Tasmania: Conveyancing and Law of Property Act 1884 (Tas)

Conveyancing and Law of Property Act 1884 An Act for simplifying and improving the practice of conveyancing; and for vesting in trustees, mortgagees, and others various powers commonly conferred by provisions inserted in settlements, mortgages, wills, and other instruments; and for amending in various particulars the law of property [Royal Assent 29 October 1883] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART I - Preliminary 1. Short title and commencement (1) This Act may be cited as the Conveyancing and Law of Property Act 1884 . (2) This Act shall commence on 1st January 1884. 2. Interpretation In this Act, unless the contrary intention appears – bankruptcy includes liquidation by arrangement, and any other act or proceeding having, under any Act, effects or results similar to those of bankruptcy; building purposes include the erecting and the improving of, and the adding to, and the repairing of buildings; and a building lease is a lease for building purposes or purposes connected therewith; conveyance includes assignment, appointment, lease, settlement, and other assurance, made by deed, on a sale, mortgage, demise, or settlement of any property, or on any other dealing with or for any property; Court means the Supreme Court; covenant in gross means a covenant created under section 90AB ; incumbrance includes a mortgage in fee, or for a less estate, and a trust for securing money, and a lien, and a charge of a portion, annuity, or other capital or annual sum; and incumbrancer includes every person entitled to the benefit of an incumbrance, or to require payment or discharge thereof; instrument includes deed, will, schedule of easements under the Local Government (Building and Miscellaneous Provisions) Act 1993 , and Act; land includes land of any tenure, and tenements and hereditaments corporeal or incorporeal, and houses and other buildings, also an undivided share in land; in relation to land income includes rents and profits, and possession includes receipt of income; mortgage includes any charge on any property for securing money or money's worth; and mortgage money means money or money's worth, secured by a mortgage; and mortgagor includes any person from time to time deriving title under the original mortgagor, or entitled to redeem a mortgage, according to his estate, interest, or right in the mortgaged property; and mortgagee includes any person from time to time deriving title under the original mortgagee; and mortgagee in possession is, for the purposes of this Act, a mortgagee who, in right of the mortgage, has entered into and is in possession of the mortgaged property; property includes real and personal property, and any estate or interest in any property real or personal, and any debt, and any thing in action, and any other right or interest; purchaser includes a lessee or mortgagee, and an intending purchaser, lessee, or mortgagee, or other person who, for valuable consideration, takes or deals for any property; but sale means only a sale properly so called; Register has the same meaning as it has in the Land Titles Act 1980 ; rent includes yearly or other rent, toll, duty, royalty, or other reservation, by the hectare, the tonne, or otherwise; and fine includes premium or fore-gift, and any payment, consideration, or benefit in the nature of a fine, premium, or fore-gift; securities include Government debentures, Treasury bills, and shares; timber includes all indigenous or foreign trees, the wood of which is ordinarily used for building or manufacturing purposes, and the bark of such trees, but does not include brushwood, scrub, or underwood. PART II - Sales and Other Transactions 3. Conditions applicable to all contracts of sale of lands (1) . . . . . . . . (2) A purchaser of any property shall not require the production, or any abstract or copy of any deed, will, or other document dated or made before the time prescribed by law, or stipulated, for commencement of the title, even though the same creates a power subsequently exercised by an instrument abstracted in the abstract furnished to the purchaser; nor shall he require any information, or make any requisition, objection, or inquiry with respect to any such deed, will, or document, or the title prior to that time, notwithstanding that any such deed, will, or other document, or that prior title, is recited, covenanted to be produced, or noticed; and he shall assume, unless the contrary appears, that the recitals contained in the abstracted instruments of any deed, will, or other document forming part of that prior title, are correct, and give all the material contents of the deed, will, or other document so recited, and that every document so recited was duly executed by all necessary parties, and perfected, if and as required, by acknowledgment, enrolment, or otherwise. (3) Where land sold is held by lease (not including under-lease), the purchaser shall assume, unless the contrary appears, that the lease was duly granted; and on production of the receipt for the last payment due for rent under the lease before the date of actual completion of the purchase, he shall assume, unless the contrary appears, that all the covenants and provisions of the lease have been duly performed and observed up to the date of actual completion of the purchase. (4) Where land sold is held by under-lease, the purchaser shall assume, unless the contrary appears, that the under-lease and every superior lease were duly granted; and on production of the receipt for the last payment due for rent under the under-lease before the date of actual completion of the purchase he shall assume, unless the contrary appears, that all the covenants and provisions of the under-lease have been duly performed and observed up to the date of actual completion of the purchase, and further that all rent due under every superior lease, and all the covenants and provisions of every superior lease, have been paid and duly performed and observed up to that date. (5) On a sale of any property, the expenses of the production and inspection of all Acts, records, deeds, wills, probates, letters of administration, and other documents, not in the vendor's possession, and the expenses of all journeys incidental to such production or inspection, and the expenses of searching for, procuring, making, verifying, and producing all certificates, declarations, evidences, and information not in the vendor's possession, and all attested, stamped, office, or other copies or abstracts of or extracts from any Acts or other documents aforesaid, not in the vendor's possession, if any such production, inspection, journey, search, procuring, making, or verifying is required by a purchaser, either for verification of the abstract, or for any other purpose, shall be borne by the purchaser who requires the same; and where the vendor retains possession of any document, the expenses of making any copy thereof, attested or unattested, which a purchaser requires to be delivered to him, shall be borne by that purchaser. (6) On a sale of any property in lots, a purchaser of two or more lots held wholly or partly under the same title shall not have a right to more than one abstract of the common title, except at his own expense. (7) This section applies only to titles and purchasers on sales properly so called, notwithstanding any interpretation in this Act. (8) This section applies only if and as far as a contrary intention is not expressed in the contract of sale, and shall have effect subject to the terms of the contract and to the provisions therein contained. (9) Nothing in this section shall be construed as binding a purchaser to complete his purchase in any case where, on a contract made independently of this section, and containing stipulations similar to the provisions of this section, or any of them, specific performance of the contract would not be enforced against him by the Court. 4. Provision by Court for incumbrances and giving effect to sale freed therefrom (1) Where land subject to any incumbrance, whether immediately payable or not, is sold by the Court, or out of Court, the Court may, if it thinks fit, on the application of any party to the sale, direct or allow payment into Court, in case of an annual sum charged on the land, or of a capital sum charged on a determinable interest in the land, of such amount as, when invested in Government securities, the Court considers will be sufficient, by means of the dividends thereof, to keep down or otherwise provide for that charge, and in any other case of capital money charged on the land, of the amount sufficient to meet the incumbrance and any interest due thereon; but in either case there shall also be paid into Court such additional amount as the Court considers will be sufficient to meet the contingency of further costs, expenses, and interest, and any other contingency except depreciation of investments, not exceeding one-tenth part of the original amount to be paid in unless the Court for special reason thinks fit to require a larger additional amount. (2) Thereupon the Court may, if it thinks fit, and either after or without any notice to the incumbrancer, as the Court thinks fit, declare the land to be freed from the incumbrance, and make any order for conveyance or vesting order proper for giving effect to the sale, and give directions for the retention and investment of the money in Court. (3) After notice served on the persons interested in or entitled to the money or fund in Court, the Court may direct payment or transfer thereof to the persons entitled to receive or give a discharge for the same, and generally may give directions respecting the application or distribution of the capital or income thereof. 5. Constructive notice: Restriction on (1) A purchaser shall not be prejudicially affected by notice of any instrument, fact, or thing, unless – (a) it is within his own knowledge, or would have come to his knowledge if such inquiries and inspections had been made as ought reasonably to have been made by him; or (b) in the same transaction with respect to which a question of notice to the purchaser arises, it has come to the knowledge of his counsel, as such, or of his Australian legal practitioner, or other agent, as such, or would have come to the knowledge of his Australian legal practitioner, or other agent, as such, if such inquiries and inspections had been made as ought reasonably to have been made by the Australian legal practitioner or other agent. (1A) For the purposes of this section, a purchaser is not bound to inquire concerning, or to inspect – (a) the register kept pursuant to section 265 of the Corporations Act; or (b) the copies of instruments or the register of charges required by section 271 of the Corporations Act to be kept by a company. (2) This section shall not exempt a purchaser from any liability under, or any obligation to perform or observe, any covenant, condition, provision, or restriction contained in any instrument under which his title is derived, mediately or immediately; and such liability or obligation may be enforced in the same manner and to the same extent as if this section had not been enacted. (3) A purchaser shall not by reason of anything in this section be affected by notice in any case where he would not have been so affected if this section had not been enacted. 6. What is included in a conveyance of land (1) A conveyance of land shall be deemed to include and shall by virtue of this Act operate to convey, with the land, all buildings, erections, fixtures, hedges, ditches, fences, ways, waters, watercourses, liberties, privileges, easements, rights, and advantages whatsoever appertaining or reputed to appertain to the land, or any part thereof, or at the time of conveyance demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land or any part thereof. (2) A conveyance of land having houses or other buildings thereon shall be deemed to include, and shall by virtue of this Act operate to convey with the land, houses, or other buildings, all outhouses, erections, fixtures, cellars, areas, courts, courtyards, cisterns, sewers, gutters, drains, ways, passages, lights, watercourses, liberties, privileges, easements, rights, and advantages whatsoever appertaining or reputed to appertain to the land, houses, or other buildings conveyed, or any of them, or any part thereof, or at the time of conveyance demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land, houses, or other buildings conveyed, or any of them, or any part thereof. (3) This section applies only if and as far as a contrary intention is not expressed in the conveyance, and shall have effect subject to the terms of the conveyance and to the provisions therein contained. (4) This section shall not be construed as giving to any person a better title to any property, right, or thing in this section mentioned than the title which the conveyance gives to him to the land expressed to be conveyed, or as conveying to him any property, right, or thing in this section mentioned further or otherwise than as the same could have been conveyed to him by the conveying parties. (5) This section applies only to conveyances made after the commencement of this Act. 7. Covenants for title implied in certain cases (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, the following covenant by a person who conveys as beneficial owner, namely: That the person who so conveys has, with the concurrence of every other person, if any, conveying by his direction, full power to convey the subject-matter expressed to be conveyed, subject as, if so expressed, and in the manner in which it is expressed to be conveyed, and that that subject-matter shall remain to and be quietly entered upon, received, and held, occupied, enjoyed, and taken, by the person to whom the conveyance is expressed to be made, and any person deriving title under him, and the benefit thereof shall be received and taken accordingly without any lawful interruption or disturbance by the person who so conveys, or any person conveying by his direction, or rightfully claiming, or to claim, by, through, under, or in trust for the person who so conveys, or any person conveying by his direction, or by, through, or under any one not being a person claiming in respect of an estate or interest subject whereto the conveyance is expressly made, through whom the person who so conveys derives title; and that, freed and discharged from, or otherwise by the person who so conveys sufficiently indemnified against, all such estates, incumbrances, claims, and demands other than those subject to which the conveyance is expressly made, as either before or after the date of the conveyance have been or shall be made, occasioned, or suffered by that person or by any person conveying by his direction, or by any person rightfully claiming by, through, under, or in trust for the person who so conveys, or by, through, or under any person conveying by his direction, or by, through, or under any one through whom the person who so conveys derives title; and further, that the person who so conveys, and any person conveying by his direction, and every other person having or rightfully claiming any estate or interest in the subject-matter of conveyance, other than an estate or interest subject whereto the conveyance is expressly made, by, through, under, or in trust for the person who so conveys, or by, through, or under any person conveying by his direction, or by, through, or under any one through whom the person who so conveys derives title, will from time to time and at all times after the date of the conveyance, on the request and at the cost of any person to whom the conveyance is expressed to be made, or of any person deriving title under him, execute and do all such lawful assurances and things for further or more perfectly assuring the subject-matter of the conveyance to the person to whom the conveyance is made, and to those deriving title under him, subject as, if so expressed, and in the manner in which the conveyance is expressed to be made, as by him or them or any of them shall be reasonably required. (b) In a conveyance of leasehold property for valuable consideration other than a mortgage, the following further covenant by a person who conveys as beneficial owner, namely: That, notwithstanding anything by the person who so conveys, or any one through whom he derives title made, done, executed, or omitted, or knowingly suffered, the lease or grant creating the term or estate for which the land is conveyed is, at the time of conveyance, a good, valid, and effectual lease or grant of the property conveyed, and is in full force, unforfeited, unsurrendered, and in no wise become void or voidable, and that, notwithstanding anything as aforesaid, all the rents reserved by, and all the covenants, conditions, and agreements contained in the lease or grant, and on the part of the lessee or grantee and the persons deriving title under him to be paid, observed, and performed, have been paid, observed, and performed up to the time of conveyance. (c) In a conveyance by way of mortgage, the following covenant by a person who conveys as beneficial owner, namely: That the person who so conveys has, with the concurrence of every other person, if any, conveying by his direction, full power to convey the subject-matter expressed to be conveyed by him, subject as, if so expressed, and in the manner in which it is expressed to be conveyed; and also that, if default is made in payment of the money intended to be secured by the conveyance, or any interest thereon, or any part of that money or interest, contrary to any provision in the conveyance, it shall be lawful for the person to whom the conveyance is expressed to be made, and the persons deriving title under him, to enter into and upon, or receive, and thenceforth quietly hold, occupy, and enjoy or take and have the subject-matter expressed to be conveyed, or any part thereof, without any lawful interruption or disturbance by the person who so conveys, or any person conveying by his direction, or any other person not being a person claiming in respect of an estate or interest subject whereto the conveyance is expressly made; and that, freed and discharged from, or otherwise by the person who so conveys sufficiently indemnified against, all estates, incumbrances, claims, and demands whatever, other than those subject whereto the conveyance is expressly made; and further, that the person who so conveys, and every person conveying by his direction, and every person deriving title under any of them, and every other person having or rightfully claiming any estate of interest in the subject-matter of conveyance, or any part thereof, other than an estate or interest subject whereto the conveyance is expressly made, will from time to time and at all times, on the request of any person to whom the conveyance is expressed to be made, or of any person deriving title under him, but, as long as any right of redemption exists under the conveyance, at the cost of the person so conveying, or of those deriving title under him, and afterwards at the cost of the person making the request, execute and do all such lawful assurances and things for further or more perfectly assuring the subject-matter of conveyance and every part thereof to the person to whom the conveyance is made, and to those deriving title under him, subject as, if so expressed, and in the manner in which the conveyance is expressed to be made, as by him or them or any of them shall be reasonably required. (d) In a conveyance by way of mortgage of leasehold property, the following further covenant by a person who conveys as beneficial owner, namely: That the lease or grant creating the term or estate for which the land is held is, at the time of conveyance, a good, valid, and effectual lease or grant of the land conveyed, and is in full force, unforfeited, and unsurrendered, and in nowise become void or voidable, and that all the rents reserved by, and all the covenants, conditions, and agreements contained in, the lease or grant, and on the part of the lessee or grantee and the persons deriving title under him to be paid, observed, and performed, have been paid, observed, and performed up to the time of conveyance; and also that the person so conveying, or the persons deriving title under him, will at all times, as long as any money remains on the security of the conveyance, pay, observe, and perform, or cause to be paid, observed, and performed, all the rents reserved by, and all the covenants, conditions, and agreements contained in the lease or grant, and on the part of the lessee or grantee and the persons deriving title under him to be paid, observed, and performed, and will keep the person to whom the conveyance is made, and those deriving title under him, indemnified against all actions, proceedings, costs, charges, damages, claims, and demands, if any, to be incurred or sustained by him or them by reason of the non-payment of such rent or the non-observance or non-performance of such covenants, conditions, and agreements, or any of them. (e) In a conveyance by way of settlement, the following covenant by a person who conveys as settlor, namely: That the person so conveying, and every person deriving title under him by deed or act or operation of law in his lifetime subsequent to that conveyance, or by testamentary disposition or devolution in law, on his death, will, from time to time, and at all times after the date of that conveyance, at the request and cost of any person deriving title thereunder, execute and do all such lawful assurances and things for further or more perfectly assuring the subject-matter of the conveyance to the persons to whom the conveyance is made and those deriving title under them, subject as, if so expressed, and in the manner in which the conveyance is expressed to be made, as by them or any of them shall be reasonably required. (f) In any conveyance, the following covenant by every person who conveys as trustee or mortgagee, or as personal representative of a deceased person or as committee of a lunatic so found by inquisition or under an order of the Court, which covenant shall be deemed to extend to every such person's own acts only, namely: That the person so conveying has not executed or done, or knowingly suffered, or been party or privy to, any deed or thing whereby or by means whereof the subject-matter of the conveyance, or any part thereof, is or may be impeached, charged, affected, or incumbered in title, estate, or otherwise, or whereby or by means whereof the person who so conveys is in anywise hindered from conveying the subject-matter of the conveyance, or any part thereof, in the manner in which it is expressed to be conveyed. (2) Where in a conveyance it is expressed that by direction of a person who directs as beneficial owner another person conveys, then, within this section, the person giving the direction, whether he conveys as beneficial owner or not, shall be deemed to convey as beneficial owner the subject-matter so conveyed by his direction; and a covenant on his part shall be implied accordingly. (3) Where in a conveyance a person conveying does not convey as beneficial owner, or as settlor, or as trustee, or as mortgagee, or as personal representative of a deceased person, or as committee of a lunatic so found by inquisition or under an order of the Court, or by direction of a person as beneficial owner, no covenant on the part of the person conveying shall be, by virtue of this section, implied in the conveyance. (4) The benefit of a covenant implied as aforesaid shall be annexed and incident to and shall go with the estate or interest of the implied covenantee, and shall be capable of being enforced by every person in whom that estate or interest is, for the whole or any part thereof, from time to time vested. (4A) For the purposes of this section, a person who is expressed to convey or direct as a person having a specified capacity mentioned in this section shall be deemed to convey or direct as such a person, whether or not he is in fact such a person, and to be liable on the covenants implied by this section even if he is not such a person. (5) A covenant implied as aforesaid may be varied or extended by deed, and as so varied or extended shall, as far as may be, operate in the like manner, and with all the like incidents, effects, and consequences, as if such variations or extensions were directed in this section to be implied. (6) This section applies only to conveyances made after the commencement of this Act. 8. Rights of purchaser regarding execution On a sale, the purchaser shall not be entitled to require that the conveyance to him be executed in his presence, or in that of his Australian legal practitioner, as such; but shall be entitled to have at his own cost the execution of the conveyance attested by some person appointed by him, who may, if he thinks fit, be his Australian legal practitioner. 9. Acknowledgment of right to production: Undertaking for safe custody of documents (1) Where a person retains possession of documents, and gives to another an acknowledgment in writing of the right of that other to production of those documents, and to delivery of copies thereof (in this section called an acknowledgment), that acknowledgment shall have effect as in this section provided. (2) An acknowledgment shall bind the documents to which it relates in the possession or under the control of the person who retains them, and in the possession or under the control of every other person having possession or control thereof from time to time, but shall bind each individual possessor or person as long only as he has possession or control thereof; and every person so having possession or control from time to time shall be bound specifically to perform the obligations imposed under this section by an acknowledgment, unless prevented from so doing by fire or other inevitable accident. (3) The obligations imposed under this section by an acknowledgment are to be performed at the request in writing of the person to whom an acknowledgment is given, or of any person, not being a lessee at a rent, having or claiming any estate, interest, or right through or under that person, or otherwise becoming through or under that person interested in or affected by the terms of any document to which the acknowledgment relates. (4) The obligations imposed under this section by an acknowledgment are – (a) an obligation to produce the documents or any of them at all reasonable times for the purpose of inspection, and of comparison with abstracts or copies thereof, by the person entitled to request production or by any one by him authorized in writing; (b) an obligation to produce the documents or any of them at any trial, hearing, or examination in any court, or in the execution of any commission, or elsewhere in Tasmania, on any occasion on which production may properly be required, for proving or supporting the title or claim of the person entitled to request production, or for any other purpose relative to that title or claim; and (c) an obligation to deliver to the person entitled to request the same true copies, or extracts, attested or unattested, of or from the documents or any of them. (5) All costs and expenses of or incidental to the specific performance of any obligation imposed under this section by an acknowledgment shall be paid by the person requesting performance. (6) An acknowledgment shall not confer any right to damages for loss or destruction of, or injury to, the documents to which it relates, from whatever cause arising. (7) Any person claiming to be entitled to the benefit of an acknowledgment may apply to the Court for an order directing the production of the documents to which it relates, or any of them, or the delivery of copies of or extracts from those documents or any of them to him, or some person on his behalf; and the Court may, if it thinks fit, order production, or production and delivery, accordingly, and may give directions respecting the time, place, terms, and mode of production or delivery, and may make such order as it thinks fit respecting the costs of the application, or any other matter connected with the application. (8) An acknowledgment shall by virtue of this Act satisfy any liability to give a covenant for production and delivery of copies of or extracts from documents. (9) Where a person retains possession of documents and gives to another an undertaking in writing for safe custody thereof, that undertaking shall impose on the person giving it, and on every person having possession or control of the documents from time to time, but on each individual possessor or person as long only as he has possession or control thereof, an obligation to keep the documents safe, whole, uncancelled, and undefaced, unless prevented from so doing by fire or other inevitable accident. (10) Any person claiming to be entitled to the benefit of such an undertaking may apply to the Court to assess damages for any loss, destruction of, or injury to the documents or any of them, and the Court may, if it thinks fit, direct an inquiry respecting the amount of damages, and order payment thereof by the person liable, and may make such order as it thinks fit respecting the costs of the application, or any other matter connected with the application. (11) An undertaking for safe custody of documents shall, by virtue of this Act, satisfy any liability to give a covenant for safe custody of documents. (12) The rights conferred by an acknowledgment or an undertaking under this section shall be in addition to all such other rights relative to the production, or inspection, or the obtaining of copies of documents as are not, by virtue of this Act, satisfied by the giving of the acknowledgment or undertaking, and shall have effect subject to the terms of the acknowledgment or undertaking, and to any provisions therein contained. (13) This section applies only if and as far as a contrary intention is not expressed in the acknowledgment or undertaking. (14) This section applies only to an acknowledgment or undertaking given, or a liability respecting documents incurred, after the commencement of this Act. 9A. Revival of easements, &c., on disunity of seisin (1) Where – (a) the seisin in fee simple is united of two parcels of land of which there was theretofore separate seisin in fee simple; and (b) over or upon one of those parcels any easement or restriction then existed for the benefit of the other – the provisions of this section apply when the seisin of the two parcels is to be disunited in fee simple. (2) There shall be implied, unless the contrary intention appears – (a) in any contract of sale of either parcel which leads to the disunity a provision that it is sold – (i) with all such rights and advantages as belonged to it; and (ii) with all such burdens and disadvantages as it was subject to – when it belonged to the predecessor in title of the person in whom seisin was united as mention in subsection (1) ; and (b) in the conveyance of either parcel which effects that disunity – (i) such grants and reservations as will create afresh the easements; and (ii) such covenants, conditions, and declarations of trust as will renew the restrictions – to which the other parcel was subject for its benefit or it was subject for the other parcel's benefit, when it belonged to that predecessor. PART III - Leases 10. Rent and benefit of lessee's covenants run with reversion (1) Rent reserved by a lease, and the benefit of every covenant or provision therein contained, having reference to the subject-matter thereof, and on the lessee's part to be observed or performed, and every condition of re-entry and other condition therein contained, shall be annexed and incident to and shall go with the reversionary estate in the land, or in any part thereof, immediately expectant on the term granted by the lease, notwithstanding severance of that reversionary estate, and shall be capable of being recovered, received, enforced, and taken advantage of by the person from time to time entitled, subject to the term, to the income of the whole or any part, as the case may require, of the land leased. (2) This section applies only to leases made after the commencement of this Act. 11. Obligation of lessor's covenants runs with reversion (1) The obligation of a covenant entered into by a lessor with reference to the subject-matter of the lease shall, if and as far as the lessor has power to bind the reversionary estate immediately expectant on the term granted by the lease, be annexed and incident to and shall go with that reversionary estate, or the several parts thereof, notwithstanding severance of that reversionary estate, and may be taken advantage of and enforced by the person in whom the term is from time to time vested by conveyance, devolution in law, or otherwise; and, if and as far as the lessor has power to bind the person from time to time entitled to that reversionary estate, the obligation aforesaid may be taken advantage of and enforced against any person so entitled. (2) This section applies only to leases made after the commencement of this Act. 11A. Provisions as to attornments by tenants (1) Where land is subject to a lease – (a) the conveyance of a reversion in the land expectant on the determination of the lease; or (b) the creation or conveyance of a rent-charge to issue or issuing out of the land – shall be valid without any attornment of the lessee. (2) Nothing in subsection (1) – (a) affects the validity of any payment of rent by the lessee to the person making the conveyance or grant before notice of the conveyance or grant is given to him by the person entitled thereunder; or (b) renders the lessee liable for any breach of covenant to pay rent, on account of his failure to pay rent to the person entitled under the conveyance or grant before such notice is given to the lessee. (3) An attornment by the lessee in respect of any land to a person claiming to be entitled to the interest in the land of the lessor, if made without the consent of the lessor is void. (4) Subsection (3) does not apply to an attornment – (a) made pursuant to a judgment of a court of competent jurisdiction; (b) to a mortgagee, by a lessee holding under a lease from the mortgagor where the right of redemption is barred; or (c) to any person rightfully deriving title under the lessor. (5) An attornment by a lease of land to a stranger claiming title to the lessor's estate is void without the lessor's consent. (6) Sections 9 and 10 of the Imperial Act referred to either as the fourth year of Queen Anne, Chapter 3, and section 11 of the Imperial Act of the eleventh year of King George the Second, Chapter 19, are repealed so far as they apply to this State. 12. Apportionment of conditions on severance, &c., of reversion Notwithstanding the severance by conveyance, surrender, or otherwise, of the reversionary estate in any land comprised in a lease, and notwithstanding the avoidance or cesser in any other manner of the term granted by a lease as to part only of the land comprised therein, every condition or right of re-entry, and every other condition, contained in the lease, shall be apportioned, and shall remain annexed to the severed parts of the reversionary estate as severed, and shall be in force with respect to the term whereon each severed part is reversionary, or the term in any land which has not been surrendered, or as to which the term has not been avoided or has not otherwise ceased, in like manner as if the land comprised in each severed part, or the land as to which the term remains subsisting, as the case may be, had alone originally been comprised in the lease. 13. . . . . . . . . 14. . . . . . . . . 15. Restrictions on and relief against forfeiture of leases (1) A right of re-entry or forfeiture under any proviso or stipulation in a lease, for a breach of any covenant or condition in the lease, shall not be enforceable, by action or otherwise, unless and until the lessor serves on the lessee a notice specifying the particular breach complained of and, if the breach is capable of remedy, requiring the lessee to remedy the breach, and in any case requiring the lessee to make compensation in money for the breach, and the lessee fails, within a reasonable time thereafter, to remedy the breach, if it is capable of remedy, and to make reasonable compensation in money, to the satisfaction of the lessor, for the breach. (2) Where a lessor is proceeding, by action or otherwise, to enforce such a right of re-entry or forfeiture, the lessee may, in the lessor's action, if any, or in any action brought by himself, apply to the Court for relief; and the Court may grant or refuse relief as the Court, having regard to the proceedings and conduct of the parties under the foregoing provisions of this section, and to all the other circumstances, thinks fit; and in case of relief may grant it on such terms, if any, as to costs, expenses, damages, compensation, penalty, or otherwise, including the granting of an injunction to restrain any like breach in the future, as the Court, in the circumstances of each case, thinks fit. (3) For the purposes of this section a lease includes an original or derivative under-lease, also a grant at a fee farm rent, or securing a rent by condition; and a lessee includes an original or derivative under-lessee, and the executors, administrators, and assigns of a lessee, also a grantee under such a grant as aforesaid, his successors and assigns, and a lessor includes an original or derivative under-lessor, and the executors, administrators, and assigns of a lessor, also a grantor as aforesaid, and his successors and assigns. (4) This section applies, although the proviso or stipulation under which the right of re-entry or forfeiture accrues is inserted in the lease in pursuance of the directions of any Act. (5) For the purposes of this section a lease limited to continue as long only as the lessee abstains from committing a breach of covenant shall be and take effect as a lease to continue for any longer term for which it could subsist but determinable by a proviso for re-entry on such a breach. (6) This section does not extend to a covenant or condition against the assigning, under-letting, parting with the possession, or disposing of the land leased, or to a condition for forfeiture on the bankruptcy of the lessee, or on the taking in execution of the lessee's interest, or, in the case of a lease of any premises in respect of which an hotel licence or public-house licence is in force under the Liquor Licensing Act 1990 , to a covenant not to do or omit any act or thing whereby the licence may be forfeited or the premises delicensed. (7) This section shall not affect the law relating to re-entry or forfeiture or relief in case of non-payment of rent. (8) This section applies to leases made either before or after the commencement of this Act, and shall have effect notwithstanding any stipulation to the contrary. 16. Effect of licences (1) Where a licence is granted to a lessee to do any act, the licence, unless otherwise expressed, extends only to – (a) the permission actually given; (b) the specific breach of any provision or covenant referred to; or (c) any other matter thereby specifically authorized to be done – and the licence does not prevent any proceeding for any subsequent breach unless otherwise specified in the licence. (2) Notwithstanding any such licence – (a) all rights under covenants and powers of re-entry contained in the lease remain in full force and are available as against any subsequent breach of covenant, condition, or matter not specifically authorized or waived in the same manner as if no licence had been granted; and (b) the condition or right of entry remains in force in all respects as if the licence had not been granted, save in respect of the particular matter authorized to be done. (3) Where in any lease there is a power or condition of re-entry on the lessee assigning, subletting, or doing any other specified act without a licence, and a licence is granted to – (a) any one of two or more lessees to do any act, or to deal with his equitable share or interest; or (b) any lessee, or any one of two or more lessees, to assign or underlet part only of the property, or to do any act in respect of part only of the property – the licence does not operate to extinguish the right of entry in case of any breach of covenant or condition by the co-lessees of the other shares or interests in the property, or by the lessee or lessees of the rest of the property, as the case may be, in respect of such shares or interests or remaining property, but the right of entry remains in force in respect of the shares, interests, or property not subject to the licence. (4) This section applies to licences granted after 4th October 1860. PART IV - Mortgages 17. Obligation on mortgagee to transfer instead of reconveying (1) Where a mortgagor is entitled to redeem, he shall, by virtue of this Act, have power to require the mortgagee, instead of reconveying, and on the terms on which he would be bound to reconvey, to assign the mortgage debt and convey the mortgaged property to any third person, as the mortgagor directs; and the mortgagee shall, by virtue of this Act, be bound to assign and convey accordingly. (2) The right conferred on the mortgagor by this section shall belong to and be capable of being enforced by each incumbrancer, or by the mortgagor, notwithstanding any intermediate incumbrance; but a requisition of an incumbrancer shall prevail over a requisition of the mortgagor, and, as between incumbrancers, a requisition of a prior incumbrancer shall prevail over a requisition of a subsequent incumbrancer. (3) This section does not apply in the case of a mortgagee being or having been in possession. (4) This section applies to mortgages made either before or after the commencement of this Act, and shall have effect notwithstanding any stipulation to the contrary. 18. Power of mortgagor to inspect title deeds (1) A mortgagor, as long as his right to redeem subsists, shall, by virtue of this Act, be entitled, at reasonable times, on his request, and at his own cost, and on payment of the mortgagee's costs and expenses in this behalf, to inspect and make copies or abstracts of or extracts from the documents of title relating to the mortgaged property in the custody or power of the mortgagee. (2) This section applies to mortgages made either before or after the commencement of this Act, and shall have effect notwithstanding any stipulation to the contrary. 19. Leasing power of mortgagor and mortgagee in possession (1) A mortgagor of land while in possession shall, as against every incumbrancer, have, by virtue of this Act, power to make any such lease of the mortgaged land, or any part thereof, as is in this section described and authorized. (2) A mortgagee of land while in possession shall, as against all prior incumbrancers, if any, and as against the mortgagor, have, by virtue of this Act, power to make any such lease as aforesaid. (3) The leases which this section authorizes are – (a) an agricultural or occupation lease for any term not exceeding 21 years; and (b) a building lease for any term not exceeding 99 years. (4) Every person making a lease under this section may execute and do all assurances and things necessary or proper in that behalf. (5) Every such lease shall be made to take effect in possession not later than 12 months after its date. (6) Every such lease shall reserve the best rent that can reasonably be obtained, regard being had to the circumstances of the case, but without any fine being taken. (7) Every such lease shall contain a covenant by the lessee for payment of the rent, and a condition of re-entry on the rent not being paid within a time therein specified not exceeding 30 days. (8) A counterpart of every such lease shall be executed by the lessee and delivered to the lessor, of which execution and delivery the execution of the lease by the lessor shall, in favour of the lessee and all persons deriving title under him, be sufficient evidence. (9) Every such building lease shall be made in consideration of the lessee, or some person by whose direction the lease is granted, having erected, or agreeing to erect within not more than 5 years from the date of the lease, buildings, new or additional, or having improved or repaired buildings, or agreeing to improve or repair buildings, within that time, or having executed, or agreeing to execute, within that time, on the land leased, an improvement for or in connection with building purposes. (10) In any such building lease a peppercorn rent, or a nominal or other rent less than the rent ultimately payable, may be made payable for the first 5 years, or any less part of the term. (11) In case of a lease by the mortgagor, he shall, within one month after making the lease, deliver to the mortgagee, or, where there are more than one, to the mortgagee first in priority, a counterpart of the lease duly executed by the lessee; but the lessee shall not be concerned to see that this provision is complied with. (12) A contract to make or accept a lease under this section may be enforced by or against every person on whom the lease if granted would be binding. (13) This section applies only if and as far as a contrary intention is not expressed by the mortgagor and mortgagee in the mortgage deed, or otherwise by them in writing, and shall have effect subject to the terms of the mortgage deed or of any such writing and to the provisions therein contained. (14) This section applies only in case of a mortgage made after the commencement of this Act; but the provisions thereof, or any of them, may, by agreement in writing made after the commencement of this Act, between mortgagor and mortgagee, be applied to a mortgage made before the commencement of this Act, so nevertheless, that any such agreement shall not prejudicially affect any right or interest of any mortgagee not joining in or adopting the agreement. (15) The provisions of this section referring to a lease shall be construed to extend and apply, as far as circumstances admit, to any letting, and to an agreement, whether in writing or not, for leasing or letting. 20. Further leasing powers; Limitation of term (1) Nothing in this Act shall prevent the mortgage deed from reserving to or conferring on the mortgagor or the mortgagee, or both, any further or other powers of leasing or having reference to leasing; and any further or other powers so reserved or conferred shall be exercisable, as far as may be, as if they were conferred by this Act, and with all the like incidents, effects, and consequences, unless a contrary intention is expressed in the mortgage deed. (2) Nothing in this Act shall be construed to enable a mortgagor or mortgagee to make a lease for any longer term or on any other conditions than such as could have been granted or imposed by the mortgagor, with the concurrence of all the incumbrancers, if this Act had not been passed. 21. Powers incident to estate or interest of mortgagee (1) A mortgagee, where the mortgage is made by deed, shall, by virtue of this Act, have the following powers, to the like extent as if they had been in terms conferred by the mortgage deed, but not further, namely, a power: (a) When the mortgage money or any interest thereon has become due, to sell, or to concur with any other person in selling, the mortgaged property, or any part thereof, either subject to proper charges or not, and either together or in lots, by public auction or by private contract, subject to such conditions respecting title, or evidence of title, or other matter, as he (the mortgagee) thinks fit, with power to vary any contract for sale, and to buy in at an auction, or to rescind any contract for sale, and to resell, without being answerable for any loss occasioned thereby; (b) At any time after the date of the mortgage deed, to insure and keep insured against loss or damage by fire any building, or any effects or property of an insurable nature, whether affixed to the freehold or not, being or forming part of the mortgaged property, in addition to the mortgage money, and with the same priority, and with interest at the same rate, as the mortgage money; (c) When the mortgage money has become due, to appoint a receiver of the income of the mortgaged property, or any part thereof; and (d) While the mortgagee is in possession, to cut and sell timber and other trees, not planted or left standing for shelter or ornament, or to contract for any such cutting and sale, to be completed within any time not exceeding 12 months from the making of the contract. (2) The provisions of this Act relating to the foregoing powers, comprised either in this section, or in any subsequent section regulating the exercise of those powers, may be varied or extended by the mortgage deed, and, as so varied or extended, shall, as far as may be, operate in the like manner and with all the like incidents, effects, and consequences, as if such variations or extensions were contained in this Act. (3) This section applies only if and as far as a contrary intention is not expressed in the mortgage deed, and shall have effect subject to the terms of the mortgage deed and to the provisions therein contained. (4) This section applies only where the mortgage deed is executed after the commencement of this Act. 22. Regulation of exercise of mortgagee's power of sale (1) A mortgagee shall not exercise the power of sale conferred by this Act unless and until notice of his intention to sell the mortgaged property, in consequence of default having been made in payment of the mortgage money, or part thereof, or of any interest due thereon, as the case may be, has been served on the mortgagor, or one of several mortgagors, or has been published in one or more newspapers in Tasmania at least one month before the date of such intended sale. (2) The notice required by this section may be a notice of a general intention to exercise the power of sale conferred on a mortgagee by this Act. (3) At any time subsequent to the termination of one month after such notice has been served on the mortgagor or one of several mortgagors, or has been published as provided by this section, and without any further notice of intention to sell in respect of the same default, the mortgagee may exercise the power of sale conferred by this Act. (4) Any mortgagor, by writing under his hand, may waive notice either in any particular case or generally, and may accept less than one month's notice. 23. Obligations and rights in respect of conveyance on sale by mortgagee (1) A mortgagee exercising the power of sale conferred by this Act shall have power, by deed, to convey the property sold, for such estate and interest therein as is the subject of the mortgage, freed from all estates, interests, and rights to which the mortgage has priority, but subject to all estates, interests, and rights which have priority to the mortgage. (2) Where a conveyance is made in professed exercise of the power of sale conferred by this Act, the title of the purchaser shall not be impeachable on the ground that no case had arisen to authorize the sale, or that due notice was not given, or that the power was otherwise improperly or irregularly exercised; but any person damnified by an unauthorized, or improper, or irregular exercise of the power shall have his remedy in damages against the person exercising the power. (3) The money which is received by the mortgagee, arising from the sale, after discharge of prior incumbrances to which the sale is not made subject, if any, or after payment into Court under this Act of a sum to meet any prior incumbrance, shall be held by him in trust to be applied by him, first, in payment of all costs, charges, and expenses, properly incurred by him, as incident to the sale or any attempted sale or otherwise; and secondly, in discharge of the mortgage money, interest, and costs, and other money, if any, owing under the mortgage; and the residue of the money so received shall be paid to the person entitled to the mortgaged property, or authorized to give receipts for the proceeds of the sale thereof. (4) The power of sale conferred by this Act may be exercised by any person for the time being entitled to receive and give a discharge for the mortgage money. (5) The power of sale conferred by this Act shall not affect the right of foreclosure. (6) The mortgagee, his executors, administrators, or assigns, shall not be answerable for any involuntary loss happening in or about the exercise or execution of the power of sale conferred by this Act or of any trust connected therewith. (7) At any time after the power of sale conferred by this Act has become exercisable, the person entitled to exercise the same may demand and recover from any person, other than a person having in the mortgaged property an estate, interest, or right in priority to the mortgage, all the deeds and documents relating to the property, or to the title thereto, which a purchaser under the power of sale would be entitled to demand and recover from him. 24. Mortgagee's receipts, discharges, &c. (1) The receipt in writing of a mortgagee shall be a sufficient discharge for any money arising under the power of sale conferred by this Act, or for any money or securities comprised in his mortgage or arising thereunder; and a person paying or transferring the same to the mortgagee shall not be concerned to inquire whether any money remains due under the mortgage. (2) Money received by a mortgagee under his mortgage or from the proceeds of securities comprised in his mortgage shall be applied in like manner as in this Act directed respecting money received by him arising from a sale under the power of sale conferred by this Act; but with this variation, that the costs, charges, and expenses payable shall include the costs, charges, and expenses properly incurred of recovering and receiving the money or securities, and of conversion of securities into money, instead of those incident to sale. 25. Insurance money: Amount and application of (1) The amount of an insurance effected by a mortgagee against loss or damage by fire under the power in that behalf conferred by this Act shall not exceed the amount specified in the mortgage deed, or, if no amount is therein specified, then shall not exceed two-third parts of the amount that would be required, in case of total destruction, to restore the property insured. (2) An insurance shall not, under the power conferred by this Act, be effected by a mortgagee in any of the following cases, namely: (a) Where there is a declaration in the mortgage deed that no insurance is required; (b) Where an insurance is kept up by or on behalf of the mortgagor in accordance with the mortgage deed; (c) Where the mortgage deed contains no stipulation respecting insurance, and an insurance is kept up by or on behalf of the mortgagor, to the amount in which the mortgagee is by this Act authorized to insure. (3) All money received on an insurance effected under the mortgage deed or under this Act shall, if the mortgagee so requires, be applied by the mortgagor in making good the loss or damage in respect of which the money is received. (4) Without prejudice to any obligation to the contrary imposed by law or by special contract, a mortgagee may require that all money received on an insurance be applied in or towards discharge of the money due under his mortgage. 26. Receivers (1) A mortgagee entitled to appoint a receiver under the power in that behalf conferred by this Act or by the Land Titles Act 1980 , shall not appoint a receiver until he has become entitled to exercise the power of sale conferred by this Act or by the Land Titles Act 1980 , but may then, by writing under his hand appoint such person as he thinks fit to be receiver. (2) The receiver shall be deemed to be the agent of the mortgagor; and the mortgagor shall be solely responsible for the receiver's acts or defaults, unless the mortgage deed otherwise provides. (3) The receiver shall have power to demand and recover all the income of the property of which he is appointed receiver, by action, distress, or otherwise, in the name either of the mortgagor or of the mortgagee, to the full extent of the estate or interest which the mortgagor could dispose of, and to give effectual receipts, accordingly, for the same. (4) A person paying money to the receiver shall not be concerned to inquire whether any case has happened to authorize the receiver to act. (5) The receiver may be removed, and a new receiver may be appointed, by the mortgagee by writing under his hand. (6) The receiver shall be entitled to retain out of any money received by him for his remuneration, and in satisfaction of all costs, charges, and expenses incurred by him as receiver, a commission at such rate, not exceeding 5 per centum on the gross amount of all money received, as is specified in his appointment, and if no rate is so specified then at the rate of 5 per centum on that gross amount, or at such higher rate as the Court thinks fit to allow, on application made by him for that purpose. (7) The receiver shall, if so directed in writing by the mortgagee, insure and keep insured against loss or damage by fire, out of the money received by him, any building, effects, or property comprised in the mortgage, whether affixed to the freehold or not, being of an insurable nature. (8) The receiver shall apply all money received by him as follows, namely: (a) In discharge of all rents, taxes, rates, and outgoings whatever affecting the mortgaged property; (b) In keeping down all annual sums or other payments, and the interest on all principal sums, having priority to the mortgage in right whereof he is receiver; (c) In payment of his commission and of the premiums on fire, life, or other insurances, if any, properly payable under the mortgage deed or under this Act, and the cost of executing necessary or proper repairs directed in writing by the mortgagee; and (d) In payment of the interest accruing due in respect of any principal money due under the mortgage – and shall pay the residue of the money received by him to the person who, but for the possession of the receiver, would have been entitled to receive the income of the mortgaged property, or who is otherwise entitled to that property. 27. Sale of mortgaged property in action for foreclosure, &c. (1) Any person entitled to redeem mortgaged property may have an order for sale instead of for redemption in an action brought by him, either for redemption alone, or for sale alone or for sale or redemption, in the alternative. (2) In any action, whether for foreclosure or for redemption, or for sale, or for the raising and payment in any manner of mortgage money, the Court, on the request of the mortgagee or of any person interested either in the mortgage money or in the right of redemption, and notwithstanding the dissent of any other person, and notwithstanding that the mortgagee or any person so interested does not appear in the action, and without allowing any time for redemption or for payment of any mortgage money, may, if it thinks fit, direct a sale of the mortgaged property, on such terms as it thinks fit, including, if it thinks fit, the deposit in Court of a reasonable sum fixed by the Court, to meet the expenses of sale and to secure performance of the terms. (3) In an action brought by a person interested in the right of redemption and seeking a sale, the Court may, on the application of any defendant, direct the plaintiff to give such security for costs as the Court thinks fit, and may give the conduct of the sale to any defendant, and may give such directions as it thinks fit respecting the costs of the defendants or any of them. (4) In any case within this section the Court may, if it thinks fit, direct a sale without previously determining the priorities of incumbrancers. PART V - Statutory Mortgage 28. Form of mortgage (1) A mortgage of freehold or leasehold land may be made by a deed expressed to be made by way of statutory mortgage, being in the form given in Part I of Schedule 1 , with such variations and additions, if any, as circumstances may require, and the provisions of this section shall apply thereto. (2) There shall be deemed to be included and there shall, by virtue of this Act, be implied, in the mortgage deed – First, a covenant with the mortgagee by the person expressed therein to convey as mortgagor to the effect following, namely: That the mortgagor will, on the stated day, pay to the mortgagee the stated mortgage money, with interest thereon in the meantime at the stated rate, by equal half-yearly payments, and will, after the stated day, if and as long as the mortgage money or any part thereof remains unpaid, pay to the mortgagee interest thereon, or on the unpaid part thereof, at the stated rate, by equal half-yearly payments, the first payment of interest to be made at the end of 6 months from the day on which the mortgage money shall have been advanced. Secondly, a proviso to the effect following, namely: That if the mortgagor, on the stated day, pays to the mortgagee the stated mortgage money, with interest thereon in the meantime at the stated rate, the mortgagee at any time thereafter, at the request and cost of the mortgagor, shall reconvey the mortgaged property to the mortgagor, or as he shall direct. 29. Forms of trans