Section 23: Conversion to personal pre-emption or redemption burden
94.This section allows a person with the right to enforce a qualifying condition which confers a right of pre-emption or redemption to convert that condition into a real burden to be known as a personal pre-emption burden or a personal redemption burden.
95.The entitled person is usually the landlord (of the qualifying lease or a superior lease) but in some circumstances is a neighbour.
96.Subsection (1) provides for the execution and registration of a notice. This must be done by the person with the right to enforce the qualifying condition. All pro indiviso landlords, for example, have to be parties to the notice.
97.Subsection (2) identifies the type of qualifying condition which may be converted.
98.Subsection (3) sets out the content of the notice. Further provision as to counter-obligations (paragraph (e)) is made in section 34.
99.Subsection (4) provides for registration of the notice against the burdened property. Registration can be against either the title of the owner or the title of the tenant.
100.Subsection (5) provides that the notice must be sworn or affirmed before a notary public. In the normal case this must be done personally but some exceptions are set out in subsection (6).
101.Subsection (7) converts the qualifying condition on the appointed day into a personal pre-emption burden or a personal redemption burden in favour of the person with the right to enforce (or that person’s successor) provided that the requirements of the section have been complied with and that immediately before the appointed day the qualifying condition is still enforceable.
102.Subsection (8) makes clear that the benefit of the burden in question can be assigned or otherwise transferred to any person.
103.Subsection (9) lays down that the assignation is completed by registration.
104.Subsection (11) provides the method for deduction of title in cases where under the general law deduction of title would be required.
105.The section is subject to section 36, which makes further provision in relation to notices, and section 75, which deals with pre-registration requirements for notices.
