Queensland: Property Law Act 1974 (Qld)

Property Law Act 1974 An Act to consolidate, amend, and reform the law relating to conveyancing, property, and contract, to terminate the application of certain statutes, to facilitate the resolution of financial matters at the end of a de facto relationship, and for other purposes Part 1 Preliminary 1 Short title This Act may be cited as the Property Law Act 1974. 2 Act binds Crown This Act, except where otherwise provided, binds the Crown not only in right of the State of Queensland but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities. 3 Dictionary The dictionary in schedule 6 defines particular words used in this Act. 4 Act not to be taken to confer right to register restrictive covenant Nothing in this Act shall be construed as conferring on any person a right, in respect of registered land, to registration of a restrictive covenant. 5 Application of Act (1) This Act shall— (a) apply to unregistered land; and (b) apply to land under the provisions of the Land Title Act 1994, including any lease of such land, but subject to that Act; and (c) apply to estates, interests, and any other rights in or in respect of land, granted, created or taking effect under any Act or any repealed Act provisions of which continue to apply with respect to this Act, but subject to the provisions of such Act; and (d) without limiting the generality of paragraph (c)— (i) subject to the provisions of the Coal Mining Act, apply to land under that Act; or (ii) subject to the provisions of the Land Act, apply to land under that Act; or (iii) subject to the provisions of the Mineral Resources Act, apply to leases, and any other rights in or in respect of land, granted, created or taking effect under that Act. (2) Where, by this Act, including this section, a provision is expressed to apply to land or interests in land under the provisions of a particular Act, such expression shall not be construed to mean that the provision— (a) applies exclusively to such land; or (b) does not apply to property other than land. 6 Savings in regard to ss 10 – 12 and 59 Nothing in section 10 to 12 or 59— (a) invalidates any disposition by will; or (b) affects any interest validly created before the commencement of this Act; or (c) affects the right to acquire an interest in land because of taking possession; or (d) affects the law relating to part performance; or (e) affects a sale by the court. Part 2 General rules affecting property 7 Effect of repeal of Statute of Uses (1) Interest in land which under the Statute of Uses could before the commencement of this Act have been created as legal interests shall after the commencement of this Act be capable of being created as equitable interests. (2) Despite subsection (1), an equitable interest in land shall, after the commencement of this Act, only be capable of being validly created in any case in which an equivalent equitable interest in property real or personal could have been validly created before such commencement. (3) In a voluntary conveyance executed after the commencement of this Act a resulting trust for the grantor shall not be implied merely by reason that the property is not expressed to be conveyed for the use or benefit of the grantee. 8 Lands lie in grant only (1) All lands and all interests in land shall lie in grant and shall be incapable of being conveyed by livery or livery and seisin, or by feoffment, or by bargain and sale, or by lease and release, and a conveyance of an interest in land may operate to pass the possession or right to possession of land, without actual entry, but subject to all prior rights to the land. (2) The use of the word 'grant' is not necessary to convey land or to create an interest in the land. 9 Reservation of easements etc. in conveyances of land (1) In a conveyance of land a reservation of any easement, right, liberty, or privilege not exceeding in duration the estate conveyed in the land, shall operate without any execution of the conveyance by the grantee of the land out of which the reservation is made, or any regrant by the grantee, so as to create the easement, right, liberty or privilege, and so as to vest the same in possession in the person (whether or not the person be the grantor) for whose benefit the reservation was made. (2) This section applies only to reservations made after the commencement of this Act. 10 Assurances of land to be in writing (1) No assurance of land shall be valid to pass an interest at law unless made by deed or in writing signed by the person making such assurance. (2) This section does not apply to— (a) a disclaimer made under any law relating to bankruptcy in force before or after the commencement of this Act, or not required to be evidenced in writing; or (b) a surrender by operation of law, including a surrender which may, by law, be effective without writing; or (c) a lease or tenancy or other assurance not required by law to be made in writing; or (d) a vesting order; or (e) an assurance taking effect under any Act or Commonwealth Act. 11 Instruments required to be in writing (1) Subject to this Act with respect to the creation of interests in land by parol— (a) no interest in land can be created or disposed of except by writing signed by the person creating or conveying the same, or by the person's agent lawfully authorised in writing, or by will, or by operation of law; and (b) a declaration of trust respecting any land must be manifested and proved by some writing signed by some person who is able to declare such trust or by the person's will; and (c) a disposition of an equitable interest or trust subsisting at the time of the disposition, must be manifested and proved by some writing signed by the person disposing of the same, or by the person's agent lawfully authorised in writing, or by will. (2) This section does not affect the creation or operation of resulting, implied, or constructive trusts. 12 Creation of interests in land by parol (1) All interests in land created by parol and not put in writing and signed by the person so creating the same, or by the person's agent lawfully authorised in writing, shall have, despite any consideration having been given for the same, the force and effect of interests at will only. (2) Nothing in this Act shall affect the creation by parol of a lease taking effect in possession for a term not exceeding 3 years, with or without a right for the lessee to extend the term for any period which with the term would not exceed 3 years. 13 Persons taking who are not parties (1) In respect of an assurance or other instrument executed after the commencement of this Act, a person may take— (a) an immediate or other interest in land; or (b) the benefit of any condition, right of entry, covenant or agreement over or respecting land; even though the person may not have executed the assurance or other instrument, or may not be named as a party to the assurance or other instrument, or may not have been identified or in existence at the date of execution of the assurance or other instrument. (2) Such person may sue, and shall be entitled to all rights and remedies in respect of the assurance or other instrument, as if the person had been named as a party to and had executed the assurance or other instrument. 14 Conveyances by a person to the person etc. (1) In conveyances and leases made after 28 December 1867, personal property, including chattels real, may be conveyed or leased by a person to the person jointly with another person by the like means by which it might be conveyed or leased by the person to another person. (2) In conveyances or leases made after the commencement of this Act freehold land, or a thing in action, may be conveyed or leased by a person to the person jointly with another person, by the like means by which it might be conveyed or leased by the person to another person, and may, in like manner, be conveyed or leased by a husband to his wife, and by a wife to her husband, alone or jointly with another person. (3) After the commencement of this Act a person may convey or lease land to or vest land in the person but may not convey to or vest in the person an estate in fee simple absolute in such land. (4) Two or more persons (whether or not being trustees or personal representatives) may convey or lease, and shall be deemed always to have been capable of conveying or leasing, any property vested in them to any 1 or more of themselves in like manner as they could have conveyed or leased such property to a third party. (4A) However, if the persons in whose favour the conveyance or lease is made are, because of any fiduciary relationship or otherwise, precluded from validly carrying out the transaction, the conveyance or lease shall be liable to be set aside. (5) In subsection (4)— or more of themselves includes all the persons by whom the conveyance or lease is or has been made. 15 Rights of husband and wife A husband and wife shall, for all purposes of acquisition of any interest in property, under a disposition made or coming into operation after the commencement of the Act, be treated as 2 persons. 15A Rights of aliens (1) An alien may take, give, buy or sell property as if the alien were an Australian citizen. (2) The application of succession laws to a person is not different merely because the person is an alien. (3) This section does not entitle an alien to any right as an Australian citizen other than a right given by this section. (4) In this section— property means any interest in real, personal, movable or immovable property. 16 Presumption that parties are of full age The persons expressed to be parties to any conveyance shall, until the contrary is proved, be presumed at the date of such conveyance to be of full age or of such other lesser age as to have capacity to give effect to the conveyance. 17 Merger An estate does not merge by operation of law only if the beneficial interest in the estate would not be merged or extinguished in equity. 18 Restrictions on operation of conditions of forfeiture (1) Where there is a person entitled to income (including an annuity or other periodical income) or any other property, subject to a condition of forfeiture on alienation, whether voluntary or involuntary, and whether with or without words of futurity, then— (a) unless the instrument containing the condition expressly provides to the contrary, no alienation, whether by way of charge or otherwise, of the income or other property, made or occurring before the person becomes entitled to receive payment of the income, or to call for a conveyance or delivery of the other property, shall operate to create forfeiture under the condition unless the alienation is in operation at the time the person becomes so entitled; and (b) despite any stipulation to the contrary in the instrument containing the condition no voluntary alienation made by the person, with the sanction of the court, shall operate to create forfeiture under the condition. (2) This section applies where the condition of forfeiture is contained in an instrument executed, made, or coming into operation before or after the commencement of this Act, but only in cases where such person becomes entitled to receive payment of the income, or to call for an assurance or delivery of the other property, or where the alienation with the sanction of the court is made, after such commencement. Part 3 Freehold estates 19 Freehold estates capable of creation After the commencement of this Act the following estates of freehold shall be capable of being created and, subject to this Act, of subsisting in land— (a) estate in fee simple; (b) estate for life or lives. 20 Incidents of tenure on grant in fee simple (1) All tenures created by the Crown upon any grant of an estate in fee simple made after the commencement of this Act shall be taken to be in free and common socage without any incident of tenure for the benefit of the Crown. (2) Where any quit rent issues to the Crown out of any land, or the residue of any quit rent issues to the Crown out of any land in respect of which quit rent has been apportioned or redeemed, such land or residue is released from quit rent. (3) In respect of property of any person dying intestate on or after 16 April 1968— (a) escheat is abolished; and (b) all such property, whether real or personal, shall, subject to this section, be distributed in the manner and to the person or persons provided by the Succession Act 1981, but subject to the provisions (including part 4) of that Act. (4) Subject to any other Act, property of any corporation dissolved after the commencement of this Act shall not escheat, but the Crown shall be entitled to and take as bona vacantia all such property, whether real or personal, as would apart from this Act be liable to escheat or pass to the Crown as bona vacantia. (5) Despite this section, where the Crown, or it is made to appear to the Minister that the Crown, has a right to any property, by escheat or devolution or as bona vacantia, on the death intestate of any person, whether the death occurred before or after the passing of this Act, the Minister, upon application being made for the waiver of that right, may by gazette notice waive such right on such terms (if any), whether for the payment of money or otherwise, in favour of any 1 or more of the following persons, whether belonging to the same or to different classes— (a) any dependants, whether kindred or not, of the intestate; (b) any other persons for whom the intestate might reasonably have been expected to make provision; (c) any persons to whom the State would, if the State's title had been duly proved by inquisition, have the power to grant such property; (d) any other persons having in the opinion of the Minister a just claim to the grant of the property; (e) the trustees of any person as mentioned in paragraphs (a) to (d); as to the Minister seems reasonable. (6) Upon a waiver made under subsection (5), the right of the State so waived, subject to subsection (10), shall vest in the person or persons in favour of whom the waiver is made. (7) For the purpose of giving effect to any waiver under subsection (5) the Minister, by gazette notice or a further gazette notice, may do all or any of the following things— (a) appoint such person as the Minister considers suitable to be administrator of the property of the person who has died intestate (the deceased); (b) appoint a person to execute any conveyance or transfer or other document for the purpose of conveying or transferring under the terms of the waiver to the person or persons in whose favour the waiver is made the right of the State so waived; (c) give directions that the Minister considers necessary or desirable to give effect to the waiver (including the terms of the waiver) and the directions are to be given effect. (8) The person appointed under subsection (7)(a) to be administrator may apply to the Supreme Court for a grant of letters of administration of the property of the deceased and such letters of administration may be granted accordingly. (8A) For the purposes of the grant of the letters of administration and the administration under the grant, the property in respect of which the right of the State has been waived shall be deemed to form part of the estate of the deceased to be administered under the terms of the waiver for the benefit of the person or persons in favour of whom the waiver is made. (9) A waiver under subsection (5) shall have the effect of a grant of the land or other property of whatever kind the subject of the waiver or any part of the waiver, and in the case of land in fee simple or for any less estate, to the administrator appointed under this section or to any person or persons in favour of whom the waiver is made. (10) This section shall be subject to schedule 1 and all proceedings by way of writ of inquisition or otherwise may be had under that schedule. (11) Despite this section and that because of the death intestate of any person the State has a right to any property of that person by escheat or devolution or as bona vacantia the public trustee shall have and shall be deemed always to have had the same power— (a) to obtain from the court or otherwise under the Public Curator Act 1915 or the Public Trustee Act 1978 authority to administer the estate of such person; and (b) to deal in due course of administration with the estate of such person; as the public trustee has in a case where the State has no such right. (12) In this section— intestate has the meaning given by the Succession Act 1981, section 5. 21 Alienation in fee simple Land held of the Crown in fee simple may be assured in fee simple without licence and without fine and the person taking under the assurance shall hold the land of the Crown in the same manner as the land was held before the assurance took effect. 22 Abolition of estates tail (1) In any instrument coming into operation after the commencement of this Act a limitation which, if this section had not been enacted, would have created an estate tail (legal or equitable) in any land in favour of any person shall be deemed to create an estate in fee simple (legal or equitable as the case may be) in that land in favour of that person to the exclusion of all estates or interests limited to take effect after the determination or in defeasance of any such estate tail and to the exclusion of all estates or interests in reversion on any such estate tail. (2) Where at or after the commencement of this Act any person is entitled, or would, but for subsection (1), be entitled, to an estate tail (legal or equitable) and whether in possession, reversion, or remainder, in any land, that person, subject to subsection (2A), shall be deemed to be entitled to an estate in fee simple (legal or equitable, as the case may be) in that land, to the exclusion of all estates or interests limited to take effect after the determination or in defeasance of the estate tail and to the exclusion of all estates or interests in reversion on the estate tail. (2A) Where any such person is an infant and such land for any estate or interest would pass to any other person in the event of the death of the infant before attaining full age and without issue, then in such case, the infant shall be deemed to take an estate in fee simple with an executory limitation over of such estate or interest on the happening of such event in favour of such other person. (3) In this section— estate tail includes that estate in fee into which an estate tail is converted where the issue in tail are barred, but persons claiming estates by way of remainder or otherwise are not barred, also an estate in fee voidable or determinable by the entry of the issue in tail, but does not include the estate of a tenant in tail after possibility of issue extinct. (4) The registrar is authorised, on a request in the approved form, to make the recordings in the register necessary to give effect to this section. 23 Abolition of quasi-entails In any instrument coming into operation after the commencement of this Act a limitation which, if this section had not been passed, would have created in favour of any person a quasi-entail (legal or equitable) in respect of any estate for life or lives of another or others shall be deemed to create in favour of that person an estate (legal or equitable as the case may be) for the life or lives of that other. 24 Liability of life tenant for voluntary waste (1) A tenant for life or lives shall not commit voluntary waste. (2) Nothing in subsection (1) applies to any estate or tenancy without impeachment of waste, or affects any licence or other right to commit waste. (3) A tenant who infringes subsection (1) is liable in damages to the tenant's person in remainder or reversioner, but this section imposes no criminal liability. 25 Equitable waste An estate for life without impeachment of waste shall not confer, or be deemed to have conferred, upon the tenant for life any legal right to commit waste of the description known as equitable waste, unless an intention to confer such right expressly appears by the instrument creating such estate. 26 Recovery of property on determination of a life or lives (1) Every person having any estate or interest in any property determinable upon a life or lives who, after the determination of such life or lives without the express consent of the person next immediately entitled upon or after such determination, holds over or continues in possession of such property estate or interest, or of the rents, profits or income of the property, shall be liable in damages or to an account for such rents and profits, or both, to the person entitled to such property, estate, interest, rents, profits or income after the determination of such life or lives. (2) Where a reversion, remainder, or other estate or interest in any property is expectant upon the determination of a life or lives, the reversioner, person in remainder, or other person entitled to such reversion, remainder, or estate or interest may in any proceeding claiming relief on the basis that such life or lives has or have determined, adduce evidence of belief that such life or lives has or have been determined and of the grounds of such belief, and the court may in its discretion order that, unless the person or persons on whose life or lives such reversion, remainder, or other estate or interest is expectant is or are produced in court or is or are otherwise shown to be living, such person or persons shall for the purposes of such proceedings be accounted as dead, and relief may be given accordingly. (3) If in such proceedings a person in respect of whom it is material that the person be shown to be living or not is shown to have remained beyond Australia, or otherwise absented himself or herself from the place in which if in Australia the person might be expected to be found, for the space of 7 years or upwards, such person, if not proved to be living, shall for the purposes of such proceedings be accounted as dead, and relief may be given accordingly. (4) If in any such proceedings judgment has been given against the plaintiff, and afterwards such plaintiff brings subsequent proceedings upon the basis that such life has determined, the court may make an order staying such proceedings permanently or until further order or for such time as may be thought fit. (5) If in consequence of the judgment given in any such proceedings, any person having any estate or interest in any property determinable on such life or lives has been evicted from or deprived of any property or any estate or interest in the property, and afterwards it appears that such person or persons on whose life or lives such estate or interest depends is or are living or was or were living at the time of such eviction or deprivation, the court may give such relief as is appropriate in the circumstances. 27 Penalty for holding over by life tenant Where any tenant for life or lives or person who is in or comes into possession of any land by, from or under or by collusion with such tenant, wilfully holds over any land after— (a) termination of the tenancy; and (b) after demand has been made and notice in writing given for the delivery of possession of the land by the person to whom the remainder or reversion of such land belongs or the person's agent lawfully authorised; then, the person so holding over shall, for and during the time the person so holds over or keeps the person entitled out of possession of the land, be liable to the person kept out of possession at the rate of double the yearly value of the land so detained for as long as the land shall have been so detained, to be recovered by action in a court of competent jurisdiction. 28 Abolition of the rule in Shelley's Case Where by any instrument coming into operation after the commencement of this Act an interest in any property is expressed to be given to the heir or heirs or issue or any particular heir or any class of the heirs or issue of any person in words which, but for this section would, under the rule of law known as the rule in Shelley's Case, and independently of section 22, have operated to give to that person an interest in fee simple or an entailed interest, such words shall operate as words of purchase and not of limitation, and shall be construed and have effect accordingly. 29 Words of limitation (1) A disposition of freehold land to any person without words of limitation, or any equivalent expression, shall pass to the disponee the whole interest which the disponor had power to dispose of in such land, unless a contrary intention appears in the disposition. (2) A disposition of freehold land to a corporation sole by the disponor's corporate designation without the word 'successors' shall pass to the corporation the whole interest which the disponor had power to dispose of in such land, unless a contrary intention appears in the disposition. (3) This section applies to dispositions effected after the commencement of this Act. Part 4 Future interests 30 Creation of future interests in land (1) A future interest in land validly created after the commencement of this Act shall take effect as an equitable and not a legal interest. (2) An interest in remainder created after the commencement of this Act must not be registered in the freehold land register. (2A) Subsection (2) has effect despite anything in the Land Title Act 1994. (3) This section shall not apply to any future interest— (a) created before the commencement of this Act whether that interest arose or arises before or after the commencement of this Act; or (b) created or arising because of section 22. (4) In this section— future interest means— (a) a legal contingent remainder; or (b) a legal executory interest. 31 Power to dispose of all rights and interests in land (1) All rights and interests in land may be disposed of including— (a) a contingent, executory or future interest in any land or a possibility coupled with an interest in any land, whether or not the object of the gift or limitation of such interest or possibility be ascertained; and (b) a right of entry, into or upon land whether immediate or future, and whether vested or contingent. (2) All rights of entry affecting a legal estate which are exercisable on condition broken or for any other reason may, after the commencement of this Act, be made exercisable by any person and the persons deriving title under that person, but, in regard to an estate in fee simple (not being a rent charge held for a legal estate) only within the period authorised by the rule relating to perpetuities. 32 Restriction on executory limitations (1) Where there is a person entitled to— (a) land, or an equitable interest in land, for an estate in fee simple or for any less estate or interest; or (b) any other property, or an interest in any other property; with an executory limitation over on default or failure of all or any of the person's 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 full age and capacity of the class on default or failure of which the limitation over was to take effect. (2) This section applies where the executory limitation is contained in an instrument coming into operation after the commencement of this Act. Part 5 Concurrent interest—co-ownership Division 1 General rules 33 Forms of co-ownership (1) Any property and any interest, whether legal or equitable, in any property may be held by 2 or more persons— (a) as joint tenants; or (b) as tenants in common. (2) Any 2 or more persons acquiring land after the commencement of this Act in circumstances in which, but for the passing of this Act, they would have acquired the land as coparceners shall acquire such land as tenants in common and not as coparceners. 34 Power for corporations to hold property as joint tenants (1) A body corporate shall be capable of acquiring and holding any property in joint tenancy in the same manner as if it were an individual, and where a body corporate and an individual or 2 or more bodies corporate become entitled to any property under circumstances or because of any instrument which would, if the body corporate had been an individual, have created a joint tenancy they shall be entitled to the property as joint tenants. (1A) However, the acquisition and holding of property by a body corporate in joint tenancy shall be subject to the like conditions and restrictions as attach to the acquisition and holding of property by a body corporate in severalty. (2) Where a body corporate is a joint tenant of any property, then on its dissolution the property shall devolve on the other joint tenant. (3) This section shall apply in all cases of the acquisition or holding of property after the commencement of this Act. 35 Construction of dispositions of property to 2 or more persons together (1) A disposition of the beneficial interest in any property, whether with or without the legal interest, to or for 2 or more persons together beneficially shall be construed as made to or for them as tenants in common, and not as joint tenants. (2) This section does not apply— (a) to persons who by the terms or by the tenor of the disposition are executors, administrators, trustees, or mortgagees, nor in any case where the disposition provides that persons are to take as joint tenants or tenants by entireties; and (b) to a disposition for partnership purposes in favour of persons carrying on business in partnership. (3) Subject to the provisions of the Partnership Act 1891, a disposition for partnership purposes of an interest in any property in favour of persons carrying on business in partnership shall, unless a contrary intention appears, be construed as— (a) a disposition (if any) of the legal interest to those persons as joint tenants; and (b) a disposition (if any) of the beneficial interest to those persons as tenants in common. (4) This section applies to any disposition made after the commencement of this Act. (5) In this section— disposition includes a disposition which is wholly or partly oral. 36 Tenants in common of equitable estate acquiring the legal estate Where 2 or more persons entitled beneficially as tenants in common to an equitable estate in any property are or become entitled in their own right, whether as joint tenants or tenants in common, to the legal estate in such property equal to and coextensive with such equitable estate both the legal and equitable estates shall be held by them as tenants in common unless such persons otherwise agree. Division 2 Statutory trusts, sale and division 37 Definitions for div 2 In this division— co-owner has a corresponding meaning and includes an encumbrancee of the interest of a joint tenant or tenant in common. co-ownership means ownership whether at law or in equity in possession by 2 or more persons as joint tenants or as tenants in common. 37A Property held on statutory trust for sale Property held upon the statutory trust for sale shall be held upon trust to sell the same and to stand possessed of the net proceeds of sale, after payment of costs and expenses, and of the net income until sale after payment of costs, expenses, and outgoings, and in the case of land of rates, taxes, costs of insurance, repairs properly payable out of income, and other outgoings upon such trusts, and subject to such powers and provisions as may be requisite for giving effect to the rights of the co-owners. 37B Property held on statutory trust for partition Property held upon the statutory trust for partition shall be held upon trust— (a) with the consent of the encumbrancee of the entirety (if any) to partition the property and to provide (by way of mortgage or otherwise) for the payment of any equality money; and (b) upon such partition being made to give effect to the partition by assuring the property so partitioned in severalty (subject or not to any mortgage created for raising equality money) to the persons entitled under the partition; but a purchaser shall not be concerned to see or inquire whether any such consent has been given. 38 Statutory trusts for sale or partition of property held in co-ownership (1) Where any property (other than chattels personal) is held in co-ownership the court may, on the application of any 1 or more of the co-owners, and despite any other Act, appoint trustees of the property and vest the same in such trustees, subject to encumbrances affecting the entirety, but free from encumbrances affecting any undivided shares, to be held by them on the statutory trust for sale or on the statutory trust for partition. (2) Where the entirety of the property is vested in trustees or personal representatives, those trustees or personal representatives shall, unless the court otherwise determines, be appointed trustees on either of such statutory trusts, but subject, in the case of personal representatives, to, their rights and powers for the purposes of administration. (3) Where the entirety of the property is vested at law in co-owners the court may appoint a trustee corporation either alone or with 1 or 2 individuals (whether or not being co-owners), or 2 or more individuals, not exceeding 4 (whether or not including 1 or more of the co-owners), to be trustees of the property on either of such statutory trusts. (3A) On such appointment under subsection (3), the property shall, subject to the Trusts Act 1973, section 90, vest in the trustees. (4) If, on an application for the appointment of trustees on the statutory trust for sale, any of the co-owners satisfies the court that partition of the property would be more beneficial for the co-owners interested to the extent of upwards of a moiety in value than sale, the court may, with the consent of the encumbrancee of the entirety (if any), appoint trustees of the property on the statutory trust for partition, or as to part of the property on the statutory trust for sale, and as to part on the statutory trust for partition, but a purchaser shall not be concerned to see or inquire whether any such consent has been given. (5) When such trustees for partition have prepared a scheme of partition they shall serve notice in writing of the scheme on all the co-owners of full age, and any of such co-owners dissatisfied with the scheme may, within 1 month after service upon the co-owner of such notice, apply to the court for a variation of the same. (5AA) If any of the co-owners is a person for whom an administrator has been appointed under the Guardianship and Administration Act 2000 for the property, the notice must be served on the administrator. (5A) If any of the co-owners is an incapacitated person within the meaning of the Public Trustee Act 1978, the notice must be served on the person charged by law with the management and care of the incapacitated person's property, or if there is no person charged, on the public trustee. (5B) Where any of the co-owners is a person not of full age or a person who cannot be found or ascertained, or as to whom it is uncertain whether the person is living or dead, the trustees may act on behalf of the person, and retain land or other property to represent the person's share. (6) In relation to the sale or partition of property held in co-ownership, the court may alter such statutory trusts, and the trusts so altered shall be deemed to be the statutory trust in relation to that property. (6A) Without limiting the power of the court so to alter the statutory trusts, the court shall, unless for good reason the court otherwise directs, so alter the statutory trusts as to provide in the case of the statutory trust for partition that— (a) any encumbrance which, prior to the appointment of the trustees, affected any undivided share shall continue to extend and apply to any such share; and (b) any mortgage created for raising equality money shall rank in priority after any such encumbrance. (7) Where property becomes subject to such statutory trust for sale— (a) in the case of joint tenancy—a sale under the trust shall not of itself effect a severance of that tenancy; and (b) in any case—land shall be deemed to be converted upon the appointment of trustees for sale unless the court otherwise directs. (8) This section applies to property held in co-ownership at the commencement of this Act and to property which becomes so held after such commencement. (9) This section does not apply to property in respect of which a subsisting contract for sale (whether made under an order in a suit for partition, or by or on behalf of all the co-owners) is in force at the commencement of this Act, if the contract is completed in due course, nor to land in respect of which a suit for partition is pending at such commencement if a decree for a partition or sale is subsequently made in such suit. 39 Trustee on statutory trusts for sale or partition to consult persons interested (1) So far as practicable trustees on the statutory trust for sale, or on the statutory trust for partition, shall— (a) consult the persons of full age and not subject to disability for the time being beneficially entitled to income of the property until sale or partition, and the public trustee or other person charged by law with the management and care of the property of any person for whom an administrator has been appointed under the Guardianship and Administration Act 2000 for the property, or protected person, for the time being beneficially entitled to income of the property until sale or partition; and (b) so far as consistent with the general interest of the trust, give effect to the wishes of the persons so consulted if they are interested in respect of more than half of the income of the property until sale or partition or, in case of dispute, of such of the persons so consulted as are in agreement and are interested in respect of more than half of the income of the property until sale or partition. (2) A purchaser shall not be concerned to see that this section has been complied with. 40 Right of co-owners to bid at sale under statutory power of sale (1) On any sale under a statutory trust for sale the court may allow any of the co-owners of the property to purchase whether at auction or otherwise on such terms as to non-payment of deposit, or as to setting off or accounting for the purchase money or any part of the purchase money instead of paying the same, or as to any other matters as to the court seems reasonable. (2) A co-owner, with a right to purchase shall not, without the leave of the court, be entitled to act as trustee in connection with the sale. 41 Sale or division of chattels (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 any application under this section the court may— (a) order that the chattels in respect of which the application is made, or any 1 or more of them, be sold and the proceeds of sale distributed among the persons entitled to them under their interests in the chattel or chattels; or (b) order 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) order that 1 or more of such chattels be sold and the others be divided; or (d) make such other orders and give any consequential directions as it thinks fit. 42 Powers of the court In proceedings under section 38 or 41 the court may on the application of any party to the proceedings or of its own motion— (a) determine any question of fact arising (including questions of title) in the proceedings or give directions as to how such questions shall be determined; and (b) direct that such inquiries be made and such accounts be taken as may in the circumstances be necessary for the purpose of ascertaining and adjusting the rights of the parties. 43 Liability of co-owner to account (1) A co-owner shall, in respect of the receipt by the co-owner of more than the co-owner's just or proportionate share according to the co-owner's interest in the property, be liable to account to any other co-owner of the property. (2) In this section— co-owner means a joint tenant, whether in law or in equity, or a tenant in common, whether at law or in equity, of any property. Part 6 Deeds, covenants, instruments and contracts Division 1 Deeds and covenants Subdivision 1 Preliminary 44 Definitions for division In this division— accepted method, for electronically signing a document, means a method that— (a) identifies the signatory for the document and the signatory's intention in relation to the contents of the document; and (b) is either— (i) as reliable as appropriate for the purposes for which the document is made or signed, having regard to all the circumstances, including any relevant agreement; or (ii) proven in fact to have fulfilled the functions described in paragraph (a), by itself or together with further evidence; and (c) is consented to by each other signatory to the document. consent includes consent that can reasonably be inferred from the conduct of the person concerned, but does not include consent given subject to conditions unless the conditions are complied with. copy, of an electronic document, means a reproduction of the document in either electronic or hard copy form. counterpart, for a document, see section 45. document means any record of information however recorded and includes— (a) anything on which there is writing; and (b) anything on which there are marks, symbols or perforations having a meaning for persons qualified to interpret them; and (c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; and (d) any record of information that exists in digital form and is capable of being reproduced, transmitted, stored or duplicated by electronic means. electronically sign, a document, means sign the document using an accepted method. electronic document means— (a) a record of information reproduced from a thing mentioned in definition document, paragraph (c); or (b) a document of a type mentioned in definition document, paragraph (d). information includes information in the form of data, text or images. physical document means a document of a type mentioned in definition document, paragraph (a) or (b). seal, of a corporation, includes a common seal of the corporation. secretary, of a corporation, means the clerk, secretary or other permanent officer of the corporation. sign, a document, means— (a) for a physical document—physically sign the document; or (b) for an electronic document—electronically sign the document. 45 What is a counterpart for a document (1) A counterpart, for a document, is a copy of the document that includes the entire contents of the document. (2) Despite subsection (1), a counterpart need not include— (a) the signatures of the other persons who are to sign the document; or (b) if a common seal is fixed to the document—the seal. 46 Division does not apply to enduring documents This division does not apply to an enduring document under the Powers of Attorney Act 1998. 46A Application of division to powers of attorney (1) Despite anything in this division, each of the following documents made by an individual must be a physical document that is signed by the individual in the presence of a witness— (a) a general power of attorney under the Powers of Attorney Act 1998; (b) a power of attorney given under a deed. (2) However, a document containing a power of attorney given by an individual under a deed may be an electronic document that is electronically signed by the individual if— (a) the document is part of a commercial or other arms-length transaction; and (b) the power of attorney is given for the purpose of the commercial or other arms-length transaction. Example of a document that may be electronically signed under subsection (2)— A document containing a power of attorney given by an individual under a deed as security for a proprietary interest of another party to the document or the performance of an obligation owed by the individual. (3) To remove any doubt, it is declared that— (a) subsection (2) applies to a document even if the document is executed at a different time from, and is separate to, other documents that form part of the transaction; and (b) a power of attorney given by an individual under a deed under subsection (2) may be signed under subsection (2) whether or not in the presence of a witness. (4) This section applies subject to section 46G. (5) In this section— individual includes an individual in the individual's capacity as a sole trader. 46B Execution of documents under other Acts This division does not affect the way in which documents are validly executed under the Land Act 1994 or the Land Title Act 1994. Subdivision 2 General rules 46C How deed is made generally (1) A document takes effect as a deed if the document— (a) is in writing; and (b) contains a clear statement that the document is a deed; and (c) is executed under this division; and (d) is delivered in accordance with section 47. (2) A document takes effect as a deed under subsection (1) even if— (a) it is not written on paper or parchment; or (b) it is not an indenture or stated to be an indenture; or (c) it is not sealed or stated to be sealed. 46D Deed may be in form of electronic document and electronically signed A document that is to have effect as a deed may be in the form of an electronic document and may be electronically signed. 46E Execution by individual (1) An individual may execute a document that is to have effect as a deed by signing the document. (2) An individual may sign a document under subsection (1) whether or not in the presence of a witness. 46F Execution by corporation (1) Subject to subsection (2A), a corporation may execute a document that is to have effect as a deed, without using a seal, if the document is signed by— (a) 2 directors of the corporation; or (b) 1 director and 1 secretary of the corporation; or (c) for a proprietary company that has a sole director—that director, if— (i) the director is also the sole company secretary; or (ii) the company does not have a company secretary; or (d) a lawfully authorised agent or attorney of the corporation, whether or not the agent or attorney is appointed under seal. (2) Subject to subsection (2A), a corporation with a common seal may execute a document that is to have effect as a deed if the seal is fixed to the document and the fixing of the seal is witnessed by— (a) 2 directors of the corporation; or (b) 1 director and 1 secretary of the corporation; or (c) for a proprietary company that has a sole director—that director, if— (i) the director is also the sole company secretary; or (ii) the company does not have a company secretary. (2A) A corporation sole or statutory corporation may execute a document that is to have effect as a deed, without using a seal, if the document is signed by a person, or in a way, authorised by the Act or another document under which the corporation is established, incorporated or registered. (3) For subsection (2), or a corporation sole or statutory corporation if a seal is used, the fixing of a seal to a document is taken to have been witnessed by a person if— (a) the person observes the fixing of the seal by audio visual link; and (b) the person signs the document; and (c) the document includes a statement that the person observed the fixing of the seal by audio visual link. (5) A corporation that is not incorporated under an Australian law may execute a document that is to have effect as a deed if the document is signed by a person, or in a way, authorised by the law of the place in which the corporation is incorporated. (6) A document that is to have effect as a deed may be signed under this section whether or not in the presence of a witness. (7) If a person signs a document that is to have effect as a deed for a corporation as a lawfully authorised agent or attorney for the corporation, the person must— (a) sign the document in a way that indicates the person is signing as a lawfully authorised agent or attorney; and (b) if the person is an individual—sign the document under section 46E; and (c) if the person is a corporation—sign the document under this section. (8) This section does not limit the ways in which a document that is to have effect as a deed for a corporation may be executed by the corporation. (9) In this section— attorney, for a corporation, means a person acting under the authority of a power of attorney given by the corporation under a deed, a general power of attorney under the Powers of Attorney Act 1998, or another law. audio visual link means facilities that enable reasonably contemporaneous and continuous audio and visual communication between persons at different places and includes videoconferencing. statutory corporation means an entity established, incorporated or registered under an Act of the Commonwealth or a State, that is not a corporation registered under the Corporations Act. 46G Execution by partnership or unincorporated association (1) An individual may execute a document that is to have effect as a deed on behalf of a partnership or unincorporated association by signing the document. (2) An individual may sign a document under subsection (1) whether or not in the presence of a witness. (3) If an individual signs a document under subsection (1), the individual must sign the document in a way that indicates the person is executing the document on behalf of the partnership or unincorporated association. (4) A reference in subsection (1) to a document includes a document containing a power of attorney for the partnership or unincorporated association. (5) This section does not limit or otherwise affect another law or instrument that requires or permits a document executed on behalf of a partnership or unincorporated association to be executed in a particular way. Example— This section does not affect an instrument that requires or permits a document executed on behalf of a partnership to be executed by a stated number of partners. 46GA Execution by the State (1) A person who is authorised to execute a document that is to have effect as a deed for the State may execute the document by signing the document. (2) The person may sign the document under subsection (1) without using a seal and whether or not in the presence of a witness. (3) If a seal is used to execute a document that is to have effect as a deed for the State, the fixing of the seal to the document is taken to have been witnessed by a person who is authorised to witness the fixing of the seal if— (a) the person observes the fixing of the seal by audio visual link; and (b) the person signs the document; and (c) the document includes a statement that the person observed the fixing of the seal by audio visual link. (4) This section is subject to section 46F(2A). (5) This section does not limit the State's powers or legal capacity under another law. (6) In this section— State includes a public sector unit and any other entity that represents the State. 46H Signing counterpart or true copy (1) A document that is to have effect as a deed for a person may be signed by or for the person by signing a counterpart or true copy of the document. (2) For subsection (1), if the counterpart or true copy is electronically signed by a person, the counterpart or true copy need not include any material included in the document about the method used for electronically signing the document. (3) In this section— person includes a partnership, an unincorporated association and the State. 47 Delivery of deeds (1) After the commencement of this Act, execution of an instrument— (a) in the form of a deed; or (b) in another form under this subdivision; shall not of itself import delivery, nor shall delivery be presumed from the fact of such execution only, unless it appears that execution of the document was intended to constitute delivery of the document. (2) Subject to subsection (1), delivery may be inferred from any fact or circumstance, including words or conduct, indicative of delivery. (3) In this section— delivery means the intention to be legally bound either immediately or subject to fulfilment of a condition. 48 Construction of expressions used in deeds and other instruments (1) In all deeds, contracts, wills, orders and other instruments executed, made or coming into operation after the commencement of this Act, unless the context otherwise requires— (a) month means calendar month; and (b) person includes an individual and a corporation; and (c) words indicating a gender include each other gender; and (d) words in the singular include the plural and words in the plural include the singular. (2) A covenant, power or other provision implied in a deed or other instrument because of this or any other Act shall be construed in accordance with subsection (1). 49 Implied covenants may be negatived (1) Subject to this Act, a covenant, power or other provision implied under this or any other Act shall have the same force and effect, and may be enforced in the same manner, as if it had been set out at length in the instrument in which it is implied. (2) Any such covenant or power may, unless otherwise provided in this or such other Act, be negatived, varied, or extended by— (a) an express declaration in the instrument in which it is implied; or (b) another instrument. (3) Any such covenant or power so varied or extended shall, so 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 implied under the Act. 50 Covenants and agreements entered into by a person with himself or herself and another or others (1) Any covenant, whether express or implied, or agreement entered into by a person with the person and 1 or more other persons shall be construed and be capable of being enforced in like manner as if the covenant or agreement had been entered into with the other person or persons alone. (2) This section applies to covenants or agreements entered into before or after commencement of this Act, and to covenants implied by statute in the case of a person who conveys or is expressed to convey to the person and 1 or more other persons, but without prejudice to any order of the court made before such commencement. 51 Receipt in instrument sufficient (1) A receipt for consideration money or securities in the body of a deed or other instrument 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 or instrument. (2) This section applies only to deeds or instruments executed after the commencement of this Act. 52 Receipt in instrument or endorsed evidence (1) A receipt for consideration money or other consideration in the body of a deed or instrument or endorsed on the deed or instrument shall in favour of a subsequent purchaser not having notice that the money or other consideration 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 of the money or other consideration. (2) This section applies to deeds or instruments executed or endorsements made before or after the commencement of this Act. 53 Benefit and burden of covenants relating to land (1) A covenant relating to any land of the covenantee shall be deemed to be made with the covenantee and the covenantee's successors in title and the persons deriving title under the covenantee or the covenantee's successors in title, and shall have effect as if such successors and other persons were expressed. (2) A covenant relating to any land of a covenantor or capable of being bound by the covenantor, shall, unless a contrary intention is expressed, be deemed to be made by the covenantor on behalf of the covenantor, the covenantor's successors in title and the persons deriving title under the covenantor or the covenantor's successors in title, and, shall have effect as if such successors and other persons were expressed. (2A) Subsection (2) extends to a covenant to do some act relating to the land, even though 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 user of land— successors in title shall be deemed to include the owners and occupiers for the time being of such land. (4) This section applies only to covenants made after the commencement of this Act, but shall take effect subject, in the case of registered land, to the Land Title Act 1994. 53A Deposit of deed in registry (1) This section applies to a deed made under this part that is proposed to be deposited in a registry— (a) in support of another document lodged or deposited in the registry; or (b) for registration, enrolment or recording under section 241(1). (2) If the deed is made in counterparts, each counterpart must be deposited in the registry for the purpose. (3) If the deed or a counterpart of the deed is in the form of an electronic document, a printed copy of the deed or counterpart certified under subsection (4) must be deposited in the registry for the purpose. (4) For subsection (3), the printed copy must be certified as a true copy of the original deed or counterpart— (a) on the last page of the printed copy; and (b) by 1 of the following persons— (i) 1 of the signatories; (ii) a lawyer; (iii) a justice; (iv) a commissioner for declarations; (v) a notary public; (vi) a trustee company under the Trustee Companies Act 1968; (vii) a stockbroker. (5) In this section— registry means— (a) the land registry; or (b) the water allocations register under the Water Act 2000. 53B Protection for third parties (1) A person may assume that a document has been duly executed by a corporation if— (a) the document appears to have been signed under section 46F(1); or (b) both of the following apply— (i) the common seal of the corporation appears to have been fixed to the document under section 46F(2); (ii) the fixing of the common seal as mentioned in subparagraph (i) appears to have been witnessed under section 46F(2). (2) Nothing in this section limits or affects any requirement to be satisfied that a person signing a document is a director, secretary, or lawfully authorised agent or attorney, of a corporation. Division 2 General rules affecting contracts 54 Effect of joint contracts and liabilities (1) Subject to this and to any other Act— (a) a promise made by 2 or more persons shall, unless a contrary intention appears, be construed as a promise made jointly and severally by each of those persons; and (b) a liability which is joint shall not be discharged, nor shall a cause of action with respect to the liability be extinguished, because of any fact, event, or matter except to the extent that the same would because of the fact, event or matter be discharged or extinguished if the liability were joint and several and not joint. (2) In this section— promise includes a promise under seal, a covenant, whether express or implied under this Act, and a bond or other obligation under seal. (3) This section applies only to a promise, liability or cause of action coming into existence after the commencement of this Act. 55 Contracts for the benefit of third parties (1) A promisor who, for a valuable consideration moving from the promisee, promises to do or to refrain from doing an act or acts for the benefit of a beneficiary shall, upon acceptance by the beneficiary, be subject to a duty enforceable by the beneficiary to perform that promise. (2) Prior to acceptance the promisor and promisee may, without the consent of the beneficiary, vary or discharge the terms of the promise and any duty arising from it. (3) Upon acceptance— (a) the beneficiary shall be entitled in the beneficiary's own name to such remedies and relief as may be just and convenient for the enforcement of the duty of the promisor, and relief by way of specific performance, injunction or otherwise shall not be refused solely on the ground that, as against the promisor, the beneficiary may be a volunteer; and (b) the beneficiary shall be bound by the promise and subject to a duty enforceable against the beneficiary in the beneficiary's own name to do or refrain from doing such act or acts (if any) as may by the terms of the promise be required of the beneficiary; and (c) the promisor shall be entitled to such remedies and relief as may be just and convenient for the enforcement of the duty of the beneficiary; and (d) the terms of the promise and the duty of the promisor or the beneficiary may be varied or discharged with the consent of the promisor and the beneficiary. (4) Subject to subsection (1), any matter which would in proceedings not brought in reli