South Australia: Law of Property Act 1936 (SA)

South Australia Law of Property Act 1936 An Act to consolidate and amend certain Acts relating to property and conveyancing. Contents Part 1—Preliminary 1 Short title 4 Repeal 5 Savings 6 Application of Act to land under Real Property Act 1886 7 Interpretation Part 2—General rules affecting property 8 Lands lie in grant only 9 Use of word "grant" unnecessary 10 Power to dispose of all rights and interests in land 11 Lis pendens to be registered 12 Tenant for life without impeachment of waste, not to commit equitable waste 13 No merger at law where none in equity 14 Suits for possession of land by mortgagors 15 Assignment of debts and choses in action 16 Stipulations not of the essence of a contract 17 Satisfied terms, whether created out of freehold or leasehold land, to cease 18 Vesting order consequential on judgment for sale or mortgage of land 19 Vesting order consequential on judgment for specific performance etc 20 Rights of pre-emption capable of release 21 Purchaser not to be concerned with the trusts of the proceeds of sale 22 Right of light not deemed to exist by reason only of enjoyment or presumption of lost grant 23 Gift not to be avoided by illegal stipulation attached thereto 24 Alien friends may hold real and personal property 24A Certain contracts with infants for the repayment of loans to be valid 24B Abolition of doctrine of interesse termini 24C Body corporate may hold property as joint tenant 24D Capacities of corporations 25 Contingent remainders protected against the premature failure of a preceding estate Part 3—General rules affecting contracts, conveyances, and other instruments 26 Contracts for sale of land to be in writing 27 Discharge of incumbrances by the Court on sales or exchanges 28 Conveyances to be by deed 29 Instruments required to be in writing 30 Creation of interests in land by parol 31 Savings in regard to last two sections 32 Effect of possession of documents 33 Interests of persons in possession 34 Persons taking who are not parties and as to indentures 35 Conditions and certain covenants not implied 36 General words implied in conveyances 37 All estate clause implied 38 Partial release of security from rent-charge 39 Release of part of land affected from a judgment 40 Conveyances by a person to self etc 41 Execution and attestation of deeds 41AA Execution and attestation of other instruments 41A Easements without dominant land to be validly created 42 Covenants for title Part 4—Mortgages 43 Realisation of equitable charges by the court 44 Sale of mortgaged property in action for redemption or foreclosure 45 Obligation to transfer instead of reconveying 46 Vesting order in place of conveyance by devisee of mortgagee 47 Powers incident to estate or interest of mortgagee 48 Regulation of exercise of power of sale 49 Conveyance on sale 50 Application of proceeds of sale 51 Provisions as to exercise of power of sale 52 Mortgagee's receipts, discharges etc 53 Appointment, powers, remuneration and duties of receiver 54 Effect of advance on joint account 55 Notice of trusts affecting mortgage debts 55A Enforcement of rights against mortgagor 55B Collateral covenants 56 Application to registered land Part 5—Powers 57 Disclaimer etc of powers 57A Validation of appointments where objects are excluded or take illusory shares 58 Execution of powers not testamentary Part 6—Class closure, perpetuities and accumulations Division 1—Preliminary 58A Interpretation and jurisdiction 59 Application of Part Division 2—Rules for class ascertainment 60 Class ascertainment 60A Court's power to reverse statutory limitation on class membership Division 3—Perpetuities and accumulations 61 Abolition of rules against perpetuities and excessive accumulations 62 Court may order vesting of interests 62A Preservation of rule in Saunders v Vautier Part 7—Apportionment 63 Definitions 64 Apportionment of rents in respect of time 65 When apportioned part payable or recoverable 66 Right of recovering apportioned parts 67 Policies of assurance 68 Contracting out Part 8—Partition 69 Power to order partition or sale instead of partition 70 Sale on application of certain proportion of parties interested 71 As to purchase of share of party desiring sale 72 Notice to interested parties 73 Proceedings where service is dispensed with 74 Authority for parties interested to bid 75 Court to declare what parties are trustees of lands comprised in any suit, and as to the interests of persons unborn 76 Payment and application of moneys arising from settled land 77 Trustees may apply moneys in certain cases without application to court 78 Until money directed to be applied it is to be invested and dividends to be paid to parties entitled 79 Court may direct application of money in respect of leases or reversions as may appear just 80 Interpretation of settled land 81 Provision for case of successive sales in same auction 82 Request by infant or person under disability 83 Application for partition to include application for sale and distribution of the proceeds 84 Costs Part 9—Voidable dispositions 86 Voluntary conveyances to defraud creditors 87 Voluntary disposition with intent to defraud voidable as against purchasers 88 Acquisitions of reversions at an under value Part 10—Miscellaneous 89 Vesting order in lieu of conveyance 90 Vesting order in cases of mentally incapacitated or infant mortgagee 91 In what cases the heir, representative, or devisee of a person, who has contracted to sell land, shall be deemed a trustee 100 Assurance policy by spouses 108 Interpretation of terms 110 Invalidity of restraints upon anticipations 112 Regulations respecting notices 114 Power of Court to sell interest of Crown in real estate 116 Definition of intestacy 117 Restrictions on constructive notice 118 Lessor to have benefit of an informal insurance 119 Payment into court 120 Saving of certain rights of the Crown Schedule 1—Acts repealed Schedule 2—Implied covenants 1 Covenant implied in a conveyance for valuable consideration, other than a mortgage, by a person who conveys and is expressed to convey as beneficial owner 2 Further covenant implied in a conveyance of leasehold property for valuable consideration, other than a mortgage, by a person who conveys and is expressed to convey as beneficial owner 3 Covenant implied in a conveyance by way of mortgage by a person who conveys and is expressed to convey as beneficial owner 4 Covenant implied in a conveyance by way of mortgage of leasehold property by a person who conveys and is expressed to convey as beneficial owner 5 Covenant implied in a conveyance by way of settlement, by a person who conveys and is expressed to convey as settlor 6 Covenant implied in any conveyance, by every person who conveys and is expressed to convey as trustee or mortgagee, or as personal representative of a deceased person, or as administrator, committee or other person empowered to act on behalf of a mentally incapacitated person or under an order of the court Legislative history The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Law of Property Act 1936. 4—Repeal The Acts mentioned in Schedule 1 of this Act are repealed to the extent shown in that Schedule. 5—Savings Any alteration, by this Act, of the law, whether by the repeal of an enactment, or otherwise, shall not, unless otherwise expressly provided by this Act affect— (a) any right accrued, or obligation incurred, before the commencement of this Act under the law so altered; or (b) the validity or invalidity, or any operation, effect or consequence of any instrument executed or made, or of anything done or suffered before the commencement of this Act; or (c) any action, proceeding or thing then pending or uncompleted and every such action, proceeding and thing may be carried on and completed as if the enactment had not been repealed, or the law otherwise altered. 6—Application of Act to land under Real Property Act 1886 Except as in this Act expressly provided, this Act, so far as inconsistent with the Real Property Act 1886 shall not apply to land which is under the provisions of that Act. 7—Interpretation In this Act unless inconsistent with the context or subject-matter or some other meaning is clearly intended— bankruptcy includes insolvency and liquidation by arrangement and also any other act or proceeding in law having under any law for the time being in force effects or results similar to those of bankruptcy; building purposes includes the erecting and improving of and the adding to, and the repairing of buildings; and a building lease is a lease for building purposes or purposes connected therewith; conveyance includes a mortgage, charge, lease, assent, vesting declaration, disclaimer, release, surrender, extinguishment and every other assurance of property or of an interest therein by any instrument, except a will; convey has a corresponding meaning; court means— (a) the Supreme Court; or (b) the District Court; or (c) if the proceedings involve property with a value not exceeding the amount by reference to which the jurisdictional limit of the Magistrates Court is fixed for actions to obtain or recover title to, or possession of, real or personal property—the Magistrates Court; disposition includes a conveyance and also a devise, bequest, or an appointment of property contained in a will; and dispose of has a corresponding meaning; income includes rents and profits; incumbrance includes a legal or equitable mortgage and a trust for securing money, and a lien, and a charge of a portion, annuity, or other capital or annual sum; and incumbrancer has a meaning corresponding with that of incumbrance, and includes every person entitled to the benefit of an incumbrance, or to require payment or discharge thereof; instrument includes deed and will but does not include a statute, unless the statute creates a settlement; interest in property means a legal or equitable interest; land includes land of any tenure, and mines and minerals whether or not held apart from the surface, buildings or parts of buildings (whether the division is horizontal, vertical or made in any other way) and other corporeal hereditaments; also a rent and other incorporeal hereditaments, and an easement, right, privilege, or benefit in, over, or derived from the land and also an undivided share in land; and mines and minerals include any strata or seam of minerals or substances in or under any land, and powers of working and getting the same; limitation includes a trust; mentally incapacitated person has the same meaning as in the Guardianship and Administration Act 1993; mining lease means a lease for mining purposes, that is the searching for, winning, working, getting, making merchantable, carrying away, or disposing of mines and minerals, or purposes connected therewith, and includes a grant or licence for mining purposes; mortgage includes any charge or lien on any property for securing money or money's worth; mortgage money means money or money's worth secured by a mortgage; mortgagor includes any person from time to time deriving title under the original mortgagor or entitled to redeem a mortgage according to his estate interest or right in the mortgaged property; mortgagee includes 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; and right of redemption includes an option to repurchase only if the option in effect creates a right of redemption; notice includes constructive notice; personal representative means the executor, original or by representation, or administrator for the time being of a deceased person; possession includes receipt of rents and profits or the right to receive the same (if any); property includes any thing in action, and any interest in real or personal property; purchaser means a purchaser in good faith for valuable consideration and includes a lessee, mortgagee or other person who for valuable consideration acquires an interest in property except that where so expressly provided purchaser means a person only who acquires an interest in or charge on property for money or money's worth; and where the context so requires purchaser includes an intending purchaser; purchase has a meaning corresponding with that of purchaser; and valuable consideration includes marriage but does not include a nominal consideration in money; registered land means land which is subject to the Real Property Act 1886; and registrar means the Registrar-General under that Act; rent includes a rent service or a rent charge, or other rent toll, duty, royalty, or annual or periodical payment in money or money's worth, reserved or issuing out of or charged upon land, but does not include mortgage interest; rent charge includes a fee farm rent; fine includes a premium or foregift and any payment consideration, or benefit in the nature of a fine, premium or foregift; lessor includes an under-lessor and a person deriving title under a lessor or under-lessor; and lessee includes an under-lessee and a person deriving title under a lessee or under-lessee, and lease includes an under-lease or other tenancy; representative means an executor or administrator, and includes the Public Trustee in cases where the Supreme Court shall have authorised him to administer the estate of a deceased person; sale means a sale properly so called; securities include stocks, funds and shares; trust for sale in relation to land, means an immediate binding trust for sale, whether or not exercisable at the request or with the consent of any person, and with or without a power at discretion to postpone the sale; trustees for sale means the persons (including a personal representative) holding land on trust for sale; and power to postpone a sale means power to postpone in the exercise of a discretion; vest, in relation to property, means to vest in interest or possession. Example— For example, an interest in remainder vests in interest when— (a) the persons who are to take the interest are ascertainable; and (b) the vesting in possession of the interest is dependent only on the determination of prior interests and no other contingency. Part 2—General rules affecting property 8—Lands lie in grant only All lands and all interests therein 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; 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. 9—Use of word "grant" unnecessary The use of the word "grant" is not necessary to convey land or to create any interest therein. 10—Power to dispose of all rights and interests in land 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; (b) a right of entry, into or upon land whether immediate or future, and whether vested or contingent. 11—Lis pendens to be registered No lis pendens shall bind any bona fide purchaser or mortgagee for valuable consideration without express notice thereof, unless and until it is registered under the Registration of Deeds Act 1935 by delivering to the Registrar-General of Deeds a memorial containing the title of the cause or matter, and the name and address of the persons whose estate or interest is sought to be affected thereby; and every such memorial shall be signed by the solicitor of one of the parties to the cause or matter, or of some person claiming to be entitled to deliver such memorial. 12—Tenant for life without impeachment of waste, not to commit equitable waste An estate for life, without impeachment of waste, shall not confer 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. 13—No merger at law where none in equity There shall not be any merger by operation of law only of any estate, the beneficial interest in which would not be deemed to be merged or extinguished in equity. 14—Suits for possession of land by mortgagors A mortgagor entitled for the time being to the possession or receipt of the rents and profits of any land, as to which no notice of his intention to take possession or to enter upon the receipt of the rents and profits thereof has been given by the mortgagee, may sue for such possession, or for the recovery of such rents or profits, or to prevent or to recover damages in respect of any trespass or other wrong relative thereto, in his own name only, unless the cause of action arises upon a lease or other contract made by him jointly with any other person. 15—Assignment of debts and choses in action (1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal chose 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 receive or claim such debt or chose in action, shall be 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 chose in action; and (b) all legal and other remedies for the same; and (c) the power to give a good discharge for the same, without the concurrence of the assignor. (2) However, if the debtor, trustee, or other person liable in respect of such debt or chose in action has notice— (a) that such 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 chose in action, he may, if he thinks fit, either call upon the persons making claim thereto to interplead concerning the same, or pay the debt or other chose in action into court, under the provisions of the Trustee Act 1936. 16—Stipulations not of the essence of a contract Stipulations in a contract, as to time or otherwise, which according to rules of equity are not deemed to be or to have become of the essence of the contract, shall be construed and have effect at law in accordance with the rules of equity. 17—Satisfied terms, whether created out of freehold or leasehold land, to cease (1) Where the purposes of a term of years, created or limited at any time out of freehold land, become satisfied (whether or not that term either by express declaration or by construction of law becomes attendant upon the freehold reversion), that term of years 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, that term shall merge in the reversion expectant thereon and cease accordingly. (3) Where the purposes are satisfied as respects part only of the land comprised in a term, this section has effect as if a separate term had been created in regard to that part of the land. 18—Vesting order consequential on judgment for sale or mortgage of land Where the court gives a judgment, or makes an order directing the sale or mortgage of land, every person, whether under disability or not, who is entitled to or possessed of the land, or entitled to any interest therein, and is a party to the action or proceeding, or otherwise bound by the judgment or order, shall be deemed to be so entitled or possessed, as the case may be, as a trustee within the meaning of the Trustee Act 1936; and the court may, if it thinks expedient, make an order vesting the land, or any part thereof, for such estate as the court thinks fit in the purchaser or mortgagee, or in any other person. 19—Vesting order consequential on judgment for specific performance etc Where a judgment is given for the specific performance of a contract concerning any land, or for the partition, or sale in lieu of partition, or exchange of any land, or generally where any judgment is given for the conveyance of any land, either in cases arising out of the doctrine of election or otherwise, the court may declare that any of the parties to the action are trustees of the land, or any part thereof, within the meaning of the Trustee Act 1936 or may declare that the interests of unborn persons who might claim under any party to the action, or under the will or voluntary settlement of any person deceased who was during his lifetime a party to the contract or transactions concerning which the judgment is given, are the interests of persons who, on coming into existence, would be trustees within the meaning of the Trustee Act 1936; and thereupon the court may make a vesting order relating to the rights of those persons, born and unborn, as if they had been trustees. 20—Rights of pre-emption capable of release All statutory and other rights of pre-emption affecting a legal estate shall be and be deemed always to have been capable of release. 21—Purchaser not to be concerned with the trusts of the proceeds of sale A purchaser of a legal estate from trustees for sale shall not be concerned with the trusts affecting the proceeds of sale of land subject to a trust for sale or affecting the rents and profits of the land until sale, whether or not those trusts are declared by the same instrument by which the trust for sale is created. 22—Right of light not deemed to exist by reason only of enjoyment or presumption of lost grant (1) After the twenty-sixth day of October, 1911, no right to the access or use of light to or for any building shall be capable of coming into existence by reason only of the enjoyment of such access or use for any period of time, or of any presumption of a lost grant based upon such enjoyment. (2) This section shall not affect any right actually acquired before the said date. 23—Gift not to be avoided by illegal stipulation attached thereto (1) No gift, whether by testamentary disposition or by instrument inter vivos, shall be held to be void solely on the ground that the testator or donor has attached an illegal stipulation to such gift, whether such stipulation is in the nature of a limitation of the gift or of a condition precedent or subsequent to the gift, unless it is proved to the satisfaction of the court before which the matter is in question that the donee of such gift consented to such stipulation at or before the time when the testamentary disposition or instrument inter vivos was executed by the testator or donor. (2) Unless it is proved as aforesaid, in construing the testamentary disposition or instrument inter vivos, the gift shall be read as if the illegal stipulation had not been attached thereto. 24—Alien friends may hold real and personal property Every alien friend may inherit, or otherwise take by representation, acquire, hold, convey, assign, devise, bequeath, or otherwise dispose of every description of property, whether real or personal, in the same manner as if he were a natural-born subject of His Majesty. 24A—Certain contracts with infants for the repayment of loans to be valid (1) Notwithstanding anything to the contrary contained in any other Act or in any rule of common law or equity the following contracts, whether entered into before or after the commencement of the Law of Property Act Amendment Act 1966 shall be as valid and binding on an infant for all purposes as if the infant were of full age at the time he entered into the contract, namely— (a) any contract entered into by an infant not under the age of eighteen years with the State Bank of South Australia for the repayment of moneys advanced or to be advanced to the infant by the said bank under the provisions of the Advances for Homes Act 1928; and (b) any contract entered into by an infant not under the age eighteen years with the South Australian Housing Trust or any institution or society within the meaning of the Homes Act 1941 for the repayment of moneys lent or to be lent to the infant by the said Trust or any such institution or society; and (c) any contract entered into by an infant not under the age of eighteen years— (i) with a building society registered under the Building Societies Act 1881; or (ii) with an industrial and provident society registered under the Industrial and Provident Societies Act 1923, for the repayment of moneys lent or advanced or to be lent or advanced to the infant by any such society; and (d) any contract entered into by an infant not under the age of eighteen years for the repayment of moneys lent or advanced or to be lent or advanced to the infant by a bank or life assurance company or society for the purpose of purchasing or erecting a dwelling house for his own occupation; and (e) any contract entered into by an infant not under the age of eighteen years with any building contractor for the purchase or erection of a dwelling house for his own occupation. (2) An infant who has entered into any contract referred to in the last preceding subsection, whether before or after the commencement of the Law of Property Act Amendment Act 1966 shall not at any time be entitled on any ground relating to his infancy or former infancy to avoid any of his obligations under the contract or under any instrument executed by the infant whereby the repayment of any moneys lent or advanced is secured or to repudiate any contract or any transfer, conveyance or assignment to any such infant relating to any property charged by him. (3) Any instrument executed or purporting to have been executed by an infant by way of security for the repayment of any moneys lent or advanced or to be lent or advanced to the infant in pursuance of a contract of a kind referred to in subsection (1) of this section shall be as valid and effectual for all purposes as if the infant were of full age and capacity at the time he executed the instrument. (4) For the purposes of this section— (a) any reference in this section to a contract entered into by an infant shall be read and construed as including reference to a contract entered into by an infant jointly with some other person or persons (whether of full age or not); and (b) any reference in this section to moneys lent or advanced or to be lent or advanced to an infant shall be read and construed as including reference to moneys lent or advanced or to be lent or advanced to the order of an infant or to an infant jointly with some other person or persons (whether of full age or not); and (c) any reference in this section to an instrument executed by an infant shall be read and construed as including reference to an instrument executed by an infant jointly with some other person or persons (whether of full age or not); and (d) any reference in this section to an instrument shall include an instrument registrable under the provisions of the Real Property Act 1886. 24B—Abolition of doctrine of interesse termini (1) A leasehold estate or interest is capable of taking effect notwithstanding that the lessee has not entered into possession of the land subject to the lease. (2) This section applies to leasehold estates or interests whether created before or after the commencement of the Statutes Amendment (Property) Act 1980. 24C—Body corporate may hold property as joint tenant (1) Subject to subsection (2), a body corporate is capable of acquiring and holding real or personal property in joint tenancy. (2) The acquisition and holding of property by a body corporate in joint tenancy is subject to— (a) any limitations on the capacity of the body corporate to acquire or hold property in joint tenancy imposed by a statute or other instrument defining or affecting the capacities of the body corporate; and (b) any limitations on the capacity of the body corporate to acquire or hold property that apply whether the property is to be acquired or held in joint tenancy or not. (3) Where a body corporate is a joint tenant of property, the property devolves, on dissolution of the body corporate, on the other joint tenant. 24D—Capacities of corporations (1) A corporation sole established under an Act has, and will be taken always to have had— (a) perpetual succession and a common seal; and (b) the capacity to sue and be sued in the corporation's name; and (c) subject to any limitations imposed under an Act, all the powers of a natural person. (2) A right or liability that a corporation sole or corporation aggregate would have acquired or incurred but for the occurrence (before or after the commencement of this section) of a temporary vacancy in the office or offices of the corporation will be treated as having taken effect on the filling of the vacant office or offices as if the vacancy or vacancies had been filled before the right or liability was acquired or incurred. 25—Contingent remainders protected against the premature failure of a preceding estate A contingent remainder existing at any time after the commencement of this Act shall be capable of taking effect, notwithstanding the want of a particular estate of freehold to support it in the same manner as it would take effect if it were a contingent remainder of an equitable estate supported by an outstanding estate in fee simple. Part 3—General rules affecting contracts, conveyances, and other instruments 26—Contracts for sale of land to be in writing (1) No action shall be brought upon any contract for the sale or other disposition of land or of any interest in land, unless an 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 person thereunto by him lawfully authorised. (2) This section does not affect the law relating to part performance, or sale by the court. 27—Discharge of incumbrances by the Court on sales or exchanges (1) Where land subject to any incumbrance, whether immediately realisable or payable or not, is sold or exchanged by the court, or out of court, the court may, if it thinks fit, on the application of any party to the sale or exchange, direct or allow payment into court of such sum as is hereinafter mentioned, that is to say— (a) in the case of an annual sum charged on the land, or of a capital sum charged on a determinable interest in the land, the sum to be paid into court shall be of such amount as, when invested in Government securities, the court considers will be sufficient, by means of the dividends thereof, to keep down or otherwise provide for that charge; and (b) in any other case of capital money charged on the land, the sum to be paid into court shall be of an amount sufficient to meet the 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 or exchange, and give directions for the retention and investment of the money in court and for the payment or application of the income thereof. (3) The court may declare all other land (if any) affected by the incumbrance (besides the land sold or exchanged) to be freed from the incumbrance, and this power may be exercised either after or without notice to the incumbrancer, and notwithstanding that on a previous occasion an order, relating to the same incumbrance, has been made by the court which was confined to the land then sold or exchanged. (4) On any application under this section the court may, if it thinks fit, as respects any vendor or purchaser, dispense with the service of any notice which under this Act or otherwise would apart from this subsection be required to be served on the vendor or purchaser. (5) After notice served on the persons interested in or entitled to the money or fund in court, the court may direct payment or transfer thereof to the persons entitled to receive or give a discharge for the same on such terms as to delivering up of deeds or other documents or on such other terms as the court thinks fit, and generally may give directions respecting the application or distribution of the capital or income thereof. (6) This section shall apply to sales and exchanges, and to incumbrances whether created by statute or otherwise. 28—Conveyances to be by deed (1) All conveyances of land or of any interest therein shall be void for the purpose of conveying or creating a legal estate unless made by deed. (2) This section shall not apply to— (a) assents by a personal representative: (b) disclaimers made in accordance with the provisions of any 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: (g) conveyances taking effect by operation of law. 29—Instruments required to be in writing (1) Subject to the provisions hereinafter contained with respect to the creation of interests in land by parol— (a) no interest in land can be created or disposed of except by writing signed by the person creating or conveying the same, or by his agent thereunto lawfully authorised in writing, or by will, or by operation of law; (b) a declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by his will; (c) a disposition of an equitable interest or trust subsisting at the time of the disposition must be in writing signed by the person disposing of the same, or by his agent thereunto lawfully authorised in writing or by will. (2) This section shall not affect the creation or operation of resulting, implied, or constructive trusts. 30—Creation of interests in land by parol (1) All interests in land created by parol and not put in writing and signed by the persons so creating the same, or by their agents thereunto lawfully authorised in writing, shall have, notwithstanding any consideration having been given for the same, the force and effect of interests at will only. (2) Nothing in the preceding sections of this Act shall affect the creation by parol of leases taking effect in possession for a term not exceeding three years (whether or not the lessee is given power to extend the term) at the best rent which can be reasonably obtained without taking a fine. 31—Savings in regard to last two sections Nothing in the two last preceding sections shall— (a) invalidate dispositions by will; or (b) affect any interest validly created before the commencement of this Act; or (c) affect the right to acquire an interest in land by virtue of taking possession; or (d) affect the operation of the law relating to part performance. 32—Effect of possession of documents This Act shall not prejudicially affect the right or interest of any person arising out of or consequent on the possession by him of any documents relating to a legal estate in land, nor affect any question arising out of or consequent upon any omission to obtain or any other absence of possession by any person of any documents relating to a legal estate in land. 33—Interests of persons in possession This Act shall not prejudicially affect the interest of any person in possession or in actual occupation of land to which he may be entitled in right of such possession or occupation. 34—Persons taking who are not parties and as to indentures (1) A person may take an immediate or other interest in land or other property, or the benefit of any condition, right of entry, covenant, or agreement over or respecting land or other property, although he is not named as a party to the conveyance or other instrument. (2) A deed between parties, to effect its objects, shall have the effect of an indenture though not indented or expressed to be an indenture. 35—Conditions and certain covenants not implied (1) An exchange, a partition, or other conveyance of land made by deed shall not imply any condition in law. (2) The word "give" or "grant" shall not, in a deed, imply any covenant in law, save where otherwise provided by statute. 36—General words implied in conveyances (1) A conveyance of land shall be deemed to include and shall by virtue of this Act operate to convey, with the land, all buildings, erections, fixtures, commons, hedges, ditches, fences, ways, waters, 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 shall apply 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. 37—All estate clause implied (1) Every conveyance shall 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 shall apply 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. 38—Partial release of security from rent-charge A release from a rentcharge of part of the land charged therewith shall not extinguish the whole rentcharge, but shall operate only to bar the right to recover any part of the rentcharge out of the land released, without prejudice to the rights of any persons interested in the land remaining unreleased, and not concurring in or confirming the release. 39—Release of part of land affected from a judgment (1) A release from an execution of part of any land charged therewith shall not affect the validity of the execution as respects any land not specifically released. (2) This section shall operate without prejudice to the rights of any persons interested in the property remaining unreleased and not concurring in or confirming the release. 40—Conveyances by a person to self etc (1) Personal property, including chattels real, may be conveyed by a person to themselves jointly with another person by the like means by which it might be conveyed by the person to another person. (2) Freehold land, or a thing in action, may be conveyed by a person to themselves jointly with another person by the like means by which it might be conveyed by the person to another person. (3) A person may convey land or any other property to themselves, or to themselves and others. (4) Two or more persons (whether or not being trustees or personal representatives) may convey, and shall be deemed always to have been capable of conveying any property vested in them to any one or more of themselves in like manner as they could have conveyed such property to a third party: Provided that if the persons in whose favour the conveyance is made are, by reason of any fiduciary relationship or otherwise, precluded from validly carrying out the transaction, the conveyance shall be liable to be set aside. 41—Execution and attestation of deeds (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 executes a deed by affixation of the common seal of the body corporate to the deed in accordance with the rules governing the use of the common seal; (c) a deed may be executed on behalf of a party to a deed— (i) by an attorney acting in pursuance of an authority conferred by 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; (b) where the deed is executed by a person acting at the direction, and in the presence, of the 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 will be 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 execution of the instrument or from the nature of the instrument that the parties intended it to be a deed. 41AA—Execution and attestation of other instruments (1) A party may execute an instrument (not being a will)— (a) subject to a condition that the execution is not to be effective until the party gives (personally or by an agent) some further indication of the party's intention to be bound by the instrument; or (b) subject to some other condition on the fulfilment of which the execution is to become effective. (2) The conditional execution of an instrument may be expressed orally, in writing, or by conduct evincing an intention that the execution should be conditional. (3) Where an instrument is conditionally executed, then, subject to subsection (4) and any contrary intention that appears from the instrument— (a) the execution cannot be recalled; and (b) on the fulfilment of the condition, the execution takes effect— (i) from the time of execution; or (ii) if it appears from the instrument or the condition of execution that the execution is intended to take effect from some later time—from that later time. (4) Where an instrument is conditionally executed and the fulfilment of the condition is within the control of the party by whom the instrument was conditionally executed, then— (a) any party to the instrument may, without breach of obligation, recall execution of the instrument at any time prior to the fulfilment of the condition; and (b) on the fulfilment of the condition, the execution (if not previously recalled) takes effect— (i) from the time of fulfilment of the condition; or (ii) if it appears from the instrument or the condition of execution that the execution is intended to take effect from some later time—from that later time. (5) Notwithstanding subsections (3) and (4), where the conditional execution of an instrument is not expressed in the instrument itself, the party by whom the instrument was conditionally executed cannot rely on the condition to defeat the claim of— (a) another party who has acted on the instrument or relied on its execution without actual notice of the condition; or (b) a person claiming under any such party. (6) In any legal proceedings— (a) if the execution of an instrument is proved, the execution will be presumed, in the absence of proof to the contrary, to have been unconditional; and (b) if it appears from an instrument or evidence external to an instrument that the instrument was executed conditionally, it will be presumed, in the absence of proof to the contrary, that the condition of execution has been fulfilled. (7) The common law doctrine of escrow is abolished. 41A—Easements without dominant land to be validly created (1) It is lawful and it is to be taken to have been always lawful for— (a) an easement to be created or operate in favour of— (i) the Crown; or (ii) a public or local authority; or (iii) a body declared under this section, despite the fact that the easement is not appurtenant to any other land; (b) an easement to be made appurtenant or annexed to another easement. (2) The Governor may, by proclamation— (a) declare a body for the purposes of subsection (1)(a)(iii); (b) vary or revoke a proclamation under this subsection. 42—Covenants for title (1) In a conveyance there shall, in the several cases in this section mentioned, be deemed to be included, and there shall in those several cases, by virtue of this Act, be implied, a covenant to the effect in this section stated, by the person or by each person who conveys, as far as regards the subject-matter or share of subject-matter expressed to be conveyed by him, with the person, if one, to whom the conveyance is made, or with the persons jointly, if more than one, to whom the conveyance is made as joint tenants, or with each of the persons, if more than one, to whom the conveyance is made as tenants in common, that is to say: (a) in a conveyance for valuable consideration, other than a mortgage, a covenant by a person who conveys and is expressed to convey as beneficial owner in the terms set out in clause 1 of Schedule 2 to this Act; (b) in a conveyance of leasehold property for valuable consideration, other than a mortgage, a further covenant by a person who conveys and is expressed to convey as beneficial owner in the terms set out in clause 2 of Schedule 2 to this Act; (c) in a conveyance by way of mortgage a covenant by a person who conveys and is expressed to convey as beneficial owner in the terms set out in clause 3 of Schedule 2 to this Act; (d) in a conveyance by way of mortgage of leasehold property, a further covenant by a person who conveys and is expressed to convey as beneficial owner in the terms set out in clause 4 of Schedule 2 to this Act; (e) in a conveyance by way of settlement, a covenant by a person who conveys and is expressed to convey as settlor in the terms set out in clause 5 of Schedule 2 to this Act; (f) in any conveyance, a covenant by every person who conveys and is expressed to convey as trustee or mortgagee, or as personal representative of a deceased person, or as administrator, committee or other person empowered to act on behalf of a mentally incapacitated person, or under an order of the court, in the terms set out in clause 6 of Schedule 2 to this Act, which covenant shall be deemed to extend to every such person's own acts only, and may be implied in an assent by a personal representative in like manner as in a conveyance by deed. (2) Where in a conveyance it is expressed that by direction of a person expressed to direct as beneficial owner another person conveys, then, for the purposes of this section, the person giving the direction, whether he conveys and is expressed to convey as beneficial owner or not, shall be deemed to convey and to be expressed to convey as beneficial owner the subject-matter so conveyed by his direction; and a covenant on his part shall be implied accordingly. (4) Where in a conveyance a person conveying is not expressed to convey as beneficial owner, or as settlor, or as trustee, or as mortgagee, or as personal representative of a deceased person, or as administrator, committee or other person empowered to act on behalf of a mentally incapacitated person, or under an order of the court, or by direction of a person as beneficial owner, no covenant on the part of the person conveying shall be, by virtue of this section, implied in the conveyance. (5) In this section a conveyance does not include a demise by way of lease at a rent, but does include a charge, and convey has a corresponding meaning. (6) The benefit of a covenant implied as aforesaid shall be annexed and incident to, and shall go with, the estate or interest of the implied covenantee, and shall be capable 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. (7) A covenant implied as aforesaid may be varied or extended by a deed or an assent, and, as so varied or extended, shall, as far as may be, operate in the like manner, and with all the like incidents, effects, and consequences, as if such variations or extensions were directed in this section to be implied. Part 4—Mortgages 43—Realisation of equitable charges by the court Where an order for sale is made by the court in reference to an equitable mortgage on land the court may, in favour of a purchaser, make a vesting order conveying the land or may appoint a person to convey the land, or may create and vest in the mortgagee a legal estate in the land to enable him to carry out the sale as the case requires, in like manner as if the mortgage had been made by way of legal mortgage, but without prejudice to any incumbrance having priority to the equitable mortgage unless the incumbrancer consents to the sale. 44—Sale of mortgaged property in action for redemption or foreclosure (1) Any person entitled to redeem mortgaged property may have a judgment or order for sale instead of for redemption in an action brought by him either for redemption alone, or for sale alone, or for sale or redemption in the alternative. (2) In any action, whether for foreclosure, or for redemption, or for sale, or for the raising and payment in any manner of mortgage money, the court, on the request of the mortgagee, or of any person interested either in the mortgage money or in the right of redemption, and, notwithstanding that— (a) any other person dissents; or (b) the mortgagee or any person so interested does not appear in the action, and without allowing any time for redemption or for payment of any mortgage money, may, if it thinks fit, direct a sale of the mortgaged property, on such terms as it thinks fit, including the deposit in court of a reasonable sum fixed by the court to meet the expenses of sale and to secure performance of the terms. (3) But, in an action brought by a person interested in the right of redemption and seeking a sale, the court may, on the application of any defendant, direct the plaintiff to give such security for costs as the court thinks fit, and may give the conduct of the sale to any defendant, and may give such directions as it thinks fit respecting the costs of the defendants or any of them. (4) In any case within this section the court may, if it thinks fit, direct a sale without previously determining the priorities of incumbrancers. (5) In this section— mortgaged property shall include the estate or interest which a mortgagee would have had power to convey if the statutory power of sale were applicable. (6) For the purposes of this section the court may, in favour of a purchaser, make a vesting order conveying the mortgaged property, or appoint a person to do so, subject or not to any incumbrance, as the court thinks fit; or, in the case of an equitable mortgage, may create and vest in the mortgagee a legal estate to enable him to carry out the sale in like manner as if the mortgage had been made by way of legal mortgage. 45—Obligation to transfer instead of reconveying (1) Where a mortgagor is entitled to redeem, then subject to compliance with the terms on compliance with which he would be entitled to require a reconveyance or surrender, or in the case of registered land a transfer of the mortgage, he shall be entitled to require the mortgagee, instead of reconveying or surrendering, to assign the mortgage debt and convey the mortgaged property, or in the case of registered land to transfer the mortgage, to any third person, as the mortgagor directs; and the mortgagee shall be bound to assign, convey, or transfer accordingly. (2) The rights conferred by this section shall belong to and shall 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 shall take effect notwithstanding any stipulation to the contrary. (4) The foregoing provisions of this section do not apply in the case of a mortgagee being or having been in possession. 46—Vesting order in place of conveyance by devisee of mortgagee Where a mortgagee of land has died without having entered into possession or into the receipt of the rents and profits thereof, and the money due in respect of the mortgage has been paid to a person entitled to receive the same, or such person consents to an order for the reconveyance of the land, the court may make an order vesting the land in such person or persons in such manner and for such estate as the court may direct in any of the following cases, namely: (a) Where the representative or devisee of the mortgagee is out of the jurisdiction of the court, or cannot be found: and (b) Where the representative or devisee of the mortgagee, on demand made by or on behalf of a person entitled to require a conveyance of the land, has stated in writing that he will not convey the same, or does not convey the same for twenty-eight days next after a proper instrument conveying the land has been tendered to him by or on behalf of the person so entitled: and (c) Where it is uncertain which of several devisees of the mortgagee, was the survivor: and (d) Where it is uncertain as to the survivor of several devisees of the mortgagee, or as to the representative of the mortgagee, whether he is living or dead: and (e) Where there is no representative of a mortgagee who has died intestate as to the land, or where the mortgagee has died and it is uncertain who is his representative or devisee. 47—Powers incident to estate or interest of mortgagee (1) A mortgagee, where the mortgage is made by deed, shall, by virtue of this Act, and in the case of registered land by virtue of the Real Property Act 1886 and 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) A power, when the mortgage money has become due, to sell, or to concur with any other person in selling, the mortgaged property, or any part thereof, either subject to prior charges or not, and either together or in lots, by public auction or by private contract, and for a sum payable either in one sum or by instalments, 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 re-sell, without being answerable for any loss occasioned thereby, with power to make such roads, streets, and passages and grant such easements of right of way or drainage over the same as the circumstances may require and he thinks fit; and (b) A power, 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 property which or an estate or interest wherein is mortgaged, and the premiums paid for any such insurance shall be a charge on the mortgaged property or estate or interest, in addition to the mortgage money, and with the same priority, and with interest at the same rate, as the mortgage money; and (c) A power, when the mortgage money has become due, to appoint a receiver of the income of the mortgaged property, or any part thereof; or, if the mortgaged property consists of an interest in income, or of a rent charge or an annual or other periodical sum, a receiver of that property or any part thereof. (2) The power of sale aforesaid shall include the following powers is incident thereto, namely: (a) A power to impose or reserve or make binding, as far as the law permits, by covenant, condition, or otherwise, on the unsold part of the mortgaged property or any part thereof, or on the purchaser and any property sold, any restriction or reservation with respect to building on or other user of land, or with respect to mines and minerals, or for the purpose of the more beneficial working thereof, or with respect to any other thing: (b) A power to sell the mortgaged property, or any part thereof, or all or any mines and minerals apart from the surface— (i) With or without a grant or reservation of rights of way, rights of water, easements, rights and privileges for or connected with building or other purposes in relation to the property remaining unsold or any part thereof, or to any property sold; and (ii) With or without an exception or reservation of all or any of the mines and minerals in or under the mortgaged property, and with or without a grant or reservation of powers of working, wayleaves, or rights-of-way, rights of water, and drainage and other powers, easements, rights and privileges for or connected with mining purposes in relation to the property remaining unsold or any part thereof, or to any property sold; and (iii) With or without covenants by the purchaser to expend money on the land sold. (3) The provisions of this Act relating to the foregoing powers, comprised either in this section, or in any other section regulating the exercise of those powers, may be varied or extended by the mortgage deed, and, as so varied or extended, shall, as far as may be, operate in the like manner and with all the like incidents, effects, and consequences as if such variations or extensions were contained in this Act. (4) This section shall apply 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. 48—Regulation of exercise of power of sale A mortgagee shall not exercise the power of sale conferred by this Act unless and until— (a) notice requiring payment of the mortgage money has been served on the mortgagor or one of two or more mortgagors, and default has been made in payment of the mortgage money, or of part thereof, for one month or any less time provided by the mortgage after such service; or (b) some interest under the mortgage is in arrear and unpaid for one month after becoming due; or (c) there has been a breach of some provision contained in the mortgage deed or in this Act, and on the part of the mortgagor, or of some person concurring in making the mortgage, to be observed or performed, other than and besides a covenant for payment of the mortgage money or interest thereon. 49—Conveyance on sale (1) A mortgagee exercising the power of sale conferred by this Act shall have power to convey or to transfer, as the case may be, the property sold, for such estate and interest therein as he is by this Act authorised to sell or convey, or as may be the subject of the mortgage, freed from all estates, interests, and rights to which the mortgage has priority, but subject to all estates, interests, and rights which have priority to the mortgage. (2) Where a conveyance or transfer is made in exercise of the power of sale conferred by this Act, the title of the purchaser shall not be impeachable on the ground— (a) that no case had arisen to authorise the sale; or (b) that due notice was not given; or (c) that permission of the court, when so required, was not obtained; or (d) that the power was otherwise improperly or irregularly exercised; and a purchaser shall not, either before or on conveyance or transfer, be concerned to see or inquire whether a case has arisen to authorise the sale, or due notice has been given, or the power is otherwise properly and regularly exercised; but any person damnified by an unauthorised, or improper, or irregular exercise of the power shall have his remedy in damages against the person exercising the power. (3) A conveyance or transfer on sale by a mortgagee shall be deemed to have been made in exercise of the power of sale conferred by this Act or by the Real Property Act 1886 unless a contrary intention appears. 50—Application of proceeds of sale The money which is in fact received by the mortgagee, arising from the sale, after discharge of prior incumbrances to which the sale is not made subject (if any) or after payment into court under this Act of a sum to meet any prior incumbrance, shall be held by him in trust to be applied by him, first, in payment of all costs, charges, and expenses properly incurred by him as incident to the sale or any attempted sale, or otherwise; and secondly, in discharge of the mortgage money, interest, and costs, and other money (if any) due under the mortgage; and the residue of the money so received shall be paid to the person entitled to the mortgaged property, or authorised to give receipts for the proceeds of the sale thereof. 51—Provisions as to exercise of power of sale (1) The power of sale conferred by this Act may be exercised by any person for the time being entitled to receive and give a discharge for the mortgage money. (2) The power of sale conferred by this Act shall not affect the right of foreclosure. (3) The mortgagee shall not be answerable for any involuntary loss happening in or about the exercise or execution of the power of sale conferred by this Act, or of any trust connected therewith, or of any power or provision contained in the mortgage deed. (4) At any time after the power of sale conferred by this Act has become exercisable, the person entitled to exercise the power may demand and recover from any person, other than a person having in the mortgaged property an estate, interest or right in priority to the mortgage, all the deeds and documents relating to the property, or to the title thereto, which a purchaser under the power of sale would be entitled to demand and recover from him. 52—Mortgagee's receipts, discharges etc (1) The receipt in writing of a mortgagee shall be a sufficient discharge for any money arising under the power of sale conferred by this Act, or for any money or securities comprised in his mortgage, or arising thereunder; and a person paying or transferring the same to the mortgagee shall not be concerned to inquire whether any money remains due under the mortgage or as to the application of the money or securities so paid or transferred. (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 o