Conveyancing and Law of Property Act 1884

Conveyancing and Law of Property Act 1884

An Act for simplifying and improving the practice of conveyancing; and for vesting in trustees, mortgagees, and others various powers commonly conferred by provisions inserted in settlements, mortgages, wills, and other instruments; and for amending in various particulars the law of property

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART I - Preliminary

1.   Short title and commencement

[Section 1 Amended by 26 Geo. V No. 97, s. 3 ]

(1)  This Act may be cited as the Conveyancing and Law of Property Act 1884 .

(2)  [Section 1 Subsection (2) amended by 25 Geo. V No. 78, s. 3 ]This Act shall commence on 1st January 1884.

2.   Interpretation

[Section 2 Amended by 25 Geo. V No. 78 ][Section 2 Amended by 25 Geo. V No. 97, s. 3 ][Section 2 Amended by 26 Geo. V No. 97, s. 3 ][Section 2 Amended by No. 67 of 1964, s. 2 ][Section 2 Amended by No. 75 of 1973, s. 2 and Sched. 1 ][Section 2 Amended by No. 19 of 1980, s. 171 and Sched. 1 ][Section 2 Amended by No. 28 of 1994, s. 39 ][Section 2 Amended by No. 30 of 1995, s. 3 and Sched. 1 ]In this Act, unless the contrary intention appears –

bankruptcy includes liquidation by arrangement, and any other act or proceeding having, under any Act, effects or results similar to those of bankruptcy;

building purposes include the erecting and the 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;

conveyance includes assignment, appointment, lease, settlement, and other assurance, made by deed, on a sale, mortgage, demise, or settlement of any property, or on any other dealing with or for any property;

Court means the Supreme Court;

covenant in gross means a covenant created under section 90AB ;

incumbrance includes a mortgage in fee, or for a less estate, and a trust for securing money, and a lien, and a charge of a portion, annuity, or other capital or annual sum; and incumbrancer includes every person entitled to the benefit of an incumbrance, or to require payment or discharge thereof;

instrument includes deed, will, schedule of easements under the Local Government (Building and Miscellaneous Provisions) Act 1993 , and Act;

land includes land of any tenure, and tenements and hereditaments corporeal or incorporeal, and houses and other buildings, also an undivided share in land; in relation to land income includes rents and profits, and possession includes receipt of income;

mortgage includes any charge on any property for securing money or money's worth; and mortgage money means money or money's worth, secured by a mortgage; and 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; and mortgagee includes any person from time to time deriving title under the original mortgagee; and mortgagee in possession is, 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;

property includes real and personal property, and any estate or interest in any property real or personal, and any debt, and any thing in action, and any other right or interest;

purchaser includes a lessee or mortgagee, and an intending purchaser, lessee, or mortgagee, or other person who, for valuable consideration, takes or deals for any property; but sale means only a sale properly so called;

Register has the same meaning as it has in the Land Titles Act 1980 ;

rent includes yearly or other rent, toll, duty, royalty, or other reservation, by the hectare, the tonne, or otherwise; and fine includes premium or fore-gift, and any payment, consideration, or benefit in the nature of a fine, premium, or fore-gift;

securities include Government debentures, Treasury bills, and shares;

timber includes all indigenous or foreign trees, the wood of which is ordinarily used for building or manufacturing purposes, and the bark of such trees, but does not include brushwood, scrub, or underwood.

PART II - Sales and Other Transactions

3.   Conditions applicable to all contracts of sale of lands

(1)  [Section 3 Subsection (1) omitted by No. 3 of 1978, s. 2 ].  .  .  .  .  .  .  .  

(2)  A purchaser of any property shall not 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 commencement of the title, even though the same creates a power subsequently exercised by an instrument abstracted in the abstract furnished to the purchaser; nor shall he 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, covenanted 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 acknowledgment, enrolment, or otherwise.

(3)  Where land sold is held by lease (not including 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.

(4)  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.

(5)  On a sale of any property, the expenses of the production and inspection of all Acts, records, deeds, wills, probates, letters of administration, and other documents, not in the vendor's possession, and the expenses of all journeys incidental to such production or inspection, and the expenses of searching for, procuring, making, verifying, and producing all certificates, declarations, evidences, and information not in the vendor's possession, and all attested, stamped, office, or other copies or abstracts of or extracts from any Acts or other documents aforesaid, not in the vendor's possession, if any such production, inspection, journey, search, procuring, making, or verifying is required by a purchaser, either for verification of the abstract, or for any other purpose, shall be borne by the purchaser who requires the same; and where the vendor 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.

(6)  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.

(7)  This section applies only to titles and purchasers on sales properly so called, notwithstanding any interpretation in this Act.

(8)  This section applies only if and as far as a contrary intention is not expressed in the contract of sale, and shall have effect subject to the terms of the contract and to the provisions therein contained.

(9)  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.

4.   Provision by Court for incumbrances and giving effect to sale freed therefrom

(1)  Where land subject to any incumbrance, whether immediately payable or not, is sold by the Court, or out of Court, the Court may, if it thinks fit, on the application of any party to the sale, direct or allow payment into Court, in case of an annual sum charged on the land, or of a capital sum charged on a determinable interest in the land, 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 in any other case of capital money charged on the land, of the amount sufficient to meet the incumbrance 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, and give directions for the retention and investment of the money in Court.

(3)  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.

5.   Constructive notice: Restriction on

(1)  A purchaser shall not be prejudicially affected by notice of any instrument, 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) [Section 5 Subsection (1) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] 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 Australian legal practitioner, or other agent, as such, or would have come to the knowledge of his Australian legal practitioner, or other agent, as such, if such inquiries and inspections had been made as ought reasonably to have been made by the Australian legal practitioner or other agent.

(1A)  [Section 5 Subsection (1A) inserted by No. 101 of 1973, s. 2 ][Section 5 Subsection (1A) amended by No. 9 of 1982, s. 7 and Sched. 10 ]For the purposes of this section, a purchaser is not bound to inquire concerning, or to inspect –

(a) [Section 5 Subsection (1A) amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] the register kept pursuant to section 265 of the Corporations Act; or

(b) [Section 5 Subsection (1A) amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] the copies of instruments or the register of charges required by section 271 of the Corporations Act to be kept by a company.

(2)  This section 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, mediately or immediately; and such liability or obligation may be enforced in the same manner and to the same extent as if this section 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.

6.   What is included in a conveyance of land

(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, hedges, ditches, fences, ways, waters, watercourses, 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, watercourses, 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)  This section applies only if and as far as a contrary intention is not expressed in the conveyance, and shall have effect subject to the terms of the conveyance and to the provisions therein contained.

(4)  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 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.

(5)  This section applies only to conveyances made after the commencement of this Act.

7.   Covenants for title implied in certain cases

[Section 7 Amended by 25 Geo. V No. 78 ]

(1)  [Section 7 Subsection (1) amended by No. 101 of 1973, s. 3 ]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 made as tenants in common, that is to say –

(a) In a conveyance for valuable consideration, other than a mortgage, the following covenant by a person who conveys as beneficial owner, namely:

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, subject as, if so expressed, and in the manner in which it is expressed to be conveyed, and that 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; and that, freed and discharged from, or otherwise by the person who so conveys sufficiently indemnified against, all such estates, incumbrances, 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, or by, through, or under any one through whom the person who so conveys derives title; 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, 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.

(b) In a conveyance of leasehold property for valuable consideration other than a mortgage, the following further covenant by a person who conveys as beneficial owner, namely:

That, notwithstanding anything by the person who so conveys, or any one through whom he derives title 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 in no wise 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.

(c) In a conveyance by way of mortgage, the following covenant by a person who conveys as beneficial owner, namely:

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, incumbrances, 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 of 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, at 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.

(d) In a conveyance by way of mortgage of leasehold property, the following further covenant by a person who conveys as beneficial owner, namely:

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 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 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.

(e) In a conveyance by way of settlement, the following covenant by a person who conveys as settlor, namely:

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, subject as, if so expressed, and in the manner in which the conveyance is expressed to be made, as by them or any of them shall be reasonably required.

(f) In any conveyance, the following covenant by every person who conveys as trustee or mortgagee, or as personal representative of a deceased person or as committee of a lunatic so found by inquisition or under an order of the Court, which covenant shall be deemed to extend to every such person's own acts only, namely:

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 incumbered 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.

(2)  [Section 7 Subsection (2) amended by No. 101 of 1973, s. 3 ]Where in a conveyance it is expressed that by direction of a person who directs as beneficial owner another person conveys, then, within this section, the person giving the direction, whether he conveys as beneficial owner or not, shall be deemed to convey as beneficial owner the subject-matter so conveyed by his direction; and a covenant on his part shall be implied accordingly.

(3)  [Section 7 Subsection (3) amended by No. 101 of 1973, s. 3 ]Where in a conveyance a person conveying does not 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 so found by inquisition 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.

(4)  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.

(4A)  [Section 7 Subsection (4A) inserted by No. 101 of 1973, s. 3 ]For the purposes of this section, a person who is expressed to convey or direct as a person having a specified capacity mentioned in this section shall be deemed to convey or direct as such a person, whether or not he is in fact such a person, and to be liable on the covenants implied by this section even if he is not such a person.

(5)  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.

(6)  This section applies only to conveyances made after the commencement of this Act.

8.   Rights of purchaser regarding execution

[Section 8 Amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] 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 Australian legal practitioner, 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 Australian legal practitioner.

9.   Acknowledgment of right to production: Undertaking for 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 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 –

(a) 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 one by him authorized in writing;

(b) 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 Tasmania, 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

(c) 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, 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 only to an acknowledgment or undertaking given, or a liability respecting documents incurred, after the commencement of this Act.

9A.   Revival of easements, &c., on disunity of seisin

[Section 9A Inserted by No. 72 of 1963, s. 2 ]

(1)  Where –

(a) the seisin in fee simple is united of two parcels of land of which there was theretofore separate seisin in fee simple; and

(b) over or upon one of those parcels any easement or restriction then existed for the benefit of the other –

the provisions of this section apply when the seisin of the two parcels is to be disunited in fee simple.

(2)  There shall be implied, unless the contrary intention appears –

(a) in any contract of sale of either parcel which leads to the disunity a provision that it is sold –

(i) with all such rights and advantages as belonged to it; and

(ii) with all such burdens and disadvantages as it was subject to –

when it belonged to the predecessor in title of the person in whom seisin was united as mention in subsection (1) ; and

(b) in the conveyance of either parcel which effects that disunity –

(i) such grants and reservations as will create afresh the easements; and

(ii) such covenants, conditions, and declarations of trust as will renew the restrictions –

to which the other parcel was subject for its benefit or it was subject for the other parcel's benefit, when it belonged to that predecessor.

PART III - Leases

10.   Rent and benefit of lessee's covenants run with 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 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.

(2)  This section applies only to leases made after the commencement of this Act.

11.   Obligation of lessor's covenants runs with reversion

(1)  The obligation 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 only to leases made after the commencement of this Act.

11A.   Provisions as to attornments by tenants

[Section 11A Inserted by No. 72 of 1962, s. 3 ]

(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 rent-charge to issue or issuing out of the land –

shall be valid without any attornment of the lessee.

(2)  Nothing in subsection (1) –

(a) 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

(b) 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.

(3)  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 is void.

(4)  Subsection (3) does not apply to an attornment –

(a) made pursuant to a judgment of a court of competent jurisdiction;

(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 person rightfully deriving title under the lessor.

(5)  An attornment by a lease of land to a stranger claiming title to the lessor's estate is void without the lessor's consent.

(6)  Sections 9 and 10 of the Imperial Act referred to either as the fourth year of Queen Anne, Chapter 3, and section 11 of the Imperial Act of the eleventh year of King George the Second, Chapter 19, are repealed so far as they apply to this State.

12.   Apportionment of conditions on severance, &c., of reversion

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 any land which has not been surrendered, or as to which the term 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.

13.   

[Section 13 Repealed by No. 3 of 1978, s. 2 ].  .  .  .  .  .  .  .  

14.   

[Section 14 Repealed by No. 3 of 1978, s. 2 ].  .  .  .  .  .  .  .  

15.   Restrictions on and relief against forfeiture of leases

[Section 15 Subsection (6) amended by No. 68 of 1994, s. 3 and Sched. 1 ]

(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 specifying the particular breach complained of and, if the breach is capable of remedy, requiring the lessee to remedy the breach, and 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)  For the purposes of this section a lease includes an original or derivative under-lease, also a grant at a fee farm rent, or securing a rent by condition; and a lessee includes an original or derivative under-lessee, and the executors, administrators, and assigns of a lessee, also a grantee under such a grant as aforesaid, his successors and assigns, and a lessor includes an original or derivative under-lessor, and the executors, administrators, and assigns of a lessor, also a grantor as aforesaid, and his successors and assigns.

(4)  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.

(5)  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.

(6)  [Section 15 Subsection (6) amended by No. 24 of 2004, s. 29, Applied:01 Jan 2005] [Section 15 Subsection (6) amended by No. 47 of 1958, s. 2 ]This section does not extend to a covenant or condition against the assigning, under-letting, parting with the possession, or disposing of the land leased, or to a condition for forfeiture on the bankruptcy of the lessee, or on the taking in execution of the lessee's interest, or, in the case of a lease of any premises in respect of which an hotel licence or public-house licence is in force under the Liquor Licensing Act 1990 , to a covenant not to do or omit any act or thing whereby the licence may be forfeited or the premises delicensed.

(7)  This section shall not affect the law relating to re-entry or forfeiture or relief in case of non-payment of rent.

(8)  This section applies to leases made either before or after the commencement of this Act, and shall have effect notwithstanding any stipulation to the contrary.

16.   Effect of licences

[Section 16 Amended by 26 Geo. V No. 97, s. 3 ]

(1)  Where a licence is granted to a lessee to do any act, the licence, unless otherwise expressed, extends only to –

(a) the permission actually given;

(b) the specific breach of any provision or covenant referred to; or

(c) any other matter thereby specifically authorized 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 matter not specifically authorized 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 authorized 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 to –

(a) any one of two or more lessees to do any act, or to deal with his equitable share or interest; or

(b) any lessee, or 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 subject to the licence.

(4)  This section applies to licences granted after 4th October 1860.

PART IV - Mortgages

17.   Obligation on mortgagee to transfer instead of reconveying

(1)  Where a mortgagor is entitled to redeem, he shall, by virtue of this Act, have power to require the mortgagee, instead of reconveying, and on the terms on which he would be bound to reconvey, to assign the mortgage debt and convey the mortgaged property to any third person, as the mortgagor directs; and the mortgagee shall, by virtue of this Act, be bound to assign and convey accordingly.

(2)  The right conferred on the mortgagor by this section shall belong to and be capable of being enforced by each incumbrancer, or by the mortgagor, notwithstanding any intermediate incumbrance; but a requisition of an incumbrancer shall prevail over a requisition of the mortgagor, and, as between incumbrancers, a requisition of a prior incumbrancer shall prevail over a requisition of a subsequent incumbrancer.

(3)  This section does not apply in the case of a mortgagee being or having been in possession.

(4)  This section applies to mortgages made either before or after the commencement of this Act, and shall have effect notwithstanding any stipulation to the contrary.

18.   Power of mortgagor to inspect title deeds

(1)  A mortgagor, as long as his right to redeem subsists, shall, by virtue of this Act, be entitled, 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.

(2)  This section applies to mortgages made either before or after the commencement of this Act, and shall have effect notwithstanding any stipulation to the contrary.

19.   Leasing power of mortgagor and mortgagee in possession

(1)  A mortgagor of land while in possession shall, as against every incumbrancer, have, by virtue of this Act, power to make any such lease of the mortgaged land, or any part thereof, as is in this section described and authorized.

(2)  A mortgagee of land while in possession shall, as against all prior incumbrancers, if any, and as against the mortgagor, have, by virtue of this Act, power to make any such lease as aforesaid.

(3)  The leases which this section authorizes are –

(a) an agricultural or occupation lease for any term not exceeding 21 years; and

(b) a building lease for any term not exceeding 99 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 12 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 a condition of re-entry on the rent not being paid within a time therein specified not exceeding 30 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 5 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 connection 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 5 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 by them 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.

(14)  This section applies only in case of a mortgage made after the commencement of this Act; but the provisions thereof, or any of them, may, by agreement in writing made after the commencement of this Act, between mortgagor and mortgagee, be applied to a mortgage made before the commencement of this Act, so nevertheless, that any such agreement shall not prejudicially affect any right or interest of any mortgagee not joining in or adopting the agreement.

(15)  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.

20.   Further leasing powers; Limitation of term

(1)  Nothing in this Act shall prevent the mortgage deed from reserving to or conferring 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, unless a contrary intention is expressed in the mortgage deed.

(2)  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 had not been passed.

21.   Powers incident to estate or interest of mortgagee

(1)  [Section 21 Subsection (1) amended by 25 Geo. V No. 78, s. 3 ]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, a power:

(a) When the mortgage money or any interest thereon has become due, to sell, or to concur with any other person in selling, the mortgaged property, or any part thereof, either subject to proper 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 he (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 resell, without being answerable for any loss occasioned thereby;

(b) At any time after the date of the mortgage deed, to insure and keep insured 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 mortgaged property, in addition to the mortgage money, and with the same priority, and with interest at the same rate, as the mortgage money;

(c) When the mortgage money has become due, to appoint a receiver of the income of the mortgaged property, or any part thereof; and

(d) While the mortgagee is in possession, to cut and sell timber and other trees, 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 12 months from the making of the contract.

(2)  The provisions of this Act relating to the foregoing powers, comprised either in this section, or in any subsequent 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.

(3)  This section applies only if and as far as a contrary intention is not expressed in the mortgage deed, and shall have effect subject to the terms of the mortgage deed and to the provisions therein contained.

(4)  This section applies only where the mortgage deed is executed after the commencement of this Act.

22.   Regulation of exercise of mortgagee's power of sale

(1)  A mortgagee shall not exercise the power of sale conferred by this Act unless and until notice of his intention to sell the mortgaged property, in consequence of default having been made in payment of the mortgage money, or part thereof, or of any interest due thereon, as the case may be, has been served on the mortgagor, or one of several mortgagors, or has been published in one or more newspapers in Tasmania at least one month before the date of such intended sale.

(2)  [Section 22 Subsection (2) added by 26 Geo. V No. 97, s. 3 ]The notice required by this section may be a notice of a general intention to exercise the power of sale conferred on a mortgagee by this Act.

(3)  [Section 22 Subsection (3) added by 26 Geo. V No. 97, s. 3 ]At any time subsequent to the termination of one month after such notice has been served on the mortgagor or one of several mortgagors, or has been published as provided by this section, and without any further notice of intention to sell in respect of the same default, the mortgagee may exercise the power of sale conferred by this Act.

(4)  [Section 22 Subsection (4) added by 26 Geo. V No. 97, s. 3 ]Any mortgagor, by writing under his hand, may waive notice either in any particular case or generally, and may accept less than one month's notice.

23.   Obligations and rights in respect of conveyance on sale by mortgagee

(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 is 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 professed exercise of the power of sale conferred by this Act, the title of the purchaser shall not be impeachable on the ground that no case had arisen to authorize the sale, or that due notice was not given, or that the power was otherwise improperly or irregularly exercised; but any person damnified by an unauthorized, or improper, or irregular exercise of the power shall have his remedy in damages against the person exercising the power.

(3)  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, owing under the mortgage; and the residue of the money so received shall be paid to the person entitled to the mortgaged property, or authorized to give receipts for the proceeds of the sale thereof.

(4)  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.

(5)  The power of sale conferred by this Act shall not affect the right of foreclosure.

(6)  The mortgagee, his executors, administrators, or assigns, 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.

(7)  At any time after the power of sale conferred by this Act has become exercisable, the person entitled to exercise the same 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.

24.   Mortgagee's receipts, discharges, &c.

(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.

25.   Insurance money: Amount and application of

(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, then shall not exceed 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:

(a) Where there is a declaration in the mortgage deed that no insurance is required;

(b) Where an insurance is kept up by or on behalf of the mortgagor in accordance with the mortgage deed;

(c) Where the mortgage deed contains no stipulation respecting insurance, and an insurance is kept up by or on behalf of the mortgagor, to the amount in which the mortgagee is by this Act authorized to insure.

(3)  All money received on an insurance effected under the mortgage deed or under this Act 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 prejudice to any obligation to the contrary imposed by law or by special contract, a mortgagee may require that all money received on an insurance be applied in or towards discharge of the money due under his mortgage.

26.   Receivers

[Section 26 Subsection (1) amended by No. 19 of 1980, s. 171 and Sched. 1 ]

(1)  [Section 26 Subsection (1) amended by 26 Geo. V No. 97, s. 3 ]A mortgagee entitled to appoint a receiver under the power in that behalf conferred by this Act or by the Land Titles Act 1980 , shall not appoint a receiver until he has become entitled to exercise the power of sale conferred by this Act or by the Land Titles Act 1980 , but may then, by writing under his hand appoint such person as he thinks fit to be receiver.

(2)  The receiver 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 the property 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.

(4)  A person paying money to the receiver shall not be concerned to inquire whether any case has happened to authorize the receiver to act.

(5)  The receiver may be removed, and a new receiver may be appointed, 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 5 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 5 per centum on that gross amount, or at such higher 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 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)  The receiver shall apply all money received by him as follows, namely:

(a) In discharge of all rents, taxes, rates, and outgoings whatever affecting the mortgaged property;

(b) 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;

(c) 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

(d) In payment of the interest accruing due in respect of any principal money due under the mortgage –

and shall pay the residue 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 the mortgaged property, or who is otherwise entitled to that property.

27.   Sale of mortgaged property in action for foreclosure, &c.

(1)  Any person entitled to redeem mortgaged property may have an 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 the dissent of any other person, and notwithstanding that 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, if it thinks fit, direct a sale of the mortgaged property, on such terms as it thinks fit, including, if it thinks fit, 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)  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.

PART V - Statutory Mortgage

28.   Form of mortgage

(1)  A mortgage of freehold or leasehold land may be made by a deed expressed to be made by way of statutory mortgage, being in the form given in Part I of Schedule 1 , with such variations and additions, if any, as circumstances may require, and 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 the mortgage deed – First, a covenant with the mortgagee by the person expressed therein to convey 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, by equal half-yearly payments, and will, after the stated day, if and as long as the mortgage money or any part thereof remains unpaid, pay to the mortgagee interest thereon, or on the unpaid part thereof, at the stated rate, by equal half-yearly payments, the first payment of interest to be made at the end of 6 months from the day on which the mortgage money shall have been advanced. Secondly, a proviso to the effect following, 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 reconvey the mortgaged property to the mortgagor, or as he shall direct.

29.   Forms of transfer of mortgage

(1)  A transfer of a mortgage may be made by a deed expressed to be made by way of a statutory transfer of mortgage, being in such one of the 3 forms (A) and (B) and (C) given in Part II of Schedule 1 as may be appropriate to the case, with such variations and additions, if any, as circumstances may require, and the provisions of this section shall apply thereto.

(2)  In whichever of those 3 forms the deed of transfer is made, it shall have effect as follows, namely:

(a) There shall become vested in the person to whom the benefit of the mortgage is expressed to be transferred, who, with his executors, administrators, and assigns, is hereafter 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;

(b) All the estate and interest, subject to redemption of the mortgagee in the mortgaged land shall vest in the transferee, subject to redemption.

(3)  If the deed of transfer is made in the form (B), 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 day by the mortgage deed fixed for payment of the mortgage money, or on a day to be stated in the deed of transfer, 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, by equal half-yearly payments, 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 (C) 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.

30.   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 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.

31.   Form of reconveyance of mortgage

A reconveyance of a mortgage may be made by a deed expressed to be made by way of statutory reconveyance of mortgage, being in the form given in Part III of Schedule 1 with such variations and additions, if any, as circumstances may require.

31A.   Discharge of mortgages by endorsements

[Section 31A Inserted by No. 27 of 1988, s. 4 ]

(1)  Mortgage money secured by a mortgage made before or after the commencement of the Conveyancing and Law of Property Amendment Act 1988 may be discharged by a memorandum endorsed on, or directed to be read as an annex to, the mortgage, signed by the mortgagee, and attested by a witness.

(2)  A memorandum referred to in subsection (1) –

(a) may be in, or to the effect of, the form given in Part IV of Schedule 1 ; and

(b) has effect as a deed.

(3)  A memorandum referred to in subsection (1) , unless a contrary intention is stated –

(a) discharges the property to which it is expressed to relate from all principal money and interest secured by, and from all claims under, the mortgage to which it is expressed to relate; and

(b) operates so as to convey the estate and interest of the mortgagee in that mortgaged property to the person for the time being entitled to the equity of redemption in that property.

(4)  Where, by virtue of subsection (3) , the estate and interest of the mortgagee is conveyed to 2 or more persons, those persons shall, unless a contrary intention appears in the memorandum referred to in subsection (1) , hold that estate and interest in the same manner and, if appropriate, in the same shares as they held the equity of redemption immediately before the discharge.

(5)  Where the mortgage consists of a mortgage and a further charge of more than one instrument, it is sufficient compliance with this section if a memorandum referred to in subsection (1) refers to –

(a) all the instruments by virtue of which the total of the mortgage money is secured; or

(b) the total of the mortgage money –

and is endorsed on, or directed to be read as an annex to, one of those instruments.

PART VI - Satisfied Terms: Trust estates

32.   Satisfied terms, whether out of freehold or leasehold, to cease

[Section 32 Substituted by 26 Geo. V No. 97, s. 3 ]

(1)  Where the purposes of a term of years, created or limited at any time out of freehold land, becomes 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.

33.   Protection of trustee, &c.

[Section 33 Substituted by 26 Geo. V No. 97, s. 3 ]

(1)  Where a personal representative or trustee liable as such for –

(a) any rent, covenant, or agreement –

(i) reserved by or contained in any lease; or

(ii) payable under or contained in any grant made in consideration of a rent-charge;

(b) any indemnity given in respect of any such rent, covenant or agreement –

has satisfied all liabilities under the lease or grant which may have accrued or been claimed up to the date of the conveyance hereinafter mentioned, and where necessary, has set apart a sufficient fund to answer any future claim that may be made in respect of any fixed and ascertained sum which the lessee or grantee agreed to lay out on the property demised or granted, although the period for laying out the same may not have arrived, such personal representative or trustee may convey the property demised or granted to a purchaser, legatee, devisee, or other person entitled to call for a conveyance thereof.

(2)  After such conveyance the personal representative or trustee –

(a) may distribute the residuary real and personal estate of a deceased testator or intestate, or the trust estate, as the case may be (exclusive of any fund set apart as aforesaid), to or amongst the persons entitled thereto, without appropriating any part or any further part, as the case may be, of such estate to meet any future liability under such lease or grant; and

(b) notwithstanding such distribution, shall not be personally liable in respect of any subsequent claim under such lease or grant.

(3)  This section shall not prejudice the right of the lessor or grantor, or the persons deriving title under them respectively, to follow the assets of the deceased or the trust property into the hands of the persons amongst whom the same may have been distributed.

(4)  This section shall apply notwithstanding anything to the contrary in the will or other instrument, if any, creating the trust.

(5)  In this section lease includes an underlease and an agreement for a lease or underlease and any instrument giving any such indemnity as aforesaid or varying the liabilities under the lease; and grant applies to a grant whether the rent is created by limitation, grant, reservation, or otherwise, and includes an agreement for a grant and any instrument giving any such indemnity as aforesaid or varying the liabilities under the grant; and lessee and grantee include persons deriving title under the lessee and grantee respectively.

34.   Devolution of trusts and powers

[Section 34 Amended by 25 Geo. V No. 78 ][Section 34 Substituted by 26 Geo. V No. 97, s. 3 ]

(1)  Until the appointment of new trustees, the personal representative for the time being of a sole trustee, or, where there were two or more trustees, of the last surviving or continuing trustee, shall be, and shall be deemed at all times to have been, capable of exercising or performing any power or trust, which was given to, or capable of being exercised by, the sole or last surviving or continuing trustee, or other the trustees or trustee for the time being of the trust.

(2)  This section shall take effect subject to any direction to the contrary expressed in the instrument, if any, creating the power or trust.

(3)  In this section personal representative does not include an executor who has renounced or has not proved.

(4)  The provisions of this section are subject to any restrictions affecting receipts by a sole trustee other than a trust corporation.

PART VIA - Easements

[Part VIA Inserted by No. 67 of 1964, s. 3 ]

Division 1 - [Division 1 of Part VIA Heading inserted by No. 16 of 1998, s. 4, Applied:05 Jun 1998] Easements generally

34A.   Short descriptions of easements

[Section 34A Inserted by No. 67 of 1964, s. 3 ]

(1)  In any instrument purporting to create or evidence an easement the words set forth in the first column of Schedule 8 shall have the same effect as if there had been inserted in lieu thereof the words appearing opposite them in the second column of that schedule.

(2)  Public policy requires that such words be given their full effect notwithstanding the creation of easements to arise at indefinite future times.

34B.   Party walls

[Section 34B Inserted by No. 67 of 1964, s. 3 ][Section 34B Amended by No. 30 of 1995, s. 3 and Sched. 1 ]Where in an instrument purporting to create or evidence easements in respect of a wall built or to be built so that the boundary between adjoining tenements passes or will pass longitudinally through the wall, that wall is described as a "party wall", that expression means, unless the contrary intention appears, that the wall is severed vertically along the boundary with separate ownership of the severed portions and with cross easements entitling –

(a) each of the persons entitled to a portion to have the whole wall continued in such a manner that each building supported thereby shall have the support of the whole wall; and

(b) .  .  .  .  .  .  .  .  

34C.   Implication of regrant

[Section 34C Inserted by No. 67 of 1964, s. 3 and Sched. 1 ]Where an assurance of land purports to make that land subject to an easement appurtenant to other land of the grantor or testator, upon the vesting of that land in the grantee or devisee the latter shall be deemed effectively to have granted that easement to the grantor or his personal representatives.

Division 2 - Parking easements

34D.   Interpretation

[Section 34D of Part VIA Inserted by No. 16 of 1998, s. 5, Applied:05 Jun 1998] In this Division –

dominant tenement means land for the benefit of which a parking easement exists or is to be created;

easement plan means a plan (which may, if the Recorder approves, form part of another plan) delineating the parking bay in which parking is authorised by a parking easement and delineating or describing the means of vehicular and pedestrian access to, and egress from, the parking bay;

owner of land means the owner of an estate in fee simple in the land or the owner of a leasehold estate in the land;

parking bay means the part of a servient tenement in which parking is authorised by a parking easement;

proprietor of a parking easement means the person in whose favour the easement exists and, if the easement is created for the benefit of land, the owner of the dominant tenement;

Recorder means the Recorder of Titles under the Land Titles Act 1980 ;

sealed plan means a final plan approved and sealed under Part 3 of the Local Government (Building and Miscellaneous Provisions) Act 1993 ;

servient tenement means land subject to a parking easement;

strata or community titles scheme means a plan or scheme under the Strata Titles Act 1998 ;

vehicle means –

(a) a vehicle for use on a road; or

(b) a vehicle for use on a track; or

(c) a vehicle for use on water; or

(d) a vehicle designed to be wholly or partially airborne.

34E.   Nature of parking easement

[Section 34E of Part VIA Inserted by No. 16 of 1998, s. 5, Applied:05 Jun 1998]

(1)  A parking easement is an easement conferring –

(a) a right to park a vehicle in the parking bay delineated in the easement plan; and

(b) a right of vehicular access to, and egress from, the parking bay by a means delineated or described in the easement plan; and

(c) a right of pedestrian access to, and egress from, the parking bay by a means defined or described in the easement plan.

(2)  A parking bay may be defined by reference to boundaries in a horizontal plane or by reference to boundaries in both a horizontal and a vertical plane.

(3)  A parking easement may confer a right of exclusive occupation in respect of the parking bay.

34F.   Creation of parking easement

[Section 34F of Part VIA Inserted by No. 16 of 1998, s. 5, Applied:05 Jun 1998]

(1)  Subject to the requirements of this Division relating to registration, a parking easement may be created in any of the following ways:

(a) by deed;

(b) as provided by section 105 of the Land Titles Act 1980 ;

(c) by a schedule of easements under section 87 of the Local Government (Building and Miscellaneous Provisions) Act 1993 ;

(d) by a plan or scheme registered under the Strata Titles Act 1998 ;

(e) in any other way approved by the Recorder.

(2)  A document under which a parking easement is created –

(a) must comply with any requirements as to its form imposed by the Recorder; and

(b) must set out the terms and conditions of the easement (although the document adequately complies with this paragraph if it uses a short form authorised by this Act); and

(c) must consist of, incorporate or be supported by a plan in a form approved by the Recorder –

(i) delineating the servient tenement and the parking bay and showing the position of the parking bay by reference to boundaries of the servient tenement; and

(ii) delineating or describing the means of vehicular access to, and egress from, the parking bay; and

(iii) delineating or describing the means of pedestrian access to, and egress from, the parking bay.

(3)  A parking easement cannot take effect unless the proposed use of the land for the parking of vehicles (and any related vehicular or pedestrian access) conforms with an approval under the Land Use Planning and Approvals Act 1993 .

34G.   Dominant and servient tenements

[Section 34G of Part VIA Inserted by No. 16 of 1998, s. 5, Applied:05 Jun 1998]

(1)  A parking easement may, but need not, be related to a dominant tenement.

(2)  If a parking easement is related to a dominant tenement, the dominant and servient tenements need not be contiguous and a sufficient relationship exists between them if the parking easement is reasonably necessary for the lawful use or enjoyment of the dominant tenement (including a prospective use that has been approved under the Land Use Planning and Approvals Act 1993 ).

(3)  Unity of seisin in the dominant and servient tenements does not destroy a parking easement.

34H.   Conditions of parking easement

[Section 34H of Part VIA Inserted by No. 16 of 1998, s. 5, Applied:05 Jun 1998]

(1)  A parking easement may be created on conditions –

(a) prescribing the classes of persons by whom vehicles may be parked under the easement; or

(b) prescribing the classes of vehicles that may be parked under the easement.

(2)  A parking easement may be created on conditions under which the easement operates for a specified period or periods or at specified times.

(3)  A parking easement may be created on conditions under which –

(a) obligations of maintenance and repair are imposed on either or both parties to the easement; or

(b) the proprietor of the easement is, or may be, required to pay charges or charges of a specified nature to the owner of the servient tenement; or

(c) charges may be made for the parking of vehicles in pursuance of rights conferred by the easement; or

(d) outstanding obligations are apportioned between the proprietor of the easement and the owner of the servient tenement on the termination or expiry of the easement.

34I.   Parking easement to run with land

[Section 34I of Part VIA Inserted by No. 16 of 1998, s. 5, Applied:05 Jun 1998]

(1)  The benefits and burdens of a parking easement run with title to land.

(2)  The rights and obligations conferred or imposed under the conditions of the easement are enforceable by or against the owner for the time being of the servient tenement and, if there is a dominant tenement, the dominant tenement but, if not, the proprietor of the easement.

(3)  Despite subsections (1) and (2) , if a parking easement is created over a leasehold estate in the servient tenement –

(a) the easement is not valid and binding against a mortgagee or encumbrancee of the servient tenement unless the mortgagee or encumbrancee has consented in writing to the easement; and

(b) the parking easement terminates on the expiry or termination of the lease.

34J.   Variation of parking easement

[Section 34J of Part VIA Inserted by No. 16 of 1998, s. 5, Applied:05 Jun 1998]

(1)  Subject to the requirements of this Division relating to registration, a parking easement may be varied by a document in a form approved by the Recorder evidencing agreement between the proprietor of the easement and the owner of the servient tenement to the variation.

(2)  A variation to create a new parking bay, or alter the boundaries of an existing parking bay, or alter the means of vehicular or pedestrian access to the parking bay cannot take effect unless –

(a) the document making the variation consists of, incorporates or is supported by a plan in a form approved by the Recorder showing how the easement plan is affected by the variation; and

(b) if the variation would change the use of land, the change of use conforms with an approval under the Land Use Planning and Approvals Act 1993 .

34K.   Termination of parking easement

[Section 34K of Part VIA Inserted by No. 16 of 1998, s. 5, Applied:05 Jun 1998]

(1)  Subject to the requirements of this Division relating to registration, a parking easement may be terminated by a document in a form approved by the Recorder evidencing –

(a) agreement between the proprietor of the easement and the owner of the servient tenement to the surrender of the easement; or

(b) if the terms and conditions of the easement impose no obligations on the proprietor of the easement, the proprietor's unilateral agreement to surrender the easement.

(2)  If a parking easement was created for the benefit of a dominant tenement in order to conform with an approval under the Land Use Planning and Approvals Act 1993 for the development or use of the dominant tenement, a document to terminate the easement cannot take effect unless the proposed termination also conforms with an approval under that Act.

34L.   Registration

[Section 34L of Part VIA Inserted by No. 16 of 1998, s. 5, Applied:05 Jun 1998]

(1)  The creation, variation, expiry or termination of a parking easement is –

(a) if the easement relates to land subject to the Land Titles Act 1980 , registrable under that Act; and

(b) if the easement relates to land that is not subject to the Land Titles Act 1980 , registrable under the Registration of Deeds Act 1935 .

(2)  The Recorder may register the creation, variation, expiry or termination of a parking easement on lodgment of a document in a form approved by the Recorder creating, varying or terminating the easement or evidencing its creation, variation, expiry or termination and, in the case of land subject to the Land Titles Act 1980 , registration is to be effected on the folio for the servient tenement and, if there is a dominant tenement, the folio for the dominant tenement.

(3)  Subject to subsection (4)  –

(a) a parking easement over land subject to the Land Titles Act 1980 does not take effect until registration of creation of the easement; and

(b) if a parking easement is registered, the variation, expiry or termination of the easement does not take effect until registered.

(4)  A parking easement created by lease for a term of 3 years or less –

(a) is not registrable under the Land Titles Act 1980 ; and

(b) takes effect without registration; and

(c) terminates automatically on determination of the lease.

(5)  Before the Recorder registers the creation, variation or termination of a parking easement, the Recorder may require production of evidence of any necessary approval under the Land Use Planning and Approvals Act 1993 .

(6)  On registration of a variation to, or the expiry or termination of, a parking easement created by sealed plan or a strata or community titles scheme, the Recorder must, if it is appropriate to do so, amend the plan or scheme to reflect the variation, expiry or termination of the easement.

PART VII - Title: Sale and Purchase

35.   Commencement of title

[Section 35 Substituted by No. 3 of 1978, s. 2 ]

(1)  In the completion of any contract of sale of land, 20 years shall be substituted as the period of commencement of title which a purchaser may require in place of 60 years, the period that formerly could have been so required; but earlier title than 20 years may be required in cases similar to those in which earlier title than 60 years might formerly be required.

(2)  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.

(3)  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.

(4)  Where by reason of subsection (2) or subsection (3) an intending lessee or assign is not entitled to call for the title to a leasehold reversion, he shall not, where the contract is made on or after 1st July 1978, 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.

(5)  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.

(6)  Notwithstanding anything in the Registration of Deeds Act 1935 , the estate of a purchaser in good faith for value under an instrument registered under that Act is not postponed in priority by the registration of an instrument –

(a) that was registered prior to the period of commencement of the purchaser's title as mentioned in subsection (5) ; and

(b) for which the purchaser is not entitled to call by virtue of the operation of this section.

(7)  Where a lease, whether made before or after the commencement of this Act, is made under a power contained in a settlement, will, act, 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.

(8)  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 on or after 1st July 1978.

(9)  This section applies only if and as far as a contrary intention is not expressed in the contract, and shall have effect subject to the terms of the contract and to the provisions therein contained.

35A.   Saving for certain restrictive covenants

[Section 35A Inserted by No. 3 of 1978, s. 2 ]

(1)  Where a covenant restrictive of user of freehold land that has been entered into before 1st July 1978 (otherwise than on a conveyance of the land on sale) would, but for the provisions of section 35 (5) , have been enforceable against a purchaser of the land burdened by the covenant, it is the duty of every owner of an estate or interest in the land who is aware of the covenant to give written notice of the covenant to any purchaser to whom he conveys any estate or interest in the land or any part of it, and thereupon that purchaser shall be deemed to be affected with notice of the covenant in like manner as if he had received that notice as a result of his own investigation or enquiries.

(2)  Where in respect of any covenant a person is in default in the discharge of the duty imposed on him by subsection (1) he is liable in damages to any person who, but for the default, would have been entitled to the benefit of the covenant for any loss suffered by that person by reason of the default.

(3)  Where by virtue of this section any person becomes liable to pay damages to another the Minister shall, by virtue of this subsection, be deemed to have entered into, with those persons, a contract guaranteeing the discharge of the liability, with a right of indemnity against the person liable for the damages, but section 6 of the Mercantile Law Act 1935 shall be deemed not to apply to such a contract.

36.   Contracts for sale, &c., 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 thereunto by him lawfully authorized.

(2)  This section applies to contracts whenever made, and does not affect the law relating to part performance or sales by the Court.

37.   Obligations and rights of vendor and purchaser

In the completion of any such contract as aforesaid, and subject to any stipulation to the contrary in the contract, the obligations and rights of vendor and purchaser shall be regulated by the following rules:

(a) Under a contract to grant or assign a term of years, whether derived or to be derived out of a freehold or leasehold estate, the intended lessee or assign shall not be entitled to call for the title to the freehold;

(b) Recitals, statements, and descriptions of facts, matters, and parties contained in deeds, instruments, Acts, or statutory declarations, 20 years old at the date of the contract, shall, unless and except so far as they shall be proved to be inaccurate, be taken to be sufficient evidence of the truth of such facts, matters, and descriptions;

(c) The inability of the vendor to furnish the purchaser 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;

(d) Such covenants for production as the purchaser can and shall require shall be furnished 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;

(e) Where the vendor retains any part exceeding one-half of an estate to which any documents of title relate, he shall be entitled to retain such documents; but, if such vendor shall have parted with more than one-half of the estate to which such documents relate, he shall be bound to deposit such documents in the office of the Registrar of Deeds for safe custody on behalf of all parties interested.

38.   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;

(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 –

whether or not the prior mortgage was made expressly for securing further advances.

(2)  Where the prior mortgage was made expressly for securing a current account or other further advances, a mortgagee in relation to the making of further advances shall not be deemed to have notice of a mortgage merely by reason that it was registered, if it was not registered at the date of the original advance or when the last search, if any, by or on behalf of the mortgagee was made, whichever last happened.

(3)  Save in regard to the making of further advances as aforesaid, the right to tack is hereby abolished; but this provision shall not affect any priority in respect of further advances made without notice of a subsequent incumbrance or by arrangement with the subsequent incumbrancer.

39.   Right of vendor or purchaser to obtain decision of judge as to requisitions, objections, or compensation, &c.

A vendor or purchaser of real or leasehold estate, or their representatives respectively, may at any time apply in a summary way to a judge in chambers 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 judge shall make such order upon the application as to him shall appear just, and shall order how and by whom all or any of the costs of and incident to the application shall be borne and paid.

40.   Voluntary conveyances to defraud creditors voidable

(1)  Save as provided in this section, every conveyance of property whenever made, 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.

(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.

41.   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 23rd October 1896.

42.   Acquisitions of reversions at 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 VIII - Married Women

43.   Power of Court to bind interest of married woman

[Section 43 Amended by No. 47 of 1958, s. 3 ]Notwithstanding that a married woman is restrained from anticipation, the Court may, if it thinks fit, where it appears to the Court to be for her benefit, by order, with her consent, bind her interest in any property.

44.   Power of attorney of married woman

(1)  A married woman, whether an infant or not, shall, by virtue of this Act, have 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.

(2)  This section applies only to deeds executed after the commencement of this Act.

45.   Restraint on anticipation abolished

[Section 45 Inserted by 26 Geo. V No. 97, s. 3 ]No restraint on anticipation contained in any will taking effect after 31st December 1936, or in any other instrument executed after 31st December 1935, shall affect the power of a married woman to dispose of or deal with any property.

PART IX - Infants

46.   Management of land and receipt and application of income during minority

[Section 46 Subsection (5) amended by No. 21 of 1973, s. 5 and Sched. 1 ]

(1)  [Section 46 Subsection (1) amended by 26 Geo. V No. 97, s. 3 ]If and as long as any person who would but for this section be beneficially entitled to the possession of any land is an infant, the trustees appointed for this purpose by the settlement, if any, or, if there are none so appointed, then the persons, if any, who are for the time being under the settlement trustees with power of sale of the settled land, or of part thereof, or with power of consent to or approval of the exercise of such a power of sale, or if there are none, then any persons appointed as trustees for this purpose by the Court, on the application of a guardian or next friend of the infant, may enter into and continue in possession of the land; and in every such case the subsequent provisions of this section shall apply.

(2)  The trustees shall manage or superintend the management of the land, with full power to fell timber or cut underwood or deadwood for sale, or for repairs or otherwise, and to erect, pull down, rebuild, and repair houses and other buildings and erections, and to continue the working of mines, minerals, and quarries which have usually been worked, and to drain or otherwise improve the land or any part thereof, and to insure against loss by fire, and to make allowances to and arrangements with tenants and others, and to determine tenancies, and to accept surrenders of leases and tenancies, and generally to deal with the land in a proper and due course of management; but so that, where the infant is impeachable for waste, the trustees shall not commit waste, and shall cut timber on the same terms only, and subject to the same restrictions, on and subject to which the infant could, if of full age, cut the same.

(3)  The trustees may, out of the income of the land, including the produce of the sale of timber, underwood, and deadwood, pay the expenses incurred in the management, or in the exercise of any power conferred by this section or otherwise in relation to the land, and all outgoings not payable by any tenant or other person, and shall keep down any annual sum, and the interest of any principal sum, charged on the land.

(4)  [Section 46 Subsection (4) amended by 25 Geo. V No. 78 ]The trustees may apply at discretion any income which, in the exercise of such discretion, they deem proper, according to the infant's age, for his maintenance, education, or benefit, or pay thereout any money to the infant's parent or guardian, to be applied for the same purposes.

(5)  [Section 46 Subsection (5) amended by 26 Geo. V No. 97, s. 3 ]The trustees shall lay out the residue of the income of the land in investment on securities on which they are by the settlement, if any, or by law, authorized to invest trust money, with power to vary investments, and shall accumulate the income of the investments so made in the way of compound interest, by similarly investing such income and the resulting income of investments; and shall stand possessed of the accumulated fund arising from income of the land and from investments of income on the trusts following, namely:

(a) If the infant attains the age of 18 years, then in trust for the infant;

(b) If the infant dies while an infant, then, where the infant was, under a settlement, tenant for life, or by purchase tenant in tail, or tail male or tail female, on the trusts, if any, declared of the accumulated fund by that settlement; but where no such trusts are declared, or the infant has taken the land from which the accumulated fund is derived by descent, and not by purchase, or the infant is tenant for an estate in fee simple, absolute or determinable, then in trust for the infant's personal representatives, as part of the infant's personal estate –

but the accumulations, or any part thereof, may at any time be applied as if the same were income arising in the then current year.

(6)  Where the infant's estate or interest is in an undivided share of land, the powers of this section relative to the land may be exercised jointly with persons entitled to possession of, or having power to act in relation to, the other undivided share or shares.

(7)  This section applies only if and as far as a contrary intention is not expressed in the instrument under which the interest of the infant arises, and shall have effect subject to the terms of that instrument and to the provisions therein contained.

(8)  This section applies only where that instrument comes into operation after the commencement of this Act.

47.   Application by trustees of income of property of infant for maintenance, &c.

(1)  [Section 47 Subsection (1) amended by No. 21 of 1973, s. 5 and Sched. 1 ]Where any property is held by trustees in trust for an infant, either for life, or for any greater interest, and whether absolutely, or contingently on his attaining the age of 18 years, or on the occurrence of any event before his attaining that age, the trustees may, at their sole discretion, pay to the infant's parent or guardian, if any, or otherwise apply for or towards the infant's maintenance, education, or benefit, the income of that property or any part thereof, whether there is any other fund applicable to the same purpose, or any person bound by law to provide for the infant's maintenance or education, or not.

(2)  The trustees shall accumulate all the residue of that income in the way of compound interest, by investing the same and the resulting income thereof from time to time on securities on which they are by the settlement, if any, or by law authorized to invest trust money, and shall hold those accumulations for the benefit of the person who ultimately becomes entitled to the property from which the same arise; but so that the trustees may at any time, if they think fit, apply those accumulations or any part thereof as if the same were income arising in the then current year.

(3)  This section applies only if and as far as a contrary intention is not expressed in the instrument under which the interest of the infant arises, and shall have effect subject to the terms of that instrument and to the provisions therein contained.

(4)  This section applies whether that instrument comes into operation before or after the commencement of this Act.

48.   Power of guardians of minors to surrender and renew leases by order of Court

[Section 48 Inserted by 26 Geo. V No. 97, s. 3 ]

(1)  Where any infant is entitled to any lease made or granted for the life of any person, or for any term of years, either absolute or determinable upon the death of any person or otherwise, such infant, or his guardian, or other person on his behalf, may apply to the Court, in a summary way; and by the order and direction of the Court such infant, or his guardian, or any person appointed in the place of such infant by the Court may, by deed, surrender such lease, and accept and take, in the place and for the benefit of such infant, a new lease of the premises comprised in such lease so surrendered for and during such number of lives, or for such term of years determinable upon such number of lives, or for such term of years absolute, as was mentioned or contained in the lease so surrendered at the making thereof, or otherwise as the Court shall direct.

(2)  Every sum of money and other consideration paid by any guardian or other person as or in the nature of a fine, premium, or income for the renewal of any such lease, and all reasonable charges incident thereto, shall be paid out of the estate or effects of the infant for whose benefit the lease shall be renewed, or shall be a charge upon the leasehold premises, together with interest for the same, as the Court shall direct.

(3)  Every lease to be renewed as aforesaid shall operate and be to the same uses, and be liable to the same trusts, charges, incumbrances, dispositions, devises, and conditions as the lease to be surrendered would have been subject to in case such surrender had not been made.

49.   Infants empowered to grant renewals of leases

[Section 49 Inserted by 26 Geo. V No. 97, s. 3 ][Section 49 Amended by 25 Geo. V No. 78 ]Where any infant might, in pursuance of any covenant or agreement, if not under disability, be compelled to renew any lease made or to be made for the life of any person, or for any term or number of years absolute or determinable on the death of any person, such infant, or his guardian in the name of such infant, may, by the direction of the Court, to be signified by an order to be made in a summary way upon the application of such infant or his guardian, or of any person entitled to such renewal, accept a surrender of such lease, and make and execute a new lease of the premises comprised in such lease, for and during such number of lives, or for such term determinable upon such number of lives, or for such term of years absolute, as was mentioned in the lease so surrendered at the making thereof, or otherwise, as the Court by such order shall direct.

50.   Power of Court to authorize lease when for benefit of estate

[Section 50 Inserted by 26 Geo. V No. 97, s. 3 ][Section 50 Amended by No. 51 of 1985, s. 4 and Sched. 2, Pt. II ]Where any infant is seised or possessed of or entitled to any land in fee or in tail, or to any leasehold land for an absolute interest, and it shall appear to the Court to be for the benefit of such infant that a lease or under-lease should be made of such estates for terms of years, for encouraging the erection of buildings thereon, or for repairing buildings actually being thereon, or otherwise improving the same, or for farming or other purposes, such infant, or his guardian in the name of such infant, may, by the direction of the Court, to be signified by an order to be made in a summary way upon the application of such infant or his guardian, to make such lease of the land or any part thereof, according to his interest therein, and to the nature of the tenure of such estates respectively, for such term of years, and subject to such rents and covenants as the Court shall direct; but in no such case shall any fine or premium be taken, and in every such case the best rent that can be obtained, regard being had to the nature of the lease, shall be reserved upon such lease; and the leases, and covenants and provisions therein, shall be settled and approved of by the Court, and a counterpart of every such lease shall be executed by the lessee therein to be named, and such counterpart shall be deposited for safe custody in the office of the Court until such infant shall attain 18, but with liberty to proper parties to have the use thereof, if required in the meantime, for the purpose of enforcing any of the covenants therein contained.

51.   When persons to renew are out of the jurisdiction

[Section 51 Inserted by 26 Geo. V No. 97, s. 3 ]

(1)  Where any person who, in pursuance of any covenant or agreement in writing, might, if within the jurisdiction and amenable to the process of the Court, be compelled to execute any lease by way of renewal, shall not be within the jurisdiction or not amenable to the process of the Court, the Court, by an order to be made upon the petition of any of the persons entitled to such renewal (whether such person be or be not under any disability), may direct such person as the Court shall think proper to appoint for that purpose to accept a surrender of the subsisting lease, and make and execute a new lease in the name of the person who ought to have renewed the same.

(2)  Such deed, executed by the person appointed as aforesaid, shall be as valid as if the person in whose name the same is made had executed the same, and had been alive and not under any disability.

(3)  In every such case it shall be in the discretion of the Court, if under the circumstances it shall seem requisite, to direct proceedings to be instituted to establish the right of the party seeking the renewal, and not to make the order for such new lease, except by the order to be made in such proceedings, or until after such order shall have been made.

52.   Fines to be paid before renewal executed

[Section 52 Inserted by 26 Geo. V No. 97, s. 3 ]

(1)  No renewed lease shall be executed by virtue of this Act, in pursuance of any covenant or agreement, unless the fine, if any, or such other sum of money, if any, as ought to be paid on such renewal, and such things, if any, as ought to be performed in pursuance of such covenant or agreement, by the lessee or tenant, be first paid and performed.

(2)  Counterparts of every such renewed lease shall be duly executed by the lessee.

(3)  Every lease and surrender executed in pursuance of this Act shall be as valid and effectual as if the infant, by or on whose behalf the same is executed, had been of full age.

53.   Application of premiums

[Section 53 Inserted by 26 Geo. V No. 97, s. 3 ]

(1)  All fines, premiums, and sums of money which shall be had, received, or paid for or on account of the renewal of any lease, after deduction of all necessary incidental charges and expenses, shall be paid, if such renewal shall be made by or in the name of an infant, to his guardian, and be applied and disposed of for the benefit of such infant, in such manner as the Court shall direct.

(2)  If such renewal shall be made in the name of any person out of jurisdiction or not amenable as aforesaid, all such fines, premiums, and sums of money shall be paid to such person or in such manner, or into Court to such account, and to be applied and disposed of as the Court shall direct.

54.   Power of Court to order dividends to be applied for maintenance, &c.

[Section 54 Inserted by 26 Geo. V No. 97, s. 3 ][Section 54 Amended by No. 51 of 1985, s 4 and Sched. 2, Pt. II ]The Court, by order to be made on the petition of the guardian of any infant in whose name any stock is standing, or any sum of money, by virtue of any Act, for paying off any stock, and who shall be beneficially entitled thereto, or if there shall be no guardian, by order to be made in any cause depending in the Court, may direct all or any part of the dividends due or to become due in respect of such stocks, or any such sum of money, to be paid to any guardian of such infant, or to any other person, according to the discretion of such Court, for the maintenance and education or otherwise for the benefit of the infant, such guardian or other person to whom such payment shall be directed to be made being named in the order directing such payment; and the receipt of such guardian or other person for such dividends or sum of money, or any part thereof, shall be as effectual as if such infant had attained the age of 18 years, and had signed and given the same.

55.   Power of Court to direct that costs be paid from lands or from dividends, &c.

[Section 55 Inserted by 26 Geo. V No. 97, s. 3 ]The Court may order the costs and expenses of and relating to any proceedings, orders, and directions to be made in pursuance of this Part, or any of them, to be paid and raised out of or from the lands or stock or the rents or dividends in respect of which the same respectively shall be made, in such manner as the Court shall think proper.

PART X - Rent-Charges and Other Annual Sums: Judgments

56.   Remedies for recovery of annual sums charged on land

[Section 56 Amended by 26 Geo. V No. 97, s. 3 ]

(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 or 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 same shall have such remedies for recovering and compelling payment of the same 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 21 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 40 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 charge, 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 mortgage, or sale, or demise for all or any part of the term of the land charged, or of any part thereof, or by receipt of the income thereof, or by all or any of those means, 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; and the surplus, if any, of the money raised, or of the income received, under the trusts of that 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.

(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 shall have effect subject to the terms of that instrument and to the provisions therein contained.

(6)  This section applies only where that instrument comes into operation after the commencement of this Act.

57.   Release of part of land not an extinguishment of whole rent-charge

[Section 57 Inserted by 26 Geo. V No. 97, s. 3 ]The release from a rent-charge of part of the land charged therewith shall not extinguish the whole rent-charge, but shall operate only to bar the right to recover any part of the rent-charge out of the land released, without prejudice nevertheless to the rights of all persons interested in the land remaining unreleased and not concurring in or confirming the release.

58.   Release of part of land not to affect judgment as to residue

[Section 58 Inserted by 26 Geo. V No. 97, s. 3 ]The release from a judgment (including a writ or order imposing a charge) of part of any land charged therewith shall not affect the validity of the judgment as to the land remaining unreleased, or as to any other property not specifically released, without prejudice nevertheless to the rights of all persons interested in the land or property remaining unreleased, and not concurring in or confirming the release.

PART XI - Construction and Effect of Deeds and Other Instruments

Division 1 - [Division 1 of Part XI Heading inserted by No. 10 of 2000, s. 4, Applied:28 Apr 2000] Deeds and other instruments, including conveyances of chambers

59.   Land and interests therein lie in grant only

[Section 59 Inserted by 26 Geo. V No. 97, s. 3 ]

(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.

60.   Conveyances to be by deed

[Section 60 Inserted by 26 Geo. V No. 97, s. 3 ]

(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; but this provision does not apply to –

(a) assents by a personal representative;

(b) disclaimers made in accordance with the law relating to bankruptcy, 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; or

(g) conveyances taking effect by operation of law.

(2)  Except as hereinafter provided –

(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 authorized 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; and

(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 authorized in writing, or by will –

but this provision does not affect the creation or operation of resulting, implied, or constructive trusts.

(3)  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 authorized in writing, have, notwithstanding any consideration having been given for the same, the force and effect of interests at will only.

(4)  This section shall not affect the creation by parol of a lease taking effect in possession for a term not exceeding 3 years (whether or not the lessee is given power to extend the term) at the best rent that can be reasonably obtained without taking a fine.

(5)  Nothing in subsections (2) , (3) , or (4) shall –

(a) invalidate dispositions by will;

(b) affect any interest validly created before the commencement of this Act;

(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.

61.   Conditions and covenants: In what cases not implied, &c.

[Section 61 Inserted by 26 Geo. V No. 97, s. 3 ]

(1)  In respect of instruments executed after 1st January 1847 –

(a) an exchange or partition made by deed does not imply any condition in law;

(b) the word "give" or the word "grant" does not imply any covenant in law, except as otherwise provided by statute;

(c) 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; and

(d) a deed between parties, to effect its objects, has the effect of an indenture though not indented or expressed to be an indenture.

(2)  Any conveyance made after 18th September 1874 of freehold land to any person without words of limitation, or any similar 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.

62.   Conveyance by person to himself: Bodies corporate, joint tenancies

[Section 62 Inserted by 26 Geo. V No. 97, s. 3 ]

(1)  [Section 62 Subsection (1) amended by No. 7 of 2019, s. 29, Applied:08 May 2019] In a conveyance made after–

(a) 4th October 1860, personal property, including chattels real;

(b) 31st December 1883, 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, after the last-mentioned date, freehold land or a thing in action may, in like manner, be conveyed by a husband to his spouse, and by a wife to her spouse, alone or jointly with another person.

(2)  After 31st December 1935, a person may convey land to, or vest land in, himself.

(3)  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 person; 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.

(4)  A body corporate shall be capable of acquiring and holding any real or personal property in joint tenancy in the same manner as if it were an individual.

(5)  Such acquisition and holding shall be subject to the like conditions and restrictions as attach to the acquisition and holding of property by a body corporate in severalty.

(6)  Where –

(a) a body corporate and an individual; or

(b) two or more bodies corporate –

become entitled to any property under circumstances, or by virtue of any instrument, which, if the body corporate were an individual would have created a joint tenancy, they shall be entitled to the property as joint tenants.

(7)  On the dissolution of a body corporate holding property as a joint tenant the property shall devolve on the other joint tenant.

63.   Execution and attestation of deeds

[Section 63 Inserted by 26 Geo. V No. 97, s. 3 ][Section 63 Substituted by No. 10 of 2000, s. 5, Applied:28 Apr 2000]

(1)  The following rules govern the execution of a deed:

(a) a natural person executes a deed by signing, or making a mark on, the deed;

(b) a body corporate is not required to execute a deed by affixing its common seal unless it is so required by the enactment under which it is created or by any other law relating to the execution of deeds;

(c) a deed may be executed on behalf of a party to a deed –

(i) by an attorney acting under an authority conferred by the deed; or

(ii) where a party is a natural person, by a person acting at the direction, and in the presence, of the party.

(2)  The execution of a deed must be attested –

(a) where the deed is executed by a natural person, by at least one witness who is not a party to the deed; and

(b) where the deed is executed by a person acting at the direction, and in the presence, of a party, by a person who is authorised by law to take affidavits.

(3)  Delivery and indenting are not necessary in any case.

(4)  Notwithstanding the defective execution of a deed by or on behalf of a party to the deed, the execution is taken to be valid if it appears from evidence external to the deed that the party intended to be bound by it.

(5)  Notwithstanding any other law, an instrument executed in accordance with this section is a deed if –

(a) the instrument is expressed to be an indenture or deed; or

(b) the instrument is expressed to be sealed and delivered or, in the case of an instrument executed by a natural person, to be sealed; or

(c) it appears from the circumstances of the execution of the instrument or from the nature of the instrument that the parties intended it to be a deed.

63A.   

[Section 63A Inserted by No. 101 of 1973, s. 4 ][Section 63A Subsection (1) amended by No. 51 of 1985, s. 4 and Sched. 2, Pt. II ][Section 63A Repealed by No. 10 of 2000, s. 5, Applied:28 Apr 2000] .  .  .  .  .  .  .  .  

64.   Construction of "month", "person", and the singular and the masculine in deeds and other instruments

[Section 64 Inserted by 26 Geo. V No. 97, s. 3 ]In all deeds, contracts, wills, orders, and other instruments executed, made, or coming into operation after the commencement of this Act, unless the contrary intention appears –

(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.

65.   Words of limitation in tail

(1)  In a deed it shall be sufficient, in the limitation of an estate in tail, to use the words in tail, without the words heirs of the body; and 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.

(2)  This section applies only to deeds executed after the commencement of this Act.

66.   Construction of supplemental or annexed deed

(1)  A deed expressed to be supplemental to a previous deed, or directed to be read as an annex thereto, shall, as far as may be, be read and have effect as if the deed so expressed or directed were made by way of endorsement on the previous deed, or contained a full recital thereof.

(2)  This section applies to deeds executed either before or 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 endorsed on the deed.

(2)  This section applies only to deeds executed after the commencement of this Act.

68.   Receipt in deed or endorsed, evidence for subsequent purchaser

(1)  A receipt for consideration money or other consideration in the body of a deed or endorsed 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 only to deeds executed after the commencement of this Act.

69.   Receipt in deed or endorsed, authority for payment to Australian legal practitioner

(1)  [Section 69 Subsection (1) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] Where an Australian legal practitioner produces a deed, having in the body thereof or endorsed thereon a receipt for consideration money or other consideration, the deed being executed, or the endorsed receipt being signed, by the person entitled to give a receipt for that consideration, the deed shall be sufficient authority to the person liable to pay or give the same for his paying or giving the same to the Australian legal practitioner, without the Australian legal practitioner 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 only in cases where consideration is to be paid or given after the commencement of this Act.

70.   Form of deeds in Schedule 2: Sufficiency of

Deeds in the form of and using the expressions in the forms given in Schedule 2 shall, as regards form and expression in relation to the provisions of this Act, be sufficient.

71.   Benefit of covenant relating to land

[Section 71 Substituted by No. 72 of 1962, s. 4 ]

(1)  A covenant relating to 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 those successors and other persons were expressed.

(2)  For the purposes of subsection (1) , in connection with covenants restrictive of the use 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.

(3)  This section applies to covenants made after the commencement of the Local Government Act 1962 , but the repeal of this section as it stood at the commencement of that Act does not affect the completion of covenants made before the commencement of that Act.

71A.   Burden of covenants relating to land

[Section 71A Inserted by No. 72 of 1962, s. 4 ]

(1)  A covenant relating to land of a covenantor or capable of being bound by him, shall, unless a contrary intention is expressed –

(a) 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

(b) have effect as if such successors and other persons were expressed.

(2)  Subsection (1) 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.

(3)  For the purposes of this section, in connection with covenants restrictive of the use of land, successors in title shall be deemed to include owners and occupiers for the time being of the land.

(4)  This section applies only to covenants made after its commencement.

71B.   Fencing provisions

[Section 71B Inserted by No. 67 of 1964, s. 4 ]Where an instrument provides that the vendor shall not be required to fence it shall have the same effect as if it had provided that –

(a) notwithstanding anything contained or implied in the Boundary Fences Act 1908 , the vendor shall not be required to contribute to the cost of erecting, repairing, or maintaining any boundary fence between the sold land and any adjoining land belonging to the vendor;

(b) the vendor shall at all times be indemnified and kept indemnified by the purchaser, his personal representatives and assigns against all claims and demands in respect of any such boundary fences; and

(c) the provision shall cease and determine when and so soon as the adjoining land of the vendor shall be sold for valuable consideration.

72.   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.

(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 shall have effect subject to the covenant, contract, bond, or obligation, and to the provisions therein contained.

(4)  This section applies only to a covenant, contract, bond, or obligation made or implied after the commencement of this Act.

73.   Effect of advance expressed to be on joint account, &c.

(1)  Where 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 a mortgage, or such an obligation, or such a transfer is made to more persons than one, jointly and not in shares, the mortgage money or other money, or money's worth for the time being due to those persons on the mortgage or obligation, shall be deemed to be and remain money or money's worth belonging to those persons on a joint account, as between them and the mortgagor or obligor; and the receipt in writing of the survivors or last survivor of them, or of the personal representatives 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 only if and as far as a contrary intention is not expressed in the mortgage, or obligation, or transfer, and shall have effect subject to the terms of the mortgage, or obligation, or transfer, and to the provisions therein contained.

(3)  This section applies only to a mortgage, or obligation, or transfer made after the commencement of this Act.

74.   Grants of easements by way of use

(1)  A conveyance of freehold land to the use that any person may have, for an estate or interest not exceeding in duration the estate conveyed in the land, any easement, right, liberty, or privilege in, or over, or with respect to that land, or any part thereof, shall operate to vest in possession in that person that easement, right, liberty, or privilege, for the estate or interest expressed to be limited to him; and he, and the persons deriving title under him, shall have, use, and enjoy the same accordingly.

(2)  This section applies only to conveyances made after the commencement of this Act.

75.   Conveyances to pass all the estate, &c.

(1)  Every conveyance shall, by virtue of this Act, be 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 shall have effect subject to the terms of the conveyance and to the provisions therein contained.

(3)  This section applies only to conveyances made after the commencement of this Act.

75A.   Conveyance of chambers, flats, &c.

[Section 75A Inserted by No. 72 of 1962, s. 5 ]

(1)  In this section chamber includes a suite of chambers.

(2)  In a conveyance of an estate in a chamber in a building –

(a) there shall be implied –

(i) a grant of such easements as may be necessary for the reasonable enjoyment of the chamber; and

(ii) a reservation of such easements as may be necessary for the reasonable enjoyment of the rest of the building;

(b) covenants binding the purchaser shall be deemed, unless the contrary intention appears, to be –

(i) intended to bind the owner for the time being of the chamber;

(ii) for the benefit and protection of the whole building and its curtilage and the other chambers therein and every part thereof; and

(iii) made with the vendor and the owners of the other chambers in the building; and

(c) covenants binding the vendor shall be deemed, unless the contrary intention appears, to be –

(i) intended to bind the owner for the time being of any part of the building retained by the vendor; and

(ii) for the benefit and protection of the chamber conveyed.

(3)  If in a conveyance of an estate in a chamber or in a deed accompanying such a conveyance are set forth the short provisions contained in Schedule 6 , the long provisions respectively set forth thereunder shall be implied as fully and effectually as if they were set forth fully and in words at length in the conveyance or deed, except so far as they may be altered, and added to in the conveyance or deed and where the word vendor or the word purchaser is used it includes all and each of the vendors or purchasers as the case may be, if more than one, and implies a joint and several covenant on their behalf.

(4)  [Section 75A Subsection (4) omitted by No. 23 of 1992, s. 27 and Sched. 1 ].  .  .  .  .  .  .  .  

75B.   Destruction of upper chambers

[Section 75B Inserted by No. 72 of 1962, s. 5 ]

(1)  [Section 75B Subsection (1) substituted by No. 10 of 2000, s. 6, Applied:28 Apr 2000] Subject to this section, where a chamber is owned by a person other than the owner of the underlying soil and –

(a) the building containing that chamber; or

(b) a building comprised in a building title plan registered under section 75CE  –

is destroyed, there is a continuance of the estate of the owner of the chamber, or the owner of a building of a kind mentioned in paragraph (b) .

(2)  [Section 75B Subsection (2) amended by No. 10 of 2000, s. 6, Applied:28 Apr 2000] Where a building of a kind mentioned in subsection (1) is destroyed and the owners of the several parts of the building, including an owner of the underlying land who does not own a part of the building, do not agree on rebuilding, a court of equity may deal with them on the following principles:

(a) The building should be rebuilt, if it is reasonably possible, in the former or some other reasonable manner;

(b) No owner should by his inaction deprive other owners of the benefit of their rights; and

(c) The public interest requires that if the building is not to be rebuilt the land should become available for use unencumbered by rights to unoccupiable space.

(3)  Without prejudice to the breadth of the jurisdiction conferred by subsection (2) , in an action based on that subsection, the Court may, amongst other things –

(a) to get the building rebuilt –

(i) settle the plans and specifications;

(ii) give the carrying out of the rebuilding to one of the parties;

(iii) authorize the borrowing of money and charge the several parts of the building with repayment;

(iv) make a party elect between taking his part in the rebuilding and selling his interest; and

(v) where the building is to be rebuilt in a different manner from before, vary the rights of the parties inter se with pecuniary adjustment where equitable; and

(b) where the building is not to be rebuilt –

(i) order a sale of all interests in it or any one or more of them;

(ii) vest the land in the parties or some of them as tenants in common; or

(iii) divide the surface between the parties.

(4)  For the purposes of this section a building shall be deemed to be destroyed if through fire, earthquake, tempest, explosion, collapse, neglect, or other cause, it has become unusable wholly or in part.

(5)  Where a space above the surface of land –

(a) is owned by a person who does not own the surface; and

(b) has been unoccupied for 12 years –

it shall be deemed to have been occupied during that time and to be occupied thereafter by the occupier of the surface, to the intent that the rights of the owner of the space shall be barred as provided in the Acts for the limitation of actions.

(6)  [Section 75B Subsection (6) amended by No. 19 of 1980, s. 171 and Sched. 1 ]For the purposes of subsection (5) –

(a) no regard shall be had to a folio of the Register in respect of the space while it remained unoccupied; and

(b) an action based on subsection (2) to which the owner of the space is a party shall be deemed to be an action to recover possession of the space brought by him.

75C.   Repair and rebuilding of severally-owned buildings

[Section 75C Inserted by No. 72 of 1962, s. 5 ]

(1)  Where a chamber in a building is owned by a person other than the owner of the rest of the building and one or other owner wishes repairs to be made both to his own part and other parts of the building or that the building be rebuilt wholly or in part, and cannot have his wish because of want of legal power or failure to reach agreement with the other owner, a court of equity may, if it considers that –

(a) the proposed works will be for the benefit of all persons having an estate or interest in the building and the land on which it stands and –

(i) any want of legal power to co-operate in any such person ought to be supplied; or

(ii) any refusal to co-operate cannot be justified; or

(b) unless the proposed works are done all, or a majority in number or interest, of such persons will face greater expense –

decree those works to be done.

(2)  To give effect to a decree under this section the Court may exercise any power conferred by subsection (3) of section 75B .

(3)  [Section 75C Subsection (3) inserted by No. 10 of 2000, s. 7, Applied:28 Apr 2000] This section does not apply to a building in a scheme in force under the Strata Titles Act 1998 .

75CA.   Irregular boundary with highway

[Section 75CA Inserted by No. 37 of 1965, s. 2 ]

(1)  [Section 75CA Subsection (1) amended by No. 75 of 1973, s. 2 and Sched. 1 ]Where a building is built on land a boundary of which is a boundary of an adjoining highway and the building extends –

(a) under that highway without causing any nuisance thereto; or

(b) over –

(i) a footpath of that highway and at least 2·4 metres above it; or

(ii) the carriage-way of that highway and at least 4·25 metres above it –

the authority having the care and management of that highway may declare by deed that the extensions or any of them (in all cases specifying them) may remain so long as the building remains.

(2)  On the registration of such a deed in the Registry of Deeds or the office of the Recorder of Titles, in whichever the title to the land is registered, the extensions therein specified shall be deemed to have been granted by whoever was capable of granting them to the owner of the land in fee simple so long as the building remains.

(3)  This section applies similarly to land subject on the relevant boundary to part of the highway, in respect of extensions beyond that boundary.

Division 2 - Plans for vesting fee simple in buildings erected over or partly over rivulets vested in Hobart City Council

75CB.   Interpretation

[Section 75CB of Part XI Inserted by No. 10 of 2000, s. 8, Applied:28 Apr 2000] In this Division, unless the contrary intention appears –

building, used in reference to a building comprised in a building title plan, includes the building's supporting works;

building title plan means a plan on which a declaration is made under section 75CD ;

Council means the Hobart City Council;

[Section 75CB Amended by No. 9 of 2005, Sched. 1, Applied:01 Jul 2005]

[Section 75CB Amended by No. 9 of 2005, Sched. 1, Applied:01 Jul 2005] rivulet means any rivulet in the City of Hobart that is owned by the Council;

site means the whole surface of the land in a building title plan;

supporting works means any works within the site of a building that support the building, its curtilage or part of the building or curtilage;

town clerk means a general manager within the meaning of the Local Government Act 1993 .

75CC.   Application of Division

[Section 75CC of Part XI Inserted by No. 10 of 2000, s. 8, Applied:28 Apr 2000] Except as provided by section 75CD(8) , this Division is taken to have had effect on and from 17 January 1994.

75CD.   Vesting by plans of buildings over or partly over rivulets

[Section 75CD of Part XI Inserted by No. 10 of 2000, s. 8, Applied:28 Apr 2000]

(1)  The Council may, by declaration under its seal and endorsed on a building title plan in the prescribed form, declare that –

(a) the building comprised in the plan and erected entirely over a rivulet vests in a person for an estate in fee simple; or

(b) where the building comprised in the plan is erected partly over a rivulet and partly on adjoining land on one side of the rivulet, the part of the building over the rivulet vests in the owner of the adjoining land for an estate in fee simple; or

(c) where the building comprised in the plan is erected partly over a rivulet and partly on land on both sides of the rivulet, the part of the building over the rivulet vests in the owner of the adjoining lands for an estate in fee simple.

(2)  Subsection (1)(c) does not apply where the same owner does not own land on both sides of a rivulet.

(3)  A building title plan may be used to subdivide into lots the building comprised in the plan, notwithstanding that the site is not all in one ownership, and where the plan is so used the Strata Titles Act 1998 applies to it.

(4)  Where a building title plan is not intended to operate under the Strata Titles Act 1998 , there is to be endorsed on it a certificate under the hand of the town clerk of the Council that the building in the plan has been completed in accordance with the description contained in it.

(5)  The site shown on a building title plan is to extend at least to the external lateral surfaces of the building comprised in the plan.

(6)  Where a building title plan is not intended to operate under the Strata Titles Act 1998 , the plan –

(a) is to delineate the external surface boundaries of the site and the location of the building in relation to those boundaries; and

(b) is to bear a statement containing such particulars as are necessary to identify the title to the site; and

(c) is to bear a statement specifying the number of floors comprised in the building and the approximate area of each floor; and

(d) is to contain such other features as may be prescribed.

(7)  A statement for the purposes of subsection (6)(b) may be completed by the Recorder of Titles where any part of the land within the building title plan to which the statement relates is not under the Land Titles Act 1980 .

(8)  Where a building title plan was lodged with the Council during the period commenced on 17 January 1994 and ended on the date of commencement of the Strata Titles (Miscellaneous Amendments) Act 2000 , the plan is taken to have been subject to the Hobart Corporation Act 1963 as in force immediately before the first-mentioned date, notwithstanding the repeal of that Act by the Local Government Act 1993 .

75CE.   Lodging and registration of plans

[Section 75CE of Part XI Inserted by No. 10 of 2000, s. 8, Applied:28 Apr 2000]

(1)  A building title plan is to be lodged with the Recorder of Titles, together with –

(a) an application under section 11 of the Land Titles Act 1980 by each owner of the land comprised in the plan to bring under that Act so much of that land as is not already under that Act; and

(b) a map or plan under section 162 of that Act relating to each application.

(2)  If a building title plan is in order for registration and the whole of the land comprised in it has been brought under the Land Titles Act 1980 , the Recorder of Titles must register a memorial of the plan on each folio of the Register for the land and must –

(a) where the plan is not intended to operate under the Strata Titles Act 1998 , issue a separate folio of the Register for the building; or

(b) where the plan is intended to operate under the Strata Titles Act 1998 , issue a separate folio of the Register for each lot in the building.

(3)  A folio of the Register issued under subsection (2)(a) or (b) is to certify that a fee simple is vested in the person in whom it is declared to vest under section 75CD(1) and the fee simple so vests notwithstanding section 40 of the Land Titles Act 1980 .

(4)  The fee simple in the airspace above a rivulet and under and above a building remains vested in the Council.

75CF.   Provisions consequential on registration of plans

[Section 75CF of Part XI Inserted by No. 10 of 2000, s. 8, Applied:28 Apr 2000]

(1)  On the registration of a building title plan under section 75CE , there is implied a grant by the Council of such easements as may be necessary for the reasonable enjoyment of the building comprised in the plan.

(2)  Where a building comprised in a building title plan is subdivided into lots under the Strata Titles Act 1998  –

(a) notwithstanding anything contained in this Act, the supporting works form part of the common property; and

(b) no part of the supporting works may be conveyed as part of the sale of a lot or of the common property or as part of the site in a scheme under the Strata Titles Act 1998 .

75CG.   Amendment of building title plans

[Section 75CG of Part XI Inserted by No. 10 of 2000, s. 8, Applied:28 Apr 2000]

(1)  If there is –

(a) a lateral or vertical extension or diminution of the building comprised in a building title plan that is not intended to operate under the Strata Titles Act 1998 ; or

(b) an alteration in the number of floors in that building –

the Recorder of Titles must amend the description of the building comprised in the plan in accordance with an application made –

(c) jointly by the Council, the registered proprietor of the building and his or her mortgagees who are registered under the Land Titles Act 1980 ; or

(d) by any one or more of the persons referred to in paragraph (c) , after service of the application on the other or others of them.

(2)  The Recorder must not make an amendment under subsection (1) unless he or she is satisfied that it is in accordance with the extension or diminution of, or alteration made to, the building.

(3)  Where the Recorder refuses to amend the description of a building in accordance with an application made under subsection (1) , section 144 of the Land Titles Act 1980 applies, with the necessary modifications, as if the applicant was a proprietor, or the applicants were proprietors, who had made an application of a kind referred to in subsection (1) of that section which the Recorder had refused to grant.

(4)  A mortgage of a building comprised in a building title plan that is not intended to operate under the Strata Titles Act 1998 is to be secured on the building as it is from time to time described in the plan.

75CH.   Effect of folio of Register

[Section 75CH of Part XI Inserted by No. 10 of 2000, s. 8, Applied:28 Apr 2000] The effect of the issue of a folio of the Register under section 75CE(2)(a) is to vest a fee simple in the building to which it relates as it is from time to time described in the relevant building title plan, whether by the building's original description or after amendment in accordance with section 75CG(1) .

75CI.   Regulations

[Section 75CI of Part XI Inserted by No. 10 of 2000, s. 8, Applied:28 Apr 2000] The Governor may make regulations for the purposes of this Division.

PART XIA - .  .  .  .  .  .  .  .  

[Part XIA Inserted by No. 72 of 1962, s. 6 ][Part XIA Repealed by No. 17 of 1998, Sched. 3, Applied:05 Jun 1998]

75D.   

[Section 75D Inserted by No. 72 of 1962, s. 6 ][Section 75D Amended by No. 47 of 1966, s. 3 ][Section 75D Amended by No. 19 of 1980, s. 171 and Sched. 1 ][Section 75D Amended by No. 30 of 1995, s. 3 and Sched. 1 ][Section 75D Repealed by No. 17 of 1998, Sched. 3, Applied:05 Jun 1998] .  .  .  .  .  .  .  .  

75E.   

[Section 75E Inserted by No. 72 of 1962, s. 6 ][Section 75E Subsection (1) amended by No. 19 of 1980, s. 171 and Sched. 1 ][Section 75E Subsection (2) amended by No. 31 of 1973, s. 2 ][Section 75E Subsection (2) amended by No. 30 of 1995, s. 3 and Sched. 1 ][Section 75E Subsection (4) amended by No. 19 of 1980, s. 171 and Sched. 1 ][Section 75E Subsection (1) amended by No. 47 of 1966, s. 4 ][Section 75E Subsection (3) amended by No. 51 of 1985, s. 4 and Sched. 2, Pt. II ][Section 75E Subsection (4) amended by No. 47 of 1966, s. 4 ][Section 75E Subsection (5) inserted by No. 31 of 1973, s. 2 ][Section 75E Subsection (6) amended by No. 47 of 1996, s. 4 ][Section 75E Repealed by No. 17 of 1998, Sched. 3, Applied:05 Jun 1998] .  .  .  .  .  .  .  .  

75F.   

[Section 75F Inserted by No. 72 of 1962, s. 6 ][Section 75F Subsection (3) amended by No. 30 of 1995, s. 3 and Sched. 1 ][Section 75F Subsection (3A) inserted by No. 37 of 1965, s. 3 ][Section 75F Repealed by No. 17 of 1998, Sched. 3, Applied:05 Jun 1998] .  .  .  .  .  .  .  .  

75G.   

[Section 75G Inserted by No. 72 of 1962, s. 6 ][Section 75G Repealed by No. 17 of 1998, Sched. 3, Applied:05 Jun 1998] .  .  .  .  .  .  .  .  

75H.   

[Section 75H Inserted by No. 72 of 1962, s. 6 ][Section 75H Inserted by No. 24 of 1963, s. 2 ][Section 75H Repealed by No. 17 of 1998, Sched. 3, Applied:05 Jun 1998] .  .  .  .  .  .  .  .  

75J.   

[Section 75J Inserted by No. 72 of 1962, s. 6 ][Section 75J Repealed by No. 17 of 1998, Sched. 3, Applied:05 Jun 1998] .  .  .  .  .  .  .  .  

75K.   

[Section 75K Inserted by No. 72 of 1962, s. 6 ][Section 75K Repealed by No. 17 of 1998, Sched. 3, Applied:05 Jun 1998] .  .  .  .  .  .  .  .  

75L.   

[Section 75L Inserted by No. 72 of 1962, s. 6 ][Section 75L Subsection (2) amended by No. 19 of 1980, s. 171 and Sched. 1 ][Section 75L Repealed by No. 17 of 1998, Sched. 3, Applied:05 Jun 1998] .  .  .  .  .  .  .  .  

75M.   

[Section 75M Inserted by No. 72 of 1962, s. 6 ][Section 75M Subsection (6) amended by No. 19 of 1980, s. 171 and Sched. 1 ][Section 75M Subsection (5) amended by No. 47 of 1966, s. 5 ][Section 75M Subsection (7) omitted by No. 37 of 1965, s. 4 ][Section 75M Repealed by No. 17 of 1998, Sched. 3, Applied:05 Jun 1998] .  .  .  .  .  .  .  .  

75N.   

[Section 75N Inserted by No. 72 of 1962, s. 6 ][Section 75N Subsection (3) amended by No. 19 of 1980, s. 171 and Sched. 1 ][Section 75N Subsection (4) amended by No. 47 of 1966, s. 6 ][Section 75N Subsection (4) amended by No. 19 of 1980, s. 171 and Sched. 1 ][Section 75N Subsection (3) amended by No. 47 of 1966, s. 6 ][Section 75N Subsection (4) amended by No. 24 of 1963, s. 2 ][Section 75N Repealed by No. 17 of 1998, Sched. 3, Applied:05 Jun 1998] .  .  .  .  .  .  .  .  

75NA.   

[Section 75NA Inserted by No. 47 of 1966, s. 7 ][Section 75NA Subsection (2) amended by No. 19 of 1980, s. 171 and Sched. 1 ][Section 75NA Repealed by No. 17 of 1998, Sched. 3, Applied:05 Jun 1998] .  .  .  .  .  .  .  .  

75P.   

[Section 75P Inserted by No. 72 of 1962, s. 6 ][Section 75P Repealed by No. 17 of 1998, Sched. 3, Applied:05 Jun 1998] .  .  .  .  .  .  .  .  

75PA.   

[Section 75PA Inserted by No. 37 of 1962, s. 7 ][Section 75PA Subsection (1) amended by No. 47 of 1966, s. 8 ][Section 75PA Repealed by No. 17 of 1998, Sched. 3, Applied:05 Jun 1998] .  .  .  .  .  .  .  .  

75Q.   

[Section 75Q Inserted by No. 72 of 1962, s. 6 ][Section 75Q Subsection (2) amended by No. 47 of 1966, s. 9 ][Section 75Q Repealed by No. 17 of 1998, Sched. 3, Applied:05 Jun 1998] .  .  .  .  .  .  .  .  

75R.   

[Section 75R Inserted by No. 72 of 1962, s. 6 ][Section 75R Subsection (4) amended by No. 47 of 1966, s. 10 ][Section 75R Repealed by No. 17 of 1998, Sched. 3, Applied:05 Jun 1998] .  .  .  .  .  .  .  .  

75S.   

[Section 75S Inserted by No. 72 of 1962, s. 6 ][Section 75S Repealed by No. 17 of 1998, Sched. 3, Applied:05 Jun 1998] .  .  .  .  .  .  .  .  

75T.   

[Section 75T Inserted by No. 72 of 1962, s. 6 ][Section 75T Subsection (3) amended by No. 24 of 1963, s. 2 ][Section 75T Subsection (7) amended by No. 47 of 1966, s. 11 ][Section 75T Subsection (8) amended by No. 68 of 1994, s. 3 and Sched. 1 ][Section 75T Subsection (9) omitted by No. 47 of 1966, s. 11 ][Section 75T Repealed by No. 17 of 1998, Sched. 3, Applied:05 Jun 1998] .  .  .  .  .  .  .  .  

75U.   

[Section 75U Inserted by No. 72 of 1962, s. 6 ][Section 75U Repealed by No. 17 of 1998, Sched. 3, Applied:05 Jun 1998] .  .  .  .  .  .  .  .  

75V.   

[Section 75V Inserted by No. 72 of 1962, s. 6 ][Section 75V Subsection (2) amended by No. 47 of 1966, s. 12 ][Section 75V Repealed by No. 17 of 1998, Sched. 3, Applied:05 Jun 1998] .  .  .  .  .  .  .  .  

75W.   

[Section 75W Inserted by No. 72 of 1962, s. 6 ][Section 75W Repealed by No. 17 of 1998, Sched. 3, Applied:05 Jun 1998] .  .  .  .  .  .  .  .  

75X.   

[Section 75X Inserted by No. 72 of 1962, s. 6 ][Section 75X Repealed by No. 17 of 1998, Sched. 3, Applied:05 Jun 1998] .  .  .  .  .  .  .  .  

75Y.   

[Section 75Y Inserted by No. 72 of 1962, s. 6 ][Section 75Y Subsection (6) amended by No. 37 of 1965, s. 6 ][Section 75Y Subsection (8) omitted by No. 47 of 1966, s. 13 ][Section 75Y Repealed by No. 17 of 1998, Sched. 3, Applied:05 Jun 1998] .  .  .  .  .  .  .  .  

75Z.   

[Section 75Z Inserted by No. 72 of 1962, s. 6 ][Section 75Z Repealed by No. 17 of 1998, Sched. 3, Applied:05 Jun 1998] .  .  .  .  .  .  .  .  

75ZA.   

[Section 75ZA Inserted by No. 72 of 1962, s. 6 ][Section 75ZA Subsection (2) omitted by No. 47 of 1966, s. 14 ][Section 75ZA Subsection (5) amended by No. 37 of 1965, s. 7 ][Section 75ZA Repealed by No. 17 of 1998, Sched. 3, Applied:05 Jun 1998] .  .  .  .  .  .  .  .  

75ZB.   

[Section 75ZB Inserted by No. 72 of 1962, s. 6 ][Section 75ZB Repealed by No. 17 of 1998, Sched. 3, Applied:05 Jun 1998] .  .  .  .  .  .  .  .  

75ZBA.   

[Section 75ZBA Repealed by No. 68 of 1994, s. 3 and Sched. 1 ][Section 75ZBA Repealed by No. 17 of 1998, Sched. 3, Applied:05 Jun 1998] .  .  .  .  .  .  .  .  

75ZC.   

[Section 75ZC Inserted by No. 72 of 1962, s. 6 ][Section 75ZC Repealed by No. 17 of 1998, Sched. 3, Applied:05 Jun 1998] .  .  .  .  .  .  .  .  

PART XII - Powers

76.   Release of, or contract not to exercise, powers

(1)  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.

(2)  This section applies to powers created by instruments coming into operation either before or after the commencement of this Act.

77.   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 or others, or the survivors or survivor of the others, of the persons to whom the power is given, unless the contrary is expressed in the instrument creating the power.

(3)  This section applies to powers created by instruments coming into operation either before or after the commencement of this Act.

78.   Mode of execution of power

[Section 78 Inserted by 26 Geo. V No. 97, s. 3 ]A deed executed after 4th October 1860 in the presence of and attested by two or more witnesses in the manner in which deeds are ordinarily executed and attested, shall, so far as respects the execution and attestation thereof, be a valid execution of a power of appointment by deed or by any instrument in writing not testamentary, notwithstanding it may have been expressly required that a deed or instrument in writing made in exercise of such power should be executed or attested with some additional or other form of execution or attestation or solemnity: Provided always that this provision shall not operate to defeat any direction in the instrument creating the power that the consent of any particular person shall be necessary to a valid execution, or that any act shall be performed in order to give validity to any appointment, having no relation to the mode of executing and attesting the instrument, and nothing herein contained shall prevent the donee of a power from executing it conformably to the power by writing or otherwise than by an instrument executed and attested as an ordinary deed, and to any such execution of a power this provision shall not extend.

PART XIII - Executory Limitations: Contingent Interests: Reversions

79.   Executory limitations: Restriction of

(1)  Where there is a person entitled to land for an estate in fee, or for a term of years absolute or determinable on life, or for a term of life, with an executory limitation over on default or failure of all or any of his issue, whether within or at any specified period of 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 21 years, of the class on default or failure whereof the limitation over was to take effect.

(2)  This section applies only where the executory limitation is contained in an instrument coming into operation after the commencement of this Act.

80.   Contingent and certain other interests made alienable by deed: Protection against failure of reversion

[Section 80 Inserted by 26 Geo. V No. 97, s. 3 ]

(1)  A contingent, an executory, and a future interest, and a possibility coupled with an interest, in any tenements or hereditaments of any tenure, whether the object of the gift or limitation of such interest or possibility be or be not ascertained, also a right of entry whether immediate or future, and whether vested or contingent, into or upon any tenements or hereditaments of any tenure, may be disposed of by deed, but no such disposition shall by force only of this Act defeat or enlarge an estate tail.

(2)  A contingent remainder shall be capable of taking effect notwithstanding the determination by forfeiture, surrender, or merger of any preceding estate of freehold, in the same manner in all respects as if such determination had not happened.

81.   Cases in which contingent remainders capable of taking effect as if originally springing or shifting uses, &c.

[Section 81 Inserted by 26 Geo. V No. 97, s. 3 ]Every contingent remainder created after 10th September 1878, in tenements or hereditaments of any tenure, which would have been valid as a springing or shifting use or executory devise or other limitation had it not had a sufficient estate to support it as a contingent remainder, shall, in the event of the particular estate determining before the contingent remainder vests, be capable of taking effect in all respects as if the contingent remainder had originally been created as a springing or shifting use or executory devise or other executory limitation.

82.   When reversion on lease fails next estate to become reversion

[Section 82 Inserted by 26 Geo. V No. 97, s. 3 ][Section 82 Amended by 25 Geo. V No. 78 ]When the reversion expectant on a lease of any tenements or hereditaments of any tenure is surrendered or merged, the estate which for the time being confers the next vested right to the land shall be deemed the reversion for the purpose of preserving such incidents to, and obligations on, the reversion, as but for the surrender or merger thereof would have subsisted, and be deemed the reversion expectant on the lease.

PART XIV - Long Terms

83.   Enlargement of residue of long term into fee simple

(1)  Where a residue unexpired of not less than 200 years of a term which, as originally created, was for not less than 300 years, is subsisting in land, whether being the whole land originally comprised in the term, or part only thereof, 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 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, then the term may be enlarged into a fee simple in the manner, and subject to the restrictions, in this section provided.

(2)  Each of the following persons, namely:

(a) 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; but, in case of a married woman, with the concurrence of her husband, unless she is entitled for her separate use, whether with restraint on anticipation or not, and then without his concurrence;

(b) 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;

(c) Any person in whom, as personal representative of any deceased person, the term is vested whether subject to any incumbrance or not –

shall, as 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.

(3)  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.

(4)  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.

(5)  [Section 83 Subsection (5) amended by 25 Geo. V No. 78 ]Where 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 as far as the law permits, and 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, then 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 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.

(6)  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.

(7)  This section applies to and includes every such term as aforesaid subsisting at or after the commencement of this Act, whether having as the immediate reversion thereon the freehold or not; but not –

(a) any term liable to be determined by re-entry for condition broken; or

(b) any term created by sub-demise out of a superior term itself incapable of being enlarged into a fee simple.

PART XV - Adoption of Act

84.   Protection of Australian legal practitioner and trustees adopting this Act

(1)  [Section 84 Subsection (1) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] It is hereby declared that the powers given by this Act to any person, and the covenants, provisions, stipulations, and words which under this Act are to be deemed included or implied in any instrument, or are by this Act made applicable to any contract for sale or other transaction, 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 connection with, or applied to, any such contract or transaction; and an Australian legal practitioner 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 connection 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)  Nothing in this Act shall be taken to imply that the insertion in any such instrument, or the adoption in connection with, or the application to, any contract or transaction of any further or other powers, covenants, provisions, stipulations, or words is improper.

(3)  [Section 84 Subsection (3) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] Where the Australian legal practitioner is acting for trustees, executors, or other persons in a fiduciary position, those persons shall also be protected in like manner.

(4)  [Section 84 Subsection (4) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] Where such persons are acting without an Australian legal practitioner, they shall also be protected in like manner.

PART XVA - Determination and Variation of Certain Interests Affecting the User of Land

[Part XVA Inserted by No. 3 of 1978, s. 3 ]

84A.   Interpretation of Part XVA

[Section 84A Inserted by No. 3 of 1978, s. 3 ][Section 84A Amended by No. 19 of 1980, s. 171 and Sched. 1 ][Section 84A Amended by No. 30 of 1995, s. 3 and Sched. 1 ]In this Part –

appropriate tribunal means the Supreme Court or the Recorder, whichever, pursuant to section 84F or section 84G , has the jurisdiction of the appropriate tribunal in relation to the application, proceedings, or order in respect of which the expression is used;

corporation means a council;

municipality means a municipal area;

overriding interest means –

(a) any condition or covenant, not arising under a lease or an agreement for a lease, that has the effect of imposing a restriction on the use of the land subject to it;

(b) any easement or profit a prendre to which any land is subject;

(c) any restriction on the use of land arising by reason of a notation on a folio of the Register or on any map or plan lodged in the office of the Recorder;

(d) any statutory right of user referred to in section 84J ;

plan of subdivision means a sealed plan within the meaning of Division 1 of Part 3 of the Local Government (Building and Miscellaneous Provisions) Act 1993 ;

Recorder means the Recorder of Titles.

84B.   Determination of existence, &c., of overriding interests

[Section 84B Inserted by No. 3 of 1978, s. 3 ]

(1)  On an application by a person interested the appropriate tribunal may, by order –

(a) declare whether or not, by virtue of the instrument specified in the order, any land is subject to an overriding interest;

(b) declare what, on the true construction of an instrument purporting to create an overriding interest, is the nature and extent of that interest and whether any person, and if so what person, is entitled to enforce the interest or exercise any rights conferred thereby.

(2)  The powers conferred by subsection (1) include power to declare that an overriding interest has been extinguished as a consequence of the conduct of the persons interested in the land affected by the interest or any circumstances arising since its creation.

84C.   Discharge or modification of overriding interests

[Section 84C Inserted by No. 3 of 1978, s. 3 ]

(1)  On the application of a person having an interest in land subject to an overriding interest (not being an overriding interest having effect by virtue of a plan of subdivision) the appropriate tribunal may, by order, extinguish or modify the interest if it is satisfied –

(a) that, by reason of changes in the character of the property or the neighbourhood or other circumstances of the case which it may deem material, the interest has become obsolete;

(b) that the continued existence of the interest would impede a user of the land in accordance with an interim order or planning scheme, or, as the case may be, would, unless modified, so impede such a user;

(c) that the continued existence of the interest would impede some reasonable user of the land for public or private purposes, not being a user referred to in paragraph (b) , or, as the case may be, would, unless modified, so impede such a user;

(d) that the persons of full age and capacity for the time being or from time to time entitled to the benefit of the interest have agreed, either expressly or by implication, to the extinguishment or modification of the interest; or

(e) that the proposed extinguishment or modification will not injure the persons entitled to the benefit of the interest.

(1A)  [Section 84C Subsection (1A) inserted by No. 16 of 1998, s. 6, Applied:05 Jun 1998] In the case of a parking easement, the appropriate tribunal may, by order, extinguish or modify the easement on any of the following grounds (which are in addition to those set out in subsection (1) ):

(a) the servient tenement has been destroyed or has been rendered incapable of being used for the purposes of the easement;

(b) the dominant tenement has been destroyed or has been rendered incapable of taking advantage of the parking easement;

(c) the easement was created for a particular purpose that no longer exists;

(d) the easement has expired or terminated, or has been terminated, under the conditions of the easement or under this Act.

(2)  An application may be made under this section in respect of any land notwithstanding that there may be uncertainty concerning the existence or nature of the overriding interest to which the application relates.

(3)  The fact that the rights conferred by an overriding interest are not being exercised and for the period of 20 years last past have not been exercised is prima facie evidence that the interest has become obsolete.

(4)  The power conferred by this section to modify an overriding interest includes power to create, in addition to the interest as modified or in substitution for that interest, a further overriding interest having the effect of restricting the user of the land in such manner, or creating such rights over the land, as appear to the tribunal to be reasonable in the circumstances, being an overriding interest that is capable of being created by the applicant and is accepted by him.

(5)  Without prejudice to provisions of subsection (4) , an order under this section with respect to any land may contain all or any of the following provisions, namely:

(a) A provision extinguishing all the overriding interests to which the land may be subject or all overriding interests of a particular kind to which it may be subject;

(b) A provision extinguishing any overriding interest, or any overriding interest of a particular kind, that may have arisen from a particular instrument or from particular transactions or circumstances;

(c) A provision creating a like overriding interest as may be created as mentioned in subsection (4) .

(6)  An overriding interest shall not be extinguished or modified under this section on the grounds referred to in subsection (1) (c) unless the tribunal is satisfied that the interest, in impeding the user of land, either –

(a) does not secure to persons entitled to the benefit of the interest any practical benefits of substantial value or advantage to them; or

(b) is contrary to the public interest –

and that money will be an adequate compensation for the loss or disadvantage (if any) that any such person will suffer from the extinguishment or modification.

(7)  An order under this section extinguishing or modifying an overriding interest may direct the applicant to pay any person entitled to its benefit such sum by way of compensation or consideration as the tribunal may think just to award under one, but not both, of the following heads, that is to say, either –

(a) a sum to make up for any loss or disadvantage suffered by that person in consequence of the discharge, extinguishment, or modification; or

(b) a sum to make up for any effect that the interest had, at the time when it was imposed, in reducing the consideration then received for the land affected by it.

(7A)  [Section 84C Subsection (7A) inserted by No. 16 of 1998, s. 6, Applied:05 Jun 1998] If a parking easement is extinguished, the tribunal may also order the owner of the dominant or servient tenement to compensate the other to the extent necessary to achieve an appropriate apportionment of the costs previously incurred in connection with the easement.

(8)  For the purposes of this section a person shall be deemed to have the benefit of an overriding interest if he has an estate in land to which the benefit of the interest is annexed or is appurtenant or if there is vested in him any right exercisable on the contravention of, or failure to observe or carry out, any condition, covenant, prohibition, or restriction that constitutes, or forms an element of, that overriding interest.

(9)  [Section 84C Subsection (9) amended by No. 68 of 1993, s. 3 ]In this section interim order and planning scheme have the same meanings as they have for the purposes of the Land Use Planning and Approvals Act 1993 .

84D.   Vesting of blocks subject to rights of way

[Section 84D Inserted by No. 3 of 1978, s. 3 ][Section 84D Subsection (14) amended by No. 30 of 1995, s. 3 and Sched. 1 ]

(1)  In this section servient land means a piece of land –

(a) that is subject to an easement in the exercise of which the person entitled to its benefit is entitled to pass over or go on to any part of that piece of land; or

(b) that appears from the documents of title relating to the land or any annotations or entries made thereon to have been intended to be used as if it were a piece of land that was subject to such an easement as is referred to in paragraph (a) .

(2)  In relation to any servient land references in this section to the dominant land shall be construed as references to any land to which there is appurtenant an easement giving a right to any person to pass over or go on the whole or any part of that servient land and, where it appears, as mentioned in subsection (1) (b) , that the servient land was intended for use as a means of access to any other land, that other land.

(3)  On the application of the owner of any dominant land the appropriate tribunal may, by order, direct that the servient land, or such part of it as may be specified in the order, be vested in him as an addition to such of the dominant land owned by him as may be so specified, and if it does so direct, it may further direct whether or not on being so vested it shall remain or become subject to any specified easement.

(4)  [Section 84D Subsection (4) amended by No. 30 of 1995, s. 3 and Sched. 1 ]An order shall not be made under this section directing the vesting of part only of the servient land as an addition to any dominant land unless –

(a) it is in accordance with a previously approved plan or a sealed plan within the meaning of the Local Government (Building and Miscellaneous Provisions) Act 1993 ; or

(b) a certificate is produced from the corporation of the municipality in which the servient land is situated that the transaction directed by the order is not in contravention of that Act.

(5)  An order shall not be made under this section in relation to servient land unless the owners of the whole of the dominant land agree to its terms.

(6)  An order under this section directing the vesting of land in any person may direct that person to pay to any person divested by virtue of the order of an estate in that land such sum as the tribunal thinks just to award.

(7)  [Section 84D Subsection (7) amended by No. 19 of 1980, s. 171 and Sched. 1 ]Where an order is made under this section directing the addition of land to dominant land the addition shall be effected by the creation of one folio of the Register for the dominant land and the land to be added, in which the dominant land and the land to be added are described as one parcel of land.

(8)  [Section 84D Subsection (8) amended by No. 23 of 2021, s. 11, Applied:01 Jan 2022] [Section 84D Subsection (8) amended by No. 19 of 1980, s. 171 and Sched. 1 ]An application for the creation of such a folio as is referred to in subsection (7) shall be made to the Recorder by the registered proprietor of the dominant land or, if that land is not under the Land Titles Act 1980 , by the person competent to bring the land under that Act; but the Recorder shall not consider the application unless there is provided to the Recorder –

(a) [Section 84D Subsection (8) amended by No. 23 of 2021, s. 11, Applied:01 Jan 2022] the certificate of title, if any, of the land; or

(b) [Section 84D Subsection (8) amended by No. 23 of 2021, s. 11, Applied:01 Jan 2022] an application to dispense with the requirement to provide to the Recorder the certificate of title, if any, of the land; or

(c) [Section 84D Subsection (8) amended by No. 23 of 2021, s. 11, Applied:01 Jan 2022] evidence that will enable the Recorder to bring the land under the Land Titles Act 1980 .

(9)  [Section 84D Subsection (9) amended by No. 19 of 1980, s. 171 and Sched. 1 ]An application for the purposes of subsection (8) in respect of any dominant land has effect as an application to bring under the Land Titles Act 1980 so much of that land and the land to be added thereto as is not under that Act.

(10)  [Section 84D Subsection (10) amended by No. 19 of 1980, s. 171 and Sched. 1 ]A folio created under this section shall be created in accordance with the terms of the order under which it is made and, subject to those terms, has effect to extinguish all estates and interests previously subsisting in the land added by the folio to the dominant land.

(11)  [Section 84D Subsection (11) substituted by No. 19 of 1980, s. 171 and Sched. 1 ]On the creation of a folio under this section any mortgage or encumbrance to which the dominant land contained within the folio is subject extends to the whole of the land within the folio.

(12)  [Section 84D Subsection (12) substituted by No. 19 of 1980, s. 171 and Sched. 1 ] Section 32 of the Land Titles Act 1980 applies to the description of land in a folio created under this section as if the words "pursuant to this Part (other than Division 1)" were omitted from subsection (1) of that section .

(13)  [Section 84D Subsection (13) omitted by No. 19 of 1980, s. 171 and Sched. 1 ].  .  .  .  .  .  .  .  

(14)  [Section 84D Subsection (14) amended by No. 19 of 1980, s. 171 and Sched. 1 ]The land comprised within a folio of the Register created for the purposes of subsection (7) shall be deemed to constitute a single block for the purposes of the Local Government (Building and Miscellaneous Provisions) Act 1993 , but if that folio is a qualified title as defined by section 3 of the Land Titles Act 1980 nothing in this subsection shall be construed as prejudicing or affecting any estate or interest protected by the caution recorded on that folio.

84E.   Applications for orders

[Section 84E Inserted by No. 3 of 1978, s. 3 ]

(1)  An application for an order under the foregoing provisions of this Part shall be made to the Recorder.

(2)  [Section 84E Subsection (2) amended by No. 99 of 1982, s. 3 and Sched. 2, Pt. II ]On the receipt of the application the Recorder may give directions with respect to the giving of notice of the application, and any such directions may specify the persons to whom the notice is to be given and the manner in which they may be or are to be so given, whether by way of advertisement or otherwise.

(3)  In giving directions under subsection (2) the Recorder shall be concerned to see that, as far as is practicable, notice is given to all those persons whose estates or interests would be affected by the making of the order, and may, for the purpose, have regard to any inquiries, notices, or other proceedings previously made, given, or taken.

(4)  Instead of giving directions under subsection (2) the Recorder may, if he considers it sufficient, cause notice of the application to be given by way of advertisement or otherwise in such manner as he directs.

(5)  [Section 84E Subsection (5) amended by No. 28 of 2009, s. 18, Applied:01 Sep 2009] [Section 84E Subsection (5) amended by No. 85 of 1997, Sched. 4, Applied:01 Jan 1998] [Section 84E Subsection (5) amended by No. 68 of 1993, s. 3 ]The Tasmanian Planning Commission, established under the Tasmanian Planning Commission Act 1997 , and the corporation of the municipality in which the land the subject of the application for the order is situated are entitled to be made parties to proceedings on an application for an order under section 84C , and the Recorder shall not proceed with a hearing of the application unless he is satisfied the Tasmanian Planning Commission and the corporation have had reasonable notice of the application.

84F.   Determination of applications by Recorder

[Section 84F Inserted by No. 3 of 1978, s. 3 ]

(1)  Unless he considers that the application is of such a nature that it should be determined by the Supreme Court, the Recorder may himself determine an application for an order under the foregoing provisions of this Part, and in relation to that application he may, accordingly, exercise the jurisdiction of the appropriate tribunal.

(2)  Where in relation to any proceedings under this Part the Recorder is the appropriate tribunal he may apply to the Supreme Court for directions on any matter arising in the course of the proceedings.

(3)  Any person aggrieved by any decision made by the Recorder as the appropriate tribunal may appeal to the Supreme Court.

(4)  On an appeal under subsection (3) the Supreme Court may quash or vary any order of the Recorder to which the appeal relates, or may exercise any jurisdiction exercisable by the appropriate tribunal in the proceedings to which the appeal relates, or give the Recorder such directions as it considers proper in the circumstances, and may exercise in relation to those proceedings any powers otherwise vested in the Court.

(5)  Any directions given by the Court under this section in respect of any proceedings are binding on the Recorder and the parties to the proceedings.

(6)  In any proceedings on an application to which this section applies the Recorder may award costs to any party to the proceedings.

(7)  For the purpose of enforcing an order made by the Recorder under this section for the payment of any sum by way of compensation or costs an office copy thereof may be filed in the Supreme Court and the order may then be enforced as a judgment of the Supreme Court.

84G.   Determination of applications by Supreme Court

[Section 84G Inserted by No. 3 of 1978, s. 3 ]

(1)  On the application of the Recorder or of an interested person the Supreme Court may remove into the Court any proceedings before the Recorder on an application for an order under the foregoing provisions of this Part.

(2)  Where the proceedings on an application are removed into the Supreme Court under this section the Court has, in relation to that application, the jurisdiction of the appropriate tribunal and may exercise in relation to the proceedings any powers otherwise vested in the Court.

84H.   Supplementary provisions as to applications for orders

[Section 84H Inserted by No. 3 of 1978, s. 3 ]

(1)  An order made under this Part by an appropriate tribunal is binding on all persons, whether ascertained or of full age or capacity or not, then entitled or thereafter capable of becoming entitled to any interest affected by the order, and whether those persons were parties to the proceedings or had been served with notice thereof or not.

(2)  Where an order made by an appropriate tribunal under this Part provides for the payment of a sum by way of compensation and the person capable of giving a good discharge for the payment of that sum cannot, after reasonable inquiry, be found or ascertained the sum may be paid into the Supreme Court, to abide the order of the Court.

(3)  [Section 84H Subsection (3) amended by No. 21 of 1996, s. 20 and Sched. 1 ]For the purpose of proceedings on an application for an order under this Part by an appropriate tribunal the Governor may make regulations –

(a) prescribing the procedure to be used;

(b) [Section 84H Subsection (3) amended by No. 98 of 2001, s. 4, Applied:01 Jan 2002] .  .  .  .  .  .  .  .  

(c) providing for the summoning of witnesses and compelling them to give evidence and produce documents;

(d) providing for the answering of enquiries in writing; and

(e) conferring on the Recorder of Titles any power of a judge presiding at a trial or sitting in chambers, including the power to make a representative order.

84J.   Statutory rights of user

[Section 84J Inserted by No. 3 of 1978, s. 3 ]

(1)  Subject to this section, where the Supreme Court is satisfied that to facilitate the reasonable user of any land (in this section referred to as "the dominant land") for some public or private purpose it is consistent with the public interest that a statutory right of user should be created over other land (in this section referred to as "the servient land") it may, by order, impose upon the servient land, or on the owner for the time being thereof, an obligation of user or an obligation to permit the user of that land in accordance with the order.

(2)  A statutory right of user imposed under this section shall take the form of an easement, licence, or other right that may be created by act of the owners of the dominant land and the servient land or any of them.

(3)  An order shall not be made under this section unless the Court is satisfied that the owner of the servient land can be adequately compensated in money for any loss or disadvantage that he may suffer from the operation of the order.

(4)  An order under this section, unless the Court for special reasons determines otherwise, shall include provision for the payment by the applicant to such person or persons as may be specified in the order of such amount by way of compensation or consideration as in the circumstances appears to the Court to be just.

(5)  An order under this section is binding, to the extent the order provides, on all persons, whether of full age or capacity or not, then entitled or thereafter becoming entitled to the servient land or the dominant land, whether or not those persons were parties to, or had notice of, the proceedings on the order.

(6)  A statutory right of user has effect as if it were derived from the most effectual instruments made by the parties capable of creating the right, and may, accordingly, be extinguished or modified by act of parties.

(7)  [Section 84J Subsection (7) substituted by No. 4 of 2001, s. 21, Applied:12 Apr 2001] A statutory right of user that affects any land within a plan of subdivision may not be created under this section unless –

(a) the applicant produces a certificate from the relevant council to the effect that the application does not contravene Division 3 of Part 3 of the Local Government (Building and Miscellaneous Provisions) Act 1993 ; or

(b) the Court is otherwise satisfied that there is no such contravention.

84K.   Registration of orders

[Section 84K Inserted by No. 3 of 1978, s. 3 ]

(1)  [Section 84K Subsection (1) amended by No. 19 of 1980, s. 171 and Sched. 1 ]An order by the Court or the Recorder of Titles under this Part that affects any land that is under the Land Titles Act 1980 shall be deemed to be a dealing within the meaning of that Act, and that Act applies in relation thereto accordingly.

(2)  [Section 84K Subsection (2) amended by No. 19 of 1980, s. 171 and Sched. 1 ]An order by the Court or the Recorder of Titles under this Part that affects any land that is not under the Land Titles Act 1980 shall be deemed to be a judgment for the purposes of the Registration of Deeds Act 1935 , and that Act applies in relation thereto accordingly.

PART XVB - Partition of Chattels

[Part XVB Inserted by No. 78 of 1985, s. 2 ]

84L.   Power of Court to order partition, &c., of chattels

[Section 84L Inserted by No. 78 of 1985, s. 2 ]

(1)  Where any chattel or chattels belong to 2 or more persons jointly or in undivided shares, any such person or persons may apply to the Court for an order under this section.

(2)  On an application under this section, the Court may order –

(a) that the chattels in respect of which the application is made, or any one or more of them, be sold and the proceeds of sale be distributed among the persons entitled to those chattels in accordance with their interests in the chattels;

(b) that the chattels or some of them in respect of which the application is made be divided among the persons entitled to them; or

(c) that one or more of those chattels be sold and that the others be divided among the persons entitled to them –

and may make such other orders and give such consequential directions as the Court thinks fit.

PART XVI - Miscellaneous

85.   Regulations respecting notice

(1)  Any notice required or authorized by this Act to be served shall be in writing.

(2)  Any notice required or authorized 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 affected by the notice is absent, under disability, unborn, or unascertained.

(3)  Any notice required or authorized by this Act to be served, shall be sufficiently served if it is left at the last-known place of abode or business in Tasmania of the lessee, lessor, mortgagee, mortgagor, or other person to be served, or, in case of a notice required or authorized 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.

(4)  Any notice required or authorized 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, or where such registered letter would not in the ordinary course be delivered at any particular time, then at the time at which the mail containing such letter would in the ordinary course of post arrive at the post-office to which such mail is forwarded.

(5)  This section does not apply to notices served in proceedings in the Court.

86.   Legal assignments of things in action

[Section 86 Inserted by 26 Geo. V No. 97, s. 3 ]

(1)  Subject to the provisions of subsection (2) , 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;

(c) the power to give a good discharge for the same without the concurrence of the assignor.

(2)  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 may pay the debt or other thing in action into Court under the provisions of the enactments relating to the relief of trustees.

(3)  [Section 86 Subsection (3) omitted by No. 68 of 1994, s. 3 and Sched. 1 ].  .  .  .  .  .  .  .  

87.   Fraudulent concealment and falsification actionable

[Section 87 Inserted by 26 Geo. V No. 97, s. 3 ]

(1)  [Section 87 Subsection (1) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] Any person disposing of property or any interest therein for money or money's worth to a purchaser, or the Australian legal practitioner 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 –

shall be liable to an action for damages by the purchaser or the persons deriving title under him for any loss sustained by reason of the concealment of the instrument or incumbrance, or by reason of any claim made by a person under such pedigree whose right was concealed by such falsification as aforesaid.

(2)  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.

88.   Application of certain provisions of Inheritance Act 1833

[Section 88 Inserted by 26 Geo. V No. 97, s. 3 ]The provisions of the Imperial Act intituled the Inheritance Act 1833 , extended to this State are hereby amended as set forth in Schedule 3 , and as therein amended shall have effect in this State.

89.   Dower and tenancy by curtesy

[Section 89 Inserted by 26 Geo. V No. 97, s. 3 ]No estate of dower or tenancy by the curtesy shall be capable of coming into existence or taking effect in respect of any land.

90.   Covenants to be implied by use of certain forms of words

[Section 90 Inserted by 26 Geo. V No. 97, s. 3 ][Section 90 Amended by 25 Geo. V No. 78 ]Such of the covenants set out in Schedule 5 as shall be expressed as to be implied in any instrument executed or made by way of security for the repayment of moneys shall, if expressed in the form of words appointed and described for the case of each such covenant respectively, be so implied as fully and effectually as if such covenants were set forth fully, and in words at length in such document, except so far as the same may be altered or added to in such document, and, where the word "mortgagor" is used, the same shall include all and each of the mortgagors if more than one, and will imply a joint and several covenant on their behalf, and that the word "mortgagee" shall, if there are more mortgagees than one, include the survivors and survivor of them and the personal representatives of any such survivor and his assigns.

90A.   Easements in gross and easements and restrictions appurtenant to easements

[Section 90A Inserted by No. 47 of 1958, s. 4 ]

(1)  Notwithstanding any law or rule of law to the contrary, on and after the commencement of this section it shall be deemed to be possible and lawful –

(a) to –

(i) create; or

(ii) acquire by compulsory process –

in favour of the Crown or of any public authority or local authority constituted by or under any Act, an easement without a dominant tenement; and

(b) to make appurtenant to, or annex to, an easement another easement or the benefit of a restriction as to the user of the land.

(2)  [Section 90A Subsection (2) amended by No. 19 of 1980, s. 171 and Sched. 1 ]This section applies to and in relation to land that is subject to the Land Titles Act 1980 , notwithstanding anything in that Act or in any Act amending that Act.

90AB.   Covenants in gross

[Section 90AB Inserted by No. 28 of 1994, s. 39 ]

(1)  Notwithstanding any law or rule of law to the contrary, on and after the commencement of this section a covenant without a dominant tenement may be created in favour of the Crown or of any public authority or local authority constituted by or under any Act.

(2)  A covenant in gross is enforceable between the parties to it, and any person deriving title under any such party, as if the covenant were entered into by a fee simple owner of land for the benefit of adjacent land, held in fee simple by the Crown or any public authority or local authority constituted by or under any Act, that was capable of being benefited by the covenant and as if that adjacent land continued to be so held by the Crown, public authority or local authority.

(3)  A covenant entered into by a leaseholder under this section (unless the instrument creating it contains a provision to the contrary) remains in force so long as the covenantor or any person deriving title under the covenantor, other than a bona fide purchaser for value of the legal estate without notice of the covenant, remains in possession of the land to which the covenant relates.

(4)  This section applies to and in relation to land that is subject to the Land Titles Act 1980 notwithstanding anything contained in that Act.

(5)  If a covenant under this section is lodged under the Registration of Deeds Act 1935 , it must be accompanied by an application under section 11 of the Land Titles Act 1980 .

(6)  In this section –

lease includes an agreement for a lease;

leaseholder includes a tenant under an agreement for a lease.

90B.   Subdivision of land

[Section 90B Inserted by No. 72 of 1962, s. 7 ]

(1)  [Section 90B Subsection (1) amended by No. 51 of 1985, s. 4 and Sched. 2, Pt. II ][Section 90B Subsection (1) amended by No. 30 of 1995, s. 3 and Sched. 1 ]In this section the expressions legal subdivision and sealed plan have the same meaning as in Division 1 of Part 3 of the Local Government (Building and Miscellaneous Provisions) Act 1993 .

(2)  In an assurance effecting the legal subdivision of land comprised in a sealed plan the land shall be described by reference to that plan.

(3)  [Section 90B Subsection (3) amended by No. 19 of 1980, s. 171 and Sched. 1 ]An assurance of land comprised in and described by reference to a sealed plan shall, without any express mention and notwithstanding any contrary expression, assure that land together with and subject to any easements and profits a prender shown as appurtenant to and existing or to exist over that land or as appurtenant to other land comprised in the sealed plan –

(a) so that where land comprised in the sealed plan is under the Land Titles Act 1980 a reference to the sealed plan on the relevant folio of the Register under that Act shall be a sufficient notification for the purposes of that Act of easements and profits a prender shown on that plan; and

(b) notwithstanding that the sealed plan comprises both land that is and land that is not under that Act and shows easements and profits a prender appurtenant to land that is under that Act over land that is not or the other way round.

(4)  [Section 90B Subsection (4) substituted by No. 69 of 1963, s. 2 ][Section 90B Subsection (4) amended by No. 101 of 1973, s. 5 ]The schedule of easements to a sealed plan shall be deemed to have been sufficiently signed if it has been signed by the person who on inspection of –

(a) the folium of the register book constituted by the grant or certificate of title to the land; or

(b) the register of deeds –

as the case requires, appears to the Recorder of Titles to have power to create the interests set forth in the schedule that the purchasers of land comprised in the plan are to acquire.

(5)  [Section 90B Subsection (5) substituted by No. 69 of 1963, s. 2 ]When a sealed plan takes effect the persons who have signed the schedule of easements thereto shall be deemed to have the power respectively to create those interests without the concurrence of any person who has not signed it.

(6)  [Section 90B Subsection (6) substituted by No. 69 of 1963, s. 2 ]Nothing contained in subsection (5) affects or prejudices the enforcement by a person who has not signed the schedule of any remedies that he may have against a person who wrongfully signed the schedule as a person entitled to create an interest set forth therein.

(7)  [Section 90B Subsection (7) omitted by No. 69 of 1963, s. 2 ].  .  .  .  .  .  .  .  

(8)  [Section 90B Subsection (8) amended by No. 55 of 1965, s. 5 ]Failure to comply with subsection (2) does not make the assurance used void but makes the vendor liable to a penalty of $200.

90C.   Subdivision of building

[Section 90C Inserted by No. 72 of 1962, s. 7 ]

(1)  Where the fee in part of a building is sold so that the purchaser will acquire and the vendor will each keep part of the fee –

(a) the vendor shall be deemed to have agreed –

(i) to covenant not to disfigure the outside, to repair, to permit repairs, to repair downpipes, to repair the roof, to provide services, and to secure similar covenants from assigns; and

(ii) unless the tenants in fee of the building are, or will become, a body corporate, to declare himself a trustee for all persons concerned; and

(b) the purchaser shall be deemed to have agreed –

(i) to covenant not to disfigure the outside, to repair, to permit repairs, to contribute to repairs, to insure, to permit inspection, to repair downpipes, to secure similar covenants from assigns, and, unless the tenants in fee of the building are, or will become, a body corporate, to pay his share of the rates; and

(ii) that in the conveyance it may be provided that the vendor may re-enter –

except so far as it may be otherwise inferred from the nature of the transaction or provided in the contract for sale.

(2)  This section does not apply to land comprised in a stratum plan registered under Part XIA .

90D.   

[Section 90D Repealed by No. 3 of 1978, s. 4 ].  .  .  .  .  .  .  .  

90DA.   Determination or variation of leases, incumbrances, &c.

[Section 90DA Inserted by No. 47 of 1966, s. 16 ]

(1)  The Recorder of Titles may, on proof to his satisfaction –

(a) that all moneys secured by a mortgage, rent-charge, or other incumbrance have been paid; or

(b) that an estate or interest in land has been determined, varied, or defeated (either wholly or partially) –

cause to be registered under the Registration of Deeds Act 1935 such memorial as may, in his opinion, be appropriate to the case.

(2)  A memorial under this section may be expressed –

(a) to discharge any mortgage, rent-charge, or other incumbrance to which it relates;

(b) to determine, vary, or defeat (either wholly or partially) the estate or interest to which it relates; and

(c) to convey an estate or interest specified therein to a person named therein –

or to do any one or more of those things and, when registered, is as valid and effectual to accomplish the objects expressed therein as if it were the most effectual instrument to do so executed by all proper parties.

(3)  In any of the cases mentioned in subsection (4) the Recorder may, if he considers that there is sufficient cause for so doing –

(a) upon proof to his satisfaction of the amount of the debt owing under any mortgage, direct that amount to be paid to the Treasurer; and

(b) upon production to him of the receipt of the Treasurer for that amount –

proceed as if he had been satisfied, under paragraph (a) of subsection (1) , that all moneys secured by that mortgage had been paid.

(4)  The cases in which the Recorder may act under the authority of subsection (3) are –

(a) when a person who is entitled to receive payment of any money secured by a mortgage –

(i) is out of the State;

(ii) cannot be found; or

(iii) is unknown –

or it is uncertain who is so entitled; and

(b) when the mortgagee or one of several mortgagees is dead, and there is no person within the State who is presently entitled to reconvey the mortgage.

(5)  Between the person who is liable to pay money by reason of a mortgage or other interest affected by the registration of a memorial pursuant to this section and the person who is entitled to be paid it, any amount in fact outstanding at the time of the registration under this section of a memorial relating to that mortgage or other interest shall be deemed to be a specialty debt created by the instrument under which, but for the operation of this section, it would be payable.

(6)  The Recorder may, if he thinks fit, hold an inquiry in order to satisfy himself as to any fact or matter of which he may require proof for the purposes of this section, and may make such order as to the costs of any person attending such an inquiry as he thinks fit.

(7)  An order as to costs made under subsection (6) may be registered in the Court and thereupon is enforceable as if it were a judgment of the Court.

90E.   Insurance money from burnt building may be laid out on rebuilding

[Section 90E Inserted by No. 72 of 1962, s. 7 ]Where a building is destroyed or damaged by fire a person who has granted a policy of insurance for insuring it against fire may, and shall, on the request of a person interested in or entitled to the building, cause the money for which the building is insured to be laid out and expended, so far as it will go, towards rebuilding, reinstating, or repairing the building, unless –

(a) the person claiming the insurance money within 30 days next after his claim is adjusted, gives sufficient security to the person who has granted that policy that the insurance money will be so laid out and expended; or

(b) the insurance money is in that time settled and disposed of to and amongst the contending parties to the satisfaction and approbation of the person who has granted the policy of insurance.

91.   Application of certain provisions of this Act to land under the Land Titles Act 1980

[Section 91 Inserted by 26 Geo. V No. 97, s. 3 ]

(1)  [Section 91 Subsection (1) amended by No. 19 of 1980, s. 171 and Sched. 1 ]The provisions of this Act, which are enumerated in Schedule 4 shall not apply to any land held under the provisions of the Land Titles Act 1980 .

(2)  Except as aforesaid the provisions of this Act so far as the same are applicable shall apply, and shall be deemed, as from the commencement of this Act, to have applied at all times, to such land as aforesaid.

91A.   Right of remainderman or reversioner to take action for possession in certain circumstances

[Section 91A Inserted by No. 2 of 1978, s. 2 ]

(1)  Except as against a person holding a prior particular estate, a person who holds an estate or interest in reversion or remainder or any other future estate or interest in any land may exercise the like rights to the possession of the land as if his estate or interest were an estate or interest in possession; but he is not entitled to take action in court for the recovery of the land unless the court is satisfied that the holder of the estate or interest in possession entitled to take the like action has, on being requested to do so, refused or failed to do so or cannot, after reasonable inquiry, be found.

(2)  A person who recovers possession pursuant to subsection (1) shall hold the land in trust for the person beneficially entitled to the prior particular estate but shall not be accountable for rents and profits or for waste other than equitable waste.

(3)  A person holding an estate or interest in reversion or remainder or any other future estate or interest in any land may, with the leave of the court, intervene in any action for the recovery of the land.

91B.   Regulations

[Section 91B Inserted by No. 23 of 1982, s. 3 ]

(1)  In addition to the regulations authorized to be made by any other provision of this Act, the Governor may make regulations for the purposes of this Act.

(2)  [Section 91B Subsection (2) omitted by No. 98 of 2001, s. 5, Applied:01 Jan 2002] .  .  .  .  .  .  .  .  

(3)  Regulations under subsection (1) or any other provision of this Act may be made subject to such conditions, or be made so as to apply differently according to such factors, as may be specified in the regulations or according to such limitations or restrictions, whether as to time or circumstance or otherwise, as may be so specified.

(4)  A regulation under subsection (1) or any other provision of this Act may authorize any matter or thing to be from time to time determined, applied, or regulated by any person or body specified in the regulation.

91C.   Prescribed fees

[Section 91C Inserted by No. 98 of 2001, s. 6, Applied:01 Jan 2002]

(1)  The fees prescribed in Schedule 9 are payable under this Act for the matters to which they respectively relate.

(2)  Subsections (2) and (3) of section 169E of the Land Titles Act 1980 have the same application to the payment of a prescribed fee under this Act as they have to the payment of a prescribed fee under that Act.

91D.   Validation

[Section 91D Inserted by No. 98 of 2001, s. 6, Applied:01 Jan 2002] No regulation that prescribed a fee for the purposes of this Act before the commencement of the Registration and Related Fees Act 2001 is to be taken as having ever been invalid by reason only of the amount of the fee so prescribed.

PART XVII - Court: Procedure: Orders

92.   Payment into Court

[Section 92  Renumbered by 26 Geo. V No. 97, s. 3 ]

(1)  [Section 92  Subsection (1), (formerly 9) renumbered by 26 Geo. V No. 97, s. 3 ]Payment of money into Court shall effectually exonerate therefrom the person making the payment.

(2)  [Section 92  Subsection (2), (formerly 10) renumbered by 26 Geo. V No. 97, s. 3 ]Every application to the Court shall be by summons at chambers.

(3)  [Section 92  Subsection (3), (formerly 11) renumbered by 26 Geo. V No. 97, s. 3 ]On an application by a purchaser, notice shall be served in the first instance on the vendor.

(4)  [Section 92  Subsection (4), (formerly 12) renumbered by 26 Geo. V No. 97, s. 3 ]On an application by a vendor, notice shall be served in the first instance on the purchaser.

(5)  [Section 92  Subsection (5), (formerly 13) renumbered by 26 Geo. V No. 97, s. 3 ]On any application, notice shall be served on such persons, if any, as the Court thinks fit.

(6)  [Section 92  Subsection (6), (formerly 14) renumbered by 26 Geo. V No. 97, s. 3 ]The Court shall have full power and discretion to make such order as it thinks fit respecting the costs, charges, or expenses of all or any of the parties to any application.

(7)  [Section 92  Subsection (7) added by 26 Geo. V No. 97, s. 3 ]The provisions of this section shall be subject to Rules of Court made for the purposes of this Act, under the Supreme Court Civil Procedure Act 1932 .

93.   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 applies to all orders made before or after the commencement of this Act.

SCHEDULE 1

[Schedule 1 Amended by No. 55 of 1965, s. 5 ]

PART I - Deed of Statutory Mortgage*

Section 28

PART II

DeedA

Deed of statutory transfer, mortgagor not joining

Section 29 (1) , (2)

DeedB

Deed of statutory transfer, a covenantor joining

Section 29 (1) - (3)

DeedC

Statutory transfer and statutory mortgage combined

Section 29 (1) , (2) , (4)

PART III - Deed of statutory reconveyance of mortgage*

Section 31

PART IV - Memorandum of discharge of mortgage property

[Schedule 1, Part IV Inserted by No. 27 of 1988, s. 5 ]

Section 31A

SCHEDULE 2 - Short Forms of Deeds

[Schedule 2 Amended by No. 55 of 1965, s. 5 ][Schedule 2 Form V inserted by No. 72 of 1962, s. 8 ]

Section 70

Form I - Mortgage

Form II - Further charge

Form III - Conveyance on sale

Form IV - Marriage settlement

Form V - Conveyance of flat in building under Part XIA

SCHEDULE 3 - Provisions Adopted (as from the First Day of October 1836) from the Inheritance Act 1833 (3 & 4 Wm. Iv, c. 106), as Amended

[Schedule 3 Inserted by 26 Geo. V No. 97, s. 3 ]

Section 88

1.   Interpretation

In this schedule, unless the contrary intention appears, the word "land" shall extend to messuages and all other hereditaments, whether corporeal or incorporeal, and whether freehold or of any other tenure, and to money to be laid out in the purchase of land, and to chattels and other personal property transmissible to heirs, and also to any share of the same hereditaments and properties or any of them, and to any estate of inheritance, or estate for any life or lives, or other estate transmissible to heirs, and to any possibility, right, or title of entry or action, and any other interest capable of being inherited, and whether the same estates, possibilities, rights, titles, and interests, or any of them, shall be in possession, reversion, remainder, or contingency; and the words "the purchaser" shall mean the person who last acquired the land otherwise than by descent, partition, or inclosure, by the effect of which the land shall have become part of or descendible in the same manner as other land acquired by descent; and the word "descent" shall mean the title to inherit land by reason of consanguinity, as well where the heir shall be an ancestor or collateral relation, as where he shall be a child or other issue; and the expression "descendants" of any ancestor shall extend to all persons who must trace their descent through such ancestor; and the expression "the person last entitled to land" shall extend to the last person who had a right thereto, whether he did or did not obtain the possession or the receipt of the rents and profits thereof; and the word "assurance" shall mean any deed or instrument (other than a will) by which any land shall be conveyed or transferred at law or in equity.

2.   Descent to be traced from purchaser: The last owner shall be considered purchaser unless the contrary be proved

In every case descent shall be traced from the purchaser; and to the intent that the pedigree may never be carried further back than the circumstances of the case and the nature of the title shall require, the person last entitled to the land shall, for the purposes of this Act, be considered to have been the purchaser thereof, unless it shall be proved that he inherited the same, in which case the person from whom he inherited the same shall be considered to have been the purchaser, unless it shall be proved that he inherited the same; and in like manner the last person from whom the land shall be proved to have been inherited shall in every case be considered to have been the purchaser, unless it shall be proved that he inherited the same.

3.   Heir under will to take as devisee, limitation to the grantor or his heirs

When any land shall have been devised by any testator who shall die after 30 September 1836, to the heir or to the person who shall be the heir of such testator, such heir shall be considered to have acquired the land as a devisee, and not by descent; and when any land shall have been limited, by any assurance executed after 30 September 1836, to the person or to the heirs of the person who shall thereby have conveyed the same land, such person shall be considered to have acquired the same as a purchaser by virtue of such assurance, and shall not be considered to be entitled thereto as his former estate or part thereof.

4.   Limitations to the heirs of ancestor

When any person shall have acquired any land by purchase under a limitation to the heirs or to the heirs of the body of any of his ancestors, contained in an assurance executed after 30 September 1836, or under a limitation to the heirs or to the heirs of the body of any of his ancestors, or under any limitation having the same effect, contained in a will of any testator, who shall depart this life after the said date, then and in any of such cases such land shall descend, and the descent thereof shall be traced as if the ancestor named in such limitation had been the purchaser of such land.

5.   Brothers trace descent through parent

No brother or sister shall be considered to inherit immediately from his or her brother or sister, but every descent from a brother or sister shall be traced through the parent.

6.   Lineal ancestor may be heir in preference to collaterals

Every lineal ancestor shall be capable of being heir to any of his issue; and in every case where there shall be no issue of the purchaser, his nearest lineal ancestor shall be his heir in preference to any person who would have been entitled to inherit, either by tracing his descent through such lineal ancestor or in consequence of there being no descendant of such lineal ancestor, so that the father shall be preferred to a brother or sister, and a more remote lineal ancestor to any of his issue, other than a nearer lineal ancestor or his issue.

7.   Male line to be preferred

None of the maternal ancestors of the person from whom the descent is to be traced, nor any of their descendants, shall be capable of inheriting until all his paternal ancestors and their descendants shall have failed; and also that no female paternal ancestor of such person, nor any of her descendants, shall be capable of inheriting until all his male paternal ancestors and their descendants shall have failed; and that no female maternal ancestor of such person, nor any of her descendants, shall be capable of inheriting until all his male maternal ancestors and their descendants shall have failed.

8.   The mother of more remote male ancestor to be preferred

Where there shall be a failure of male paternal ancestors of the person from whom the descent is to be traced, and their descendants, the mother of his more remote male paternal ancestor, or her descendants, shall be the heir or heirs of such person, in preference to the mother of a less remote male paternal ancestor, or her descendants; and where there shall be a failure of male maternal ancestors of such person, and their descendants, the mother of his more remote male maternal ancestor, and her descendants, shall be the heir or heirs of such person, in preference to the mother of a less remote male maternal ancestor, and her descendants.

9.   Order of inheritance by half blood

Any person related to the person from whom the descent is to be traced by the half blood shall be capable of being his heir; and the place in which any such relation by the half blood shall stand in the order of inheritance, so as to be entitled to inherit, shall be next after any relation in the same degree of the whole blood, and his issue, where the common ancestor shall be a male, and the next after the common ancestor where such common ancestor shall be a female, so that the brother of the half blood on the part of the father shall inherit next after the sisters of the whole blood on the part of the father and their issue, and the brother of the half blood on the part of the mother shall inherit next after the mother.

10.   Descendants of person attainted may inherit

When the person from whom the descent of any land is to be traced shall have had any relation, who having been attainted, shall have died before such descent shall have taken place, then such attainder shall not prevent any person from inheriting such land who would have been capable of inheriting the same, by tracing his descent through such relation, if he had not been attainted, unless such land shall have escheated in consequence of such attainder before the first day of January 1837.

11.   Total failure of heirs of purchaser

Where there is a total failure of heirs of the purchaser, or where any land is descendible as if an ancestor had been the purchaser thereof, and there is a total failure of the heirs of such ancestor, then and in every such case the land shall descend and the descent shall be traced from the person last entitled to the land as if he had been the purchaser thereof.

12.   Citation

The provisions contained in this schedule may be cited as the Inheritance Act 1836 .

SCHEDULE 4 - Provisions of this Act which do not apply to land held under the Land Titles Act 1980

[Schedule 4 Inserted by 26 Geo. V No. 97, s. 1 ][Schedule 4 Amended by 4 and 5 Geo. VI No. 75, s. 2 ][Schedule 4 Amended by No. 47 of 1958, s. 5 ][Schedule 4 Amended by No. 72 of 1962, s. 9 ][Schedule 4 Amended by No. 47 of 1966, s. 17 ][Schedule 4 Amended by No. 101 of 1973, s. 6 ][Schedule 4 Amended by No. 19 of 1980, s. 171 and Sched. 1 ][Schedule 4 Amended by No. 27 of 1988, s. 6 ]

Section 91

Sections 3 , 6 , 7 , 9 , 9A , 18 , 21 (except paragraphs (b) , (c) , and (d) of subsection (1) ), 22 to 25 , 27 to 31A , 35 , 37 , 38 , 65 , 70 , 74 , 75 , 85 , and 90DA .

SCHEDULE 5

[Schedule 5 Inserted by 26 Geo. V No. 97, s. 3 ]

Section 90

1.   The words "current account" shall imply. All and every sum and sums of money which shall for the time being be due, owing, or payable by the mortgagor, either alone or together with any other person to the mortgagee on account current or for moneys advanced, lent, or paid, or in respect of bills or promissory notes or drafts paid or discounted, or in respect of any guarantee or on any other account whatsoever, together with interest on all and every such sum and sums of money at the current rate for the time being and in the manner usually charged by the mortgagee in Tasmania on overdrawn accounts of a similar nature, commission, and all usual or customary charges, and all costs and expenses which may be incurred in respect of the premises, and that all such interest shall be considered as accruing from day to day, and shall be payable when demanded, but that until demanded the mortgagor will pay the same on the half-yearly balancing days of the mortgagee in Tasmania, and will make the first of such half-yearly payments on the next half-yearly balancing day of the mortgagee in Tasmania, and includes any sum or sums which, under any bill of exchange, promissory note, or other instrument may not then have arrived at maturity as and when the same shall become due and payable.

2.   The words "interest may be capitalized" shall imply. In case any interest upon the moneys for the time being owing on this security (inclusive of any interest which may be added to principal by virtue of this present proviso), or any part thereof respectively, or any commission or charges, shall remain unpaid on any half-yearly day of payment, the same may be turned into principal, and shall thenceforth be deemed part of the principal moneys intended to be hereby secured, and shall carry interest in like manner, and the covenant for payment of principal moneys and interest shall extend to all additions to the said principal moneys arising from such capitalized interest, or commission, or charges, and the interest to accrue due thereon, and the premises hereby mortgaged shall stand charged therewith accordingly: And further that, until realized or fully discharged, this security shall be a continuing security for the full amount of the said hereinbefore mentioned indebtedness and liability and all other moneys expressed to be hereby secured, and it shall be optional with the mortgagee whether all or any moneys which may from time to time be paid in or standing to the credit of the account of the mortgagor with the mortgagee shall be applied in or towards satisfaction of the moneys hereby secured or not.

3.   The words "the mortgagee may grant time and shall not be liable to merger" shall imply. This mortgage shall be a security as well for any bill of exchange or promissory note held by the mortgagee in respect of all or any of the moneys intended to be hereby secured as also for any and every bill of exchange and promissory note which may be hereafter taken in respect of the said moneys or any part thereof or by way of full or partial renewal of or substitution for any or either of such bills of exchange or promissory notes as are hereinbefore mentioned: And further that the mortgagee may grant time or other indulgence to or compound with or release any drawers, acceptors, or endorsers of bills or notes or any person, liable upon any guarantee or other security without discharging or affecting this mortgage: And further that all dividends, compositions, and payments received from the mortgagor or from any person shall be taken and implied as payments in gross, and that this security shall extend to any ultimate balance which shall remain due to the mortgagee within the limit hereinafter mentioned and interest as aforesaid: And further that nothing herein contained shall be held to discharge, abate, merge, or prejudice any other security now held or which may hereafter be held or taken by the mortgagee for any of the moneys intended to be hereby secured, and that no action upon any promissory note, bill of exchange, or other instrument, the payment whereof is intended to be hereby secured shall be defended upon the ground of any supposed merger, nor shall this mortgage or any such other security affect any claim or demand which the mortgagee now has or may hereafter have against any other person as surety on any bill of exchange or promissory note or guarantee or otherwise.

4.   [Schedule 5 Clause 4 amended by 25 Geo. V No. 78 ]The words "the mortgagee when in possession shall have extended powers of leasing and granting options" shall imply. That, in addition to the powers conferred on mortgagees while in possession by subsection (2) of section 19 of the Conveyancing and Law of Property Act 1884 , it shall be lawful for the mortgagee to let or demise the lands described in the schedule hereto or any part thereof, either with or without option of purchase or renewal, to any person for any term, at such rent, with such powers, and, if with option of purchase, at such price, and subject to such covenants and conditions as the mortgagee shall require, and to accept surrenders of any leases or tenancies now existing, or which may hereafter be created, of any such lands and premises, and also to determine such leases and tenancies or any of them: And the mortgagor hereby irrevocably constitutes and appoints the mortgagee or, if a bank or company, the manager, and accountant for the time being of the head office of the mortgagee in Tasmania, during the continuance of this security, jointly and severally to be the attorneys and attorney of the mortgagor for the purpose of carrying out the powers of leasing and of sale contained in this proviso: And the mortgagor agrees to ratify and confirm any such lease so as aforesaid granted by the mortgagee, and to do and execute all acts and deeds which may be requisite for the purpose of effectuating and carrying out a conveyance to any person purchasing under an option of purchase contained in any such lease as aforesaid.

5.   [Schedule 5 Clause 5 amended by 4 and 5 Geo. VI No. 75, s. 2 ][Schedule 5 Clause 5 amended by No. 51 of 1985, s. 4 and Sched. 2, Pt. II ]The words "extended power of sale may be exercised" shall imply. The power of sale conferred by the Conveyancing and Law of Property Act 1884 , or by the Land Titles Act 1980 , as the case may be, on mortgagees shall apply to this security, and that on any sale under such power any time may be allowed for the payment of the whole or any part of the purchase-money, either with or without interest in the meantime, and if with interest, then at any rate, and either with or without taking security, and on any such sale the mortgagee may set out, grant, or reserve such roads, ways, or easements as he shall think fit, and that where default has been made in payment of any moneys hereby secured, the mortgagee may enforce this security at any time notwithstanding the currency of any bills or notes or other instruments covered by it, and that, in the event of the said power of sale being exercised, the amount of any bill of exchange, promissory note, or other instrument upon which the mortgagor, either alone or together with any other person, shall be liable to the mortgagee, but which may not then have arrived at maturity or any part thereof respectively, may be deducted from the purchase-money to arise from any such sale in addition to all other moneys owing hereunder: And further that the mortgagee shall be at liberty to include in any sale hereunder any other property, real or personal, over which he shall then have a power of sale held as security for any moneys owing from the mortgagor and deal with it as though portion of the premises comprised herein, with full power to apportion the costs, expenses, and proceeds of such sale between the respective securities: And further that, upon a sale hereunder by the mortgagee in applying the purchase-moneys towards satisfaction of the moneys hereby secured, the mortgagor shall be credited only with so much of the said moneys available for that purpose as shall be received in cash by the mortgagee, such credit to date from the time of such receipt: And all purchase-money left outstanding on credit or otherwise shall, until actually received by the mortgagee in cash, be deemed a continuing unsatisfied part of the principal moneys hereby secured and carry interest accordingly: But any interest paid by the purchaser shall be set off pro tanto against the interest hereby secured.

6.   The words "will insure" shall imply. That the mortgagor will, during the continuance of this security, keep the buildings now erected, or which may hereafter be erected, on the mortgaged premises insured in the name of the mortgagee against loss or damage by fire to the amount specified in this security, or, if no amount be specified, then to the full insurable value thereof in some public insurance office in Tasmania approved of by the mortgagee and will pay all premiums and moneys necessary for such purpose on the first day on which the same respectively ought to be paid, and will deliver to the mortgagee the policy of such insurance and the receipt for every such payment. And that if the mortgagor shall at any time refuse or neglect to deliver any such policy or receipt as aforesaid the mortgagee shall be entitled to assume that the said premises are not insured in accordance with the covenant hereinbefore contained and to exercise the powers conferred by the Conveyancing and Law of Property Act 1884 in that behalf. (The foregoing covenant, with the necessary alteration in terms, shall be implied on the part of the lessee where the words "will insure" are used for that purpose in a lease.).

6A.   [Schedule 5 Clause 6A inserted by No. 72 of 1962, s. 10 ]The words "will insure in accordance with section 75T of the Conveyancing and Law of Property Act 1884 " shall imply. That so far as the building comprised in the said stratum plan is not at all times insured to its full replacement value against loss or damage by fire he will during the continuance of this security keep the premises insured in the name of the mortgagee against loss or damage by fire to the full amount permitted by subsection (3) of section 75T of the Conveyancing and Law of Property Act 1884 in some public insurance office in Tasmania to be approved of by the mortgagee and will pay all premiums and moneys necessary for such purpose on the first day on which the same respectively ought to be paid, and will deliver to the mortgagee the policy of such insurance and the receipt for every such payment. And that if the mortgagor shall at any time refuse or neglect to deliver any such policy or receipt as aforesaid the mortgagee shall be entitled to assume that the said premises are not insured in accordance with the covenant hereinbefore contained and to exercise the powers conferred by the Conveyancing and Law of Property Act 1884 in that behalf.

7.   The words "will pay rates, taxes, and other outgoings" shall imply. That the mortgagor will, throughout the continuance of this security, and whether the mortgagee shall or shall not have entered upon or taken possession of the said lands and premises, pay any land tax and all other rates, assessments, and outgoings charged thereon or payable by the owner, occupier, and mortgagee in respect thereof immediately the same become payable, and will observe, comply with, and perform all laws, by-laws, regulations, and requirements made by any Federal, State, or local authority relating to the said premises or concerning the destruction of noxious weeds and animal and insect pests thereon; and that the mortgagee may, but without obligation on his part so to do, pay all such taxes, rates, assessments, and outgoings, and observe, comply with, and perform all such laws, by-laws, regulations, and requirements as aforesaid in the event of the mortgagor failing to do so, and charge or debit all sums of money paid under the above authority, or for any of the aforesaid purposes, against the mortgagor, and such sum may, at the discretion of the mortgagee, be added to the principal moneys and carry interest accordingly.

8.   The words "will keep in repair" shall imply. That the mortgagor will, at all times during the continuance of this security, at his own expense, keep the dwelling-house and buildings which now are, or which may hereafter be, erected on the said lands, and also all gates and fences, in good and tenantable repair, order, and condition in all respects: And further that the mortgagor will, at all times during the continuance of this security, at his own expense, keep those parts or portions of the said lands which are now used as gardens, orchards, or cultivated lands well cultivated, manured, and sprayed, and manage the same according to the most approved methods of gardening, orcharding, or farming, and shall and will carefully prune, foster, and preserve all fruit trees now growing, or which may during the continuance of this security grow upon the said lands; and will not cut down, bark, or destroy any fruit trees or timber trees, excepting such trees as shall be decayed or such fruit trees as shall cease to be productive of fruit. And that, in case the mortgagor at any time fail to keep the said lands and premises in good and tenantable repair, order, and condition as aforesaid, it shall be lawful for, but not obligatory upon, the mortgagee to effect and maintain such repairs and order, as the case may be; and the mortgagee may, at his discretion, add the costs and expenses of so doing to the principal moneys hereby secured, and the same shall bear interest accordingly.

9.   [Schedule 5 Clause 9 amended by 25 Geo. V No. 78 ][Schedule 5 Clause 9 amended by No. 55 of 1965, s. 5 ]The words "attorns tenant at the rent of ___ dollars" shall imply. That the mortgagor attorns tenant from year to year to the mortgagee in respect of the lands hereby mortgaged, or of so much thereof as are now in the possession of the mortgagor at the yearly rent of ___ dollars, clear of all deductions, to be paid by equal payments on the days appointed for payment of interest: And it is hereby agreed and declared that it shall be lawful for the mortgagee, at any time after default in payment of the moneys hereby secured or any part thereof, without giving any previous notice of his intention so to do, to enter upon and take possession of the said lands and immediately to determine the tenancy created by the aforesaid attornment: Provided always that, until payment of the moneys hereby secured or of any part thereof shall be demanded by the mortgagee as aforesaid, payment of the interest on the principal moneys hereby secured, on the days and in the manner hereinbefore appointed for payment thereof, shall be accepted in lieu of and in full satisfaction for the rent hereby reserved: Provided further that, after demand shall have been made as aforesaid, payment of the rent reserved by the said attornment shall be deemed and taken to be in part satisfaction of the moneys hereby secured: Provided also, and it is hereby agreed, that neither the receipt of the said rent nor the tenancy created by the said attornment shall render the mortgagee liable to account as mortgagee in possession.

10.   The words "provided that, upon punctual payment, interest shall be reduced to ___ per centum per annum if paid within ___ days of due date" shall imply. Provided always, and it is hereby agreed and declared, that if and whenever interest upon the principal moneys secured after the rate of ___ per centum per annum shall be paid at the time herein appointed for payment of interest, or within ___ days next thereafter, as to which time shall be of the essence of the contract, and if the mortgagor shall duly perform and observe all the covenants and conditions contained in this security other than payment of the interest at the higher rate, then and in such case interest at the reduced rate of ___ per centum per annum shall be accepted in lieu of and in satisfaction for interest payable for that period under the foregoing covenant in that behalf.

SCHEDULE 6

[Schedule 6 Inserted by No. 72 of 1962, s. 11 ]

Section 75A

SCHEDULE 7

[Schedule 7 Inserted by No. 72 of 1962, s. 11 ][Schedule 7 Repealed by No. 17 of 1998, Sched. 3, Applied:05 Jun 1998]

PART I

[Part I of Schedule 7 Repealed by No. 17 of 1998, Sched. 3, Applied:05 Jun 1998] .  .  .  .  .  .  .  .  

PART II

[Schedule 7, Part II Clause 2 amended by No. 37 of 1965, s. 8 ][Part II of Schedule 7 Repealed by No. 17 of 1998, Sched. 3, Applied:05 Jun 1998] .  .  .  .  .  .  .  .  

SCHEDULE 8

[Schedule 8 Inserted by No. 67 of 1964, s. 5 ]

Section 34A

[Schedule 8 Amended by No. 16 of 1998, s. 7, Applied:05 Jun 1998]

SCHEDULE 9 - Prescribed fees

[Schedule 9 Inserted by No. 98 of 2001, s. 7, Applied:01 Jan 2002]

Section 91C