the mortgagee and other persons interested in undivided shares.]
4TH JUNE, 1927. - Will of
Walter Robinson devising and bequeathing Greenacre and his residuary real and
personal estate to X. and
Y. upon trust for his son John
Robinson for life with remainder upon trust for his first and other sons
successively according to seniority
in tail male with remainder upon trust for
the same sons in tail general with remainder upon trust for all the daughters of
John
Robinson as tenants in common in tail with cross remainders in tail between
them in equal shares. Appointment of
X. and
Y. to be executors and Settled Land
Act trustees.
1ST DECEMBER, 1927. - Death of testator.
20TH APRIL,
1928. - Probate by X. and
Y.
3RD MAY, 1928. - Assent by
X. and Y. vesting the settled land in John Robinson upon the trusts of the will
of Walter Robinson, and stating that they
are the trustees of the
settlement.
14TH JULY, 1928. - Will of John Robinson appointing
his daughters Mary Robinson and Jane Robinson his executors.
16TH MARCH,
1930. - Death of John Robinson without having had a son and leaving five
daughters.
12TH JUNE, 1930. - Probate
by X. and Y. in regard to the settled land.
25TH JULY,
1930. - Assent by X. and Y. to the vesting of
the settled land in themselves on trust for sale, the net proceeds to be held on
the trusts
of the will of Walter Robinson.
7TH JANUARY, 1931. -
Conveyance on sale by X. and Y. of Greenacre
to Frank Smithers in fee.
8TH JANUARY, 1931. - Equitable charge by
Frank Smithers to James Montagu by way of indemnity and agreement to vest
Greenacre in a
trust corporation on trust for sale to raise the money when the
amount is ascertained and for other purposes.
[NOTE:- A mere equitable charge not secured by deposit of documents can be overridden when the land is made subject to a trust for sale without joining the chargee.]
9TH JANUARY, 1932. -
Lease by Frank Smithers of part of Greenacre
to his wife for life at a rent.
[NOTE:- A lease for life is made to take effect as a demise for a term of ninety years determinable by notice after the death of the lessee by his representatives or by the lessor.]
23RD JUNE,
1933. - Conveyance by Frank Smithers, of
Greenacre, to a trust corporation on trust for sale subject to the lease.
The net proceeds to be held on the trust of a deed of even date, under which
effect is given to the Agreement of 1931.
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SPECIMEN No. 3.
OF THE TITLE OF R. HORNE TO WAITEACRE.
WH